Exhibit 4.3.2
CONFORMED COPY
U.S. $125,000,000
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of April 1, 1996
Among
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
CHEMICAL BANK
as Administrative Agent
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS 1
1.01. Certain Defined Terms 1
1.02. Computation of Time Periods 20
1.03. Accounting Terms 20
1.04. Computations of Outstandings 20
ARTICLE II
COMMITMENTS 20
2.01. The Commitments 20
2.02. Fees 21
2.03. Reduction of the Commitments 21
2.04. Extension of the Termination Date 22
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES 22
3.01. Contract Advances 22
3.02. Terms Relating to the Making of Contract Advances23
3.03. (a) Competitive Advances 23
3.04. Making of Advances 29
3.05. Repayment of Advances 30
3.06. Interest 30
3.07. Existing Revolving Credit Agreement 32
ARTICLE IV
PAYMENTS 32
4.01. Payments and Computations 32
4.02. Prepayments 34
4.03. Yield Protection 34
4.04. Sharing of Payments, Etc. 38
4.05. Taxes 39
ARTICLE V
CONDITIONS PRECEDENT 41
5.01. Conditions Precedent to Effectiveness 41
5.02. Conditions Precedent to Certain Contract Advances and
All Competitive Advances 45
5.03. Conditions Precedent to Other Contract Advances 46
5.04. Reliance on Certificates 47
ARTICLE VI
REPRESENTATIONS AND WARRANTIES 47
6.01. Representations and Warranties of the Borrower 47
ARTICLE VII
COVENANTS OF THE BORROWER 51
7.01. Affirmative Covenants 51
7.02. Negative Covenants 53
7.03. Reporting Obligations 57
ARTICLE VIII
DEFAULTS 62
8.01. Events of Default 62
8.02. Remedies Upon Events of Default 65
ARTICLE IX
THE ADMINISTRATIVE AGENT 66
9.01. Authorization and Action 66
9.02. Administrative Agent's Reliance, Etc. 66
9.03. Chemical and Affiliates 67
9.04. Lender Credit Decision 67
9.05. Indemnification 67
9.06. Successor Administrative Agent 68
ARTICLE X
MISCELLANEOUS 69
10.01. Amendments, Etc 69
10.02. Notices, Etc 69
10.03. No Waiver of Remedies 70
10.04. Costs, Expenses and Indemnification 70
10.05. Right of Set-off 71
10.06. Binding Effect 72
10.07. Assignments and Participation 72
10.08. Confidentiality 76
10.09. Certain Authorizations and Consent 77
10.10. Waiver of Jury Trial 78
10.11. Governing Law 78
10.12. Relation of the Parties; No Beneficiary 78
10.13. Execution in Counterparts 78
SCHEDULE
Schedule I - Applicable Lending Offices
EXHIBITS
Exhibit 1.01A - Form of Competitive Note
Exhibit 1.01B - Form of Contract Note
Exhibit 1.01C - Form of Collateral Agency Agreement
Exhibit 1.01D - Form of PSNH Mortgage Amendment
Exhibit 1.01E - Form of PSNH Mortgage Assignment
Exhibit 3.01A - Form of Notice of Contract Borrowing
Exhibit 3.04A-1 - Form of Competitive Bid Request
(Eurodollar Competitive Advance)
Exhibit 3.04A-2 - Form of Confirmation of Competitive Borrowing
(Fixed Rate Competitive Advance)
Exhibit 3.04B - Form of Notice of Competitive Bid Request
(Eurodollar Competitive Advance)
Exhibit 3.04C-1 - Form of Competitive Bid
(Eurodollar Competitive Advance)
Exhibit 3.04C-2 - Form of Confirmation of Competitive Bid
(Fixed Rate Competitive Advance)
Exhibit 3.04D - Form of Competitive Bid Letter
Exhibit 5.01A - Form of Opinion of Jeffrey C. Miller, Assistant
General Counsel to Northeast Utilities
Service Company
Exhibit 5.01B - Form of Opinion of Robert A. Bersak, Assistant
General Counsel to the Borrower
Exhibit 5.01C - Form of Opinion of Sulloway & Hollis,
special New Hampshire counsel to
the Borrower
Exhibit 5.01D - Form of Opinion of Drummond Woodsum
& MacMahon, special Maine
counsel to the Borrower
Exhibit 5.01E - Form of Opinion of Zuccaro, Willis & Bent,
special Vermont counsel to the Borrower
Exhibit 5.01F - Form of Opinion of King & Spalding,
counsel to the Administrative Agent
Exhibit 10.07 - Form of Lender Assignment
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of April 1, 1996
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this Agreement) is
made by and among:
(i) Public Service Company of New Hampshire, a corporation duly
organized and validly existing under the laws of the State of New
Hampshire (the "Borrower"),
(ii) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter defined) from
time to time party hereto, and
(iii) Chemical Bank ("Chemical"), as Administrative Agent for the
Lenders hereunder.
PRELIMINARY STATEMENT
The Borrower, certain lenders parties thereto and Chemical as
administrative agent thereunder, previously entered into the Existing
Revolving Credit Agreement (as hereinafter defined). The Borrower, the Banks
and the Administrative Agent now desire to amend and restate the Existing
Revolving Credit Agreement by entering into this Agreement, and, as well, to
enter into the Other Loan Documents (as hereinafter defined). Now therefore,
the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Advance" means a Contract Advance or a Competitive Advance (each
of which shall be a "Class" of Advance).
"Administrative Agent" means Chemical or any successor thereto as
provided herein.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct
or indirect common control with such Person. A Person shall be deemed
to control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement for Capacity Transfer" means the Agreement for Capacity
Transfer, dated as of December 1, 1989, between The Connecticut Light
and Power Company and the Borrower as amended by the First Amendment to
Agreement for Capacity Transfer, dated as of May 1, 1992, which provides
for capacity transfers from the Borrower to The Connecticut Light and
Power Company.
"Alternate Base Rate" means, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/8 of 1%) equal to the greater of:
(a) the Prime Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1% per annum.
For purposes hereof, the term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by Chemical as
its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is
publicly announced. If the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime
Rate or the Federal Funds Rate, respectively.
"Applicable Facility Fee Rate" means, for any day, the percentage
per annum set forth below in effect on such day, determined on the basis
of the Applicable Rating Level:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Applicable 0.20% 0.25% 0.375% 0.50%
Faciity Fee Rate
Any change in the Applicable Facility Fee Rate caused by a change in the
Applicable Rating Level shall take effect at the time such change in the
Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance, or (B) such Lender's "Domestic Lending Office" in the case
of a Base Rate Advance, in each case as specified opposite such
Lender's name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender; or
(ii) in the case of any Competitive Advance, the office or
affiliate of such Lender identified as the Applicable Lending
Office in such Lender's Competitive Bid tendered pursuant to
Section 3.03 hereof; or
(iii) in each case, such other office or affiliate of such
Lender as such Lender may from time to time specify in writing to
the Borrower and the Administrative Agent.
"Applicable Margin" means, for any day for any outstanding Contract
Advance, the percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level:
Type of Rating Rating Rating Rating
Advance Level I Level II Level III Level IV
Eurodollar 0.55% 0.75% 0.875% 1.25%
Rate
Base Rate 0.00% 0.00% 0.00% 0.00%
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means:
(i) in the case of each Eurodollar Rate Advance comprising
part of the same Borrowing, a rate per annum during each Interest
Period equal at all times to the sum of the Eurodollar Rate for
such Interest Period plus the Applicable Margin in effect from time
to time during such Interest Period;
(ii) in the case of each Base Rate Advance, a rate per annum
equal at all times to the sum of the Alternate Base Rate in effect
from time to time plus the Applicable Margin in effect from time to
time;
(iii) in the case of each Eurodollar Competitive Advance,
a rate per annum during the Interest Period therefor, equal at all
times to the sum of the Eurodollar Rate for such Interest Period
plus or minus, as the case may be, the Competitive Margin in effect
during such Interest Period; and
(iv) in the case of each Fixed Rate Competitive Advance, at a
rate per annum during the Interest Period therefor, equal at all
times to the rate specified by such Lender in its Competitive Bid
and accepted by the Borrower for such Competitive Advance in
accordance with Section 3.03(b)(iv) hereof.
"Applicable Rating Level" shall be determined at any time and from
time to time on the basis of the long-term ratings of S&P and Moody's
applicable at such time to the Borrower's First Mortgage Bonds not
entitled to external credit support (or other senior secured debt
securities not entitled to external credit support if no First Mortgage
Bonds are then outstanding) in accordance with the following:
Rating Rating Rating Rating
Level I Level II Level III Level IV
BBB- or higher BB+ and Ba1 BB and Ba2 BB- or Ba3 or
and Baa3 or below (all
higher other cases)
In the event of a split rating, the lower of the two ratings shall
control. The Applicable Rating Level shall be redetermined as and when
any change in the ratings used in the determination thereof shall be
announced by S&P or Moody's, as the case may be.
"Available Commitment" means, for each Lender, the unused portion
of such Lender's Commitment (which shall be equal to the excess, if any,
of such Lender's Commitment over such Lender's Contract Advances
outstanding), less such Lender's Percentage of the aggregate amount of
Competitive Advances outstanding. "Available Commitments" shall refer
to the aggregate of the Lenders' Available Commitments hereunder.
"Base Rate Advance" means a Contract Advance in respect of which
the Borrower has selected in accordance with Article III hereof, or this
Agreement provides for, interest to be computed on the basis of the
Alternate Base Rate.
"Borrowing" means a Contract Borrowing or Competitive Borrowing
(each of which shall be a "Class" of Borrowing).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances or Eurodollar
Competitive Advances, on which dealings are carried on in the London
interbank market.
"CSI" means Chemical Securities Inc.
"Class" has the meaning assigned to such term (i) in the definition
of "Advance" when used in such context and (ii) in the definition of
"Borrowing" when used in such context.
"Closing" means the fulfilment of each of the conditions precedent
enumerated in Section 5.01 hereof to the satisfaction of the Lenders,
the Administrative Agent and the Borrower. All transactions
contemplated by the Closing shall take place on or prior to May 15,
1996, at the offices of King & Spalding, 120 West 45th Street, New York,
New York 10036, at 10:00 a.m. (New York City time), or such other place
and time as the parties hereto may mutually agree (the "Closing Date").
"Collateral" means all of the collateral in which liens, mortgages
or security interests are purported to be granted by any or all of the
Security Documents.
"Collateral Agency Agreement" means an Amended and Restated
Collateral Agency Agreement in substantially the form of Exhibit 1.01C
hereto, as the same may be amended, supplemented or otherwise modified
from time to time.
"Collateral Agent" means Chemical or any successor thereto as
provided in the Collateral Agency Agreement.
"Commitment" means, for each Lender, the aggregate amount set forth
opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into one or more Lender Assignments, set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders' Commitments
hereunder.
"Common Equity" means, at any date, an amount equal to the sum of
the aggregate of the par value of, or stated capital represented by, the
outstanding shares of common stock of the Borrower and the surplus,
paid-in, earned and other, if any, of the Borrower.
"Competitive Advance" means an advance by a Lender to the Borrower
as part of a Competitive Borrowing and refers to a Fixed Rate
Competitive Advance or a Eurodollar Competitive Advance (each of which
shall be a "Type" of Competitive Advance).
"Competitive Bid" means an offer by a Lender to make a Competitive
Advance under the competitive bidding procedure described in
Section 3.03(b).
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 3.03(b)(iv), (i) in the case of a Eurodollar
Competitive Advance, the Competitive Margin and (ii) in the case of a
Fixed Rate Competitive Advance, the fixed rate of interest offered by
such Lender making such Competitive Bid.
"Competitive Bid Letter" means a letter in the form of
Exhibit 3.03D hereto.
"Competitive Bid Request" means a request made by the Borrower
pursuant to Section 3.03(b)(i) in the form of Exhibit 3.03A-1 hereto.
"Competitive Borrowing" means a borrowing consisting of one or more
Competitive Advances of the same Type and Interest Period made on the
same day by each of the Lenders whose Competitive Bid to make one or
more Competitive Advances as part of such Borrowing has been accepted by
the Borrower under the competitive bidding procedure described in
Section 3.03(b). A Competitive Borrowing may be referred to herein as
being a "Type" of Competitive Borrowing, corresponding to the Type of
Competitive Advances comprising such Borrowing.
"Competitive Margin" means, with respect to any Eurodollar
Competitive Advance, the percentage per annum (expressed in the form of
a decimal to no more than four decimal places) to be added to or
subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Advance, as specified in the Competitive Bid
relating to such Advance.
"Competitive Note" means a promissory note of the Borrower payable
to the order of a Lender, in substantially the form of Exhibit 1.01A
hereto, evidencing the indebtedness of the Borrower to such Lender from
time to time resulting from Competitive Advances made by such Lender.
"Confidential Information" has the meaning assigned to that term in
Section 10.08.
"Contract Advance" means an advance by a Lender to the Borrower
pursuant to Section 3.01 hereof and refers to a Eurodollar Rate Advance
or a Base Rate Advance (each of which shall be a "Type" of Contract
Advance). For purposes of this Agreement, all Contract Advances of a
Lender (or portions thereof) of the same Type and Interest Period made
on the same day shall be deemed to be a single Advance by such Lender
until repaid.
"Contract Borrowing" means a borrowing consisting of Contract
Advances of the same Type and Interest Period made on the same day by
the Lenders, ratably in accordance with their respective Commitments. A
Contract Borrowing may be referred to herein as being a "Type" of
Contract Borrowing, corresponding to the Type of Contract Advances
comprising such Borrowing. For purposes of this Agreement, all Contract
Advances of the same Type and Interest Period made on the same day shall
be deemed a single Contract Borrowing hereunder until repaid.
"Contract Note" means a promissory note of the Borrower payable to
the order of a Lender, in substantially the form of Exhibit 1.01B
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Contract Advances made by such Lender.
"Debt" means, for any Person, without duplication, (i) indebtedness
of such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations of such Person to pay the deferred purchase price of
property or services, (iv) obligations of such Person as lessee under
leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases (but
excluding the Unit Contract), (v) obligations (contingent or otherwise)
of such Person under reimbursement or similar agreements with respect to
the issuance of letters of credit, (vi) net obligations (contingent or
otherwise) of such Person under interest rate swap, "cap", "collar" or
other hedging agreements, (vii) obligations of such person to pay rent
or other amounts under leases entered into in connection with sale and
leaseback transactions involving assets of such Person being sold in
connection therewith, (viii) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (vii), above, and (ix) liabilities in
respect of unfunded vested benefits under ERISA Plans.
"Debt Limit" means the limitation on the incurrence of short-term
debt applicable to the Borrower in effect from time to time either in
accordance with applicable law or a waiver thereof granted by competent
governmental authority, including without limitation, the New Hampshire
Public Utilities Commission.
"Disclosure Documents" means the Information Memorandum, the
Borrower's 1995 Annual Report, the Borrower's Annual Report on Form 10-K
for the year ended December 31, 1995, and any Current Report on Form 8-K
of the Borrower filed by the Borrower with the Securities and Exchange
Commission after January 31, 1996, and furnished to the Banks prior to
the execution and delivery of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a "commonly controlled
entity" of the Borrower within the meaning of the regulations under
Section 414 of the Internal Revenue Code of 1986, as amended from time
to time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject to
Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of the Borrower or any
ERISA Affiliate and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued thereunder
(other than a Reportable Event not subject to the provision for 30-day
notice to the PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of the Borrower
or any of its ERISA Affiliates from an ERISA Plan or an ERISA
Multiemployer Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing
of a notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan or an ERISA
Multiemployer Plan under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate an ERISA Plan or an ERISA Multiemployer Plan
by the PBGC, or (v) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or ERISA
Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Competitive Advance" means a Competitive Advance in
respect of which the Borrower has selected in accordance with
Section 3.03 hereof, and this Agreement provides, interest to be
computed on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance or Eurodollar Competitive Advance comprising
part of the same Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the rates per annum at
which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period in an amount of $1,000,000
and for a period equal to such Interest Period. The Eurodollar Rate for
the Interest Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Sections 3.06(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of
which the Borrower has selected in accordance with Article III hereof,
and this Agreement provides for, interest to be computed on the basis of
the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender for each Interest
Period for each Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under Regulation D or other regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement, without benefit of or credit for
proration, exemptions or offsets) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Collateral Agency Agreement" means the Collateral Agency
Agreement, dated as of May 1, 1991, among the Borrower, Bankers Trust
Company, as Collateral Agent, Citibank, N.A., as Term Agent, Chemical,
as Revolving Agent, and certain other holders of secured claims referred
to herein.
"Existing Revolving Credit Agreement" means the Revolving Credit
Agreement, dated as of May 1, 1991, among the Borrower, Bankers Trust
Company, Chemical and Citibank, N.A. as Co-Agents and Chemical, as
Administrative Agent, and the lenders from time to time party thereto,
as amended by the First Amendment to the Revolving Credit Agreement,
dated as of May 11, 1994, among the parties to the Revolving Credit
Agreement.
"Facility" means the facility made available to the Borrower by
each of the Lenders under Sections 2.01(a), 3.01 and 3.03 to request,
prepay and repay Advances in connection with each Lender's Commitment.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the Fee Letter, dated as of February 15, 1996,
among the Borrower, NUSCO, Chemical and CSI.
"First Mortgage Bond Amount" means $950,000,000.
"First Mortgage Bonds" means first mortgage bonds in the maximum
aggregate principal amount of up to the First Mortgage Bond Amount
issued or to be issued by the Borrower and secured, directly or
indirectly, collectively or severally, by one or more first-priority
liens on all or part of the Indenture Assets pursuant to the First
Mortgage Indenture or another indenture in form and substance
satisfactory to the Majority Lenders. For purposes hereof, all or part
of the First Mortgage Bonds may be issued as collateral for pollution
control revenue bonds or industrial revenue bonds, whether taxable or
tax exempt, issued by the Borrower or by a governmental authority at the
Borrower's request (any such pollution control revenue bonds or
industrial revenue bonds being included, without duplication as to the
principal amount of First Mortgage Bonds securing the same, within the
definition hereunder of "First Mortgage Bonds").
"First Mortgage Indenture" means the General and Refunding Mortgage
Indenture, between the Borrower and New England Merchants National Bank,
as trustee and to which First Fidelity Bank, National Association, New
Jersey, is successor trustee, dated as of August 15, 1978, as amended
and supplemented through the date hereof, as the same may hereafter be
amended, supplemented or modified from time to time.
"Fixed Rate Competitive Advance" means a Competitive Advance in
respect of which the Borrower has selected in accordance with
Section 3.03(b)(iv) hereof, and this Agreement provides, interest to be
computed on the basis of a fixed percentage rate per annum (expressed in
the form of a decimal to no more than four decimal places) specified by
the Lender making such Advance in its Competitive Bid.
"Governmental Approval" means any authorization, consent, approval,
license, permit, certificate, exemption of, or filing or registration
with, any governmental authority or other legal or regulatory body,
required in connection with any of (i) the execution, delivery or
performance of the Rate Agreement, any Loan Document or any Significant
Contract, (ii) the grant and perfection of any security interest, lien
or mortgage contemplated by the Security Documents, or (iii) the nature
of the Borrower's business as conducted or the nature of the property
owned or leased by it. For purposes of this Agreement, Chapter 362-C of
the Revised Statutes Annotated of New Hampshire, as in effect on the
date hereof, shall be deemed to be a Governmental Approval.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United
States of America or of the State or locality in which the same is
located having or exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Indenture Assets" means fixed assets of the Borrower (including
related Governmental Approvals and regulatory assets, but excluding the
Seabrook Interests) which from time to time are subject to the first-
priority lien under the First Mortgage Indenture.
"Information Memorandum" means the Confidential Information
Memorandum, dated February 1996, regarding the Borrower and NU, as
distributed to the Administrative Agent and the Lenders, including all
schedules and attachments thereto.
"Interest Expense" means, for any period, the aggregate amount of
any interest on Debt (including long-term and short-term Debt).
'Interest Period" has the meaning assigned to that term in
Section 3.06(a) hereof.
"Lender Assignment" means an assignment and agreement entered into
by a Lender and an assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the signature
pages hereof, and each assignee that shall become a party hereto
pursuant to Section 10.07.
"Lien" has the meaning assigned to that term in Section 7.02(a)
hereof.
"Loan Documents" means this Agreement, the Notes and the Security
Documents (as each may be amended, supplemented or otherwise modified
from time to time).
"Major Electric Generating Plants" means the following generating
stations of the Borrower: the Merrimack generating station located in
Bow, New Hampshire; the Newington generating station located in
Newington, New Hampshire; the Schiller generating station located in
Portsmouth, New Hampshire; the White Lake combustion turbine located in
Tamworth, New Hampshire; the Millstone Unit No. 3 generating station
located in Waterford, Connecticut, and the Wyman Unit No. 4 generating
station located in Yarmouth, Maine.
"Majority Lenders" means on any date of determination, Lenders who,
collectively, on such date (i) hold at least 66-2/3% of the then
aggregate unpaid principal amount of the Advances owing to the Lenders
and (ii) have Percentages in the aggregate of at least 66-2/3%.
Determination of those Lenders satisfying the criteria specified above
for action by the Majority Lenders shall be made by the Administrative
Agent and shall be conclusive and binding on all parties absent manifest
error.
"Merger" means (i) the merger on June 5, 1992 of NU Acquisition
Corp., a wholly owned subsidiary of NU, with and into the Borrower and
(ii) the transfer on the same date by the Borrower, as so merged, to
NAEC of the Seabrook Interests in accordance with the Rate Agreement.
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"NAEC" means North Atlantic Energy Corporation, a corporation
wholly owned by NU which acquired the Seabrook Interests from the
Borrower on June 5, 1992.
"Note" means a Contract Note or a Competitive Note, as each may be
amended, supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that
term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated voluntary
business association organized under the laws of the Commonwealth of
Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation and a wholly owned subsidiary of NU.
"Operating Income" means, for any period, the Borrower's operating
income for such period, adjusted as follows:
(i) increased by the amount of income taxes (including New
Hampshire Business Profits Tax and other comparable taxes) paid by
the Borrower during such period, if and to the extent deducted in
the computation of the Borrower's operating income for such period;
and
(ii) increased by the amount of any depreciation deducted by
the Borrower during such period; and
(iii) increased by the amount of any amortization of
acquisition adjustment deducted by the Borrower during such period;
and
(iv) decreased by the amount of any capital expenditures paid
by the Borrower during such period.
"Other Loan Documents" means the 364-Day Revolving Credit
Agreement, dated as of April 1, 1996 among the Borrower, the lenders
from time to time parties thereto and Chemical, as administrative agent
thereunder, together with the other "Loan Documents" referred to
therein.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such day by the total of the Commitments on such day, and
multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PSNH Mortgage" means the Mortgage, Assignment, Security Agreement
and Financing Statement, dated as of May 1, 1991, by the Borrower to
Bankers Trust Company, as assigned pursuant to the PSNH Mortgage
Assignment, and as amended by PSNH Mortgage Amendment, as the same may
be further amended, supplemented or otherwise modified from time to
time.
"PSNH Mortgage Amendment" means the First Amendment to the PSNH
Mortgage, dated on or about the Closing Date, by the Borrower and the
Collateral Agent, in substantially the form of Exhibit 1.01D hereto.
"PSNH Mortgage Assignment" means the Replacement of Collateral
Agent, together with Assignment by Mortgagee, Assignee and Secured
Party, dated on or about the Closing Date, among Bankers Trust Company,
as former Collateral Agent, Chemical, as successor Collateral Agent, and
the Borrower.
"Rate Agreement" means the Agreement dated as of November 22, 1989,
as amended by the First Amendment to Rate Agreement dated as of December
5, 1989, the Second Amendment to Rate Agreement dated as of December 12,
1989, the Third Amendment to Rate Agreement dated as of December 28,
1993, the Fourth Amendment to Rate Agreement dated as of September 21,
1994 and the Fifth Amendment to Rate Agreement dated as of September 9,
1994, among NUSCO, the Governor and Attorney General of the State of New
Hampshire and adopted by the Borrower as of July 10, 1990 (excluding the
Unit Contract appended as Exhibit A thereto subsequent to the
effectiveness of such contract).
"Recipient" has the meaning assigned to that term in Section 10.08
hereof.
"Reference Banks" means Chemical, Citibank, N.A. and Bank of
America National Trust and Savings Association.
"Register" has the meaning specified in Section 10.07(c).
"S&P" means Standard and Poor's Ratings Group or any successor
thereto.
"Seabrook" means the nuclear-fueled, steam-electric generating
plant at a site located in Seabrook, New Hampshire, and the real
property interests and other fixed assets of such plant.
"Seabrook Interests" means all right, title and interest of the
Borrower, prior to the Merger, in and to the fixed assets of Seabrook,
nuclear fuel relating to Seabrook and Governmental Approvals relating
thereto, including the undeveloped land adjacent to Seabrook and
described as the "Adjacent Property" in Schedule D to the PSNH Mortgage.
"Secured Party" has the meaning assigned to that term in the
Collateral Agency Agreement.
"Security Documents" means the PSNH Mortgage and the Collateral
Agency Agreement (as the same may be amended, supplemented or otherwise
modified from time to time).
"Series D Reimbursement Agreement" means (a) the Second Series D
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
among the Borrower, Barclays Bank PLC, New York Branch, and the
Participating Banks named therein relating to: (i) the Industrial
Development Authority of the State of New Hampshire Pollution Control
Revenue Bonds (Public Service Company of New Hampshire Project - 1991
Taxable Series D), (ii) Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds (Public Service
Company of New Hampshire Project - 1992 Tax Exempt Series D) and (iii)
any other series of "Tax-Exempt Refunding Bonds" issued from time to
time in respect of the foregoing, as such agreement may from time to
time be amended, modified or supplemented, and (b) any similar agreement
entered into in respect of letters of credit or other credit enhancement
facilities issued in support of any of the foregoing.
"Series E Reimbursement Agreement" means (a) the Second Series E
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
among the Borrower, Swiss Bank Corporation, New York Branch, and the
Participating Banks named therein relating to: (i) 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), (ii) 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) and (iii)
any other series of "Tax-Exempt Refunding Bonds" issued from time to
time in respect of the foregoing, as such agreement may from time to
time be amended, modified or supplemented, and (b) any similar agreement
entered into in respect of letters of credit or other credit enhancement
facilities issued in support of any of the foregoing.
"Sharing Agreement" means the Sharing Agreement, dated as of June
1, 1992, among The Connecticut Light and Power Company, Western
Massachusetts Electric Company, Holyoke Water Power Company, Holyoke
Power and Electric Company, the Borrower and NUSCO.
"Significant Contracts" means the following contracts, in each case
as the same may be amended, modified or supplemented from time to time
in accordance with this Agreement:
(i) the Agreement for Capacity Transfer;
(ii) the Sharing Agreement;
(iii) the Tax Allocation Agreement; and
(iv) the Unit Contract.
"Tax Allocation Agreement" means the Tax Allocation Agreement dated
as of January 1, 1990 among NU and the members of the consolidated group
of which NU is the common parent, including, without limitation, the
Borrower.
"Termination Date" means the earlier to occur of (i) April 30,
1999, or such later date to which the Termination Date shall be extended
in accordance with Section 2.04, (i) May 15, 1996, if the Closing Date
shall not have occurred on or prior to such date, (ii)the date of
termination or reduction in whole of the Commitments pursuant to Section
2.03 or 8.02 or (iii) the date of acceleration of all amounts payable
hereunder and under the Notes pursuant to Section 8.02.
"Total Capitalization" means, as of any day, the aggregate of all
amounts that would, in accordance with generally accepted accounting
principles applied on a basis consistent with the standards referred to
in Section 1.03 hereof, appear on the balance sheet of the Borrower as
of such day as the sum of (i) the principal amount of all long-term Debt
of the Borrower on such day, (ii) the par value of, or stated capital
represented by, the outstanding shares of all classes of common and
preferred shares of the Borrower on such day, (iii) the surplus of the
Borrower, paid-in, earned and other, if any, on such day and (iv) the
unpaid principal amount of all short-term Debt of the Borrower on such
day.
"Type" has the meaning assigned to such term (i) in the definition
of "Contract Advance" when used in the such context and (ii) in the
definition of "Contract Borrowing" when used in such context.
"Unit Contract" means the Unit Contract, dated as of June 5, 1992,
between the Borrower and NAEC.
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
SECTION 1.02 Computation of Time Periods. In the computation of
periods of time under this Agreement any period of a specified number of days
or months shall be computed by including the first day or month occurring
during such period and excluding the last such day or month. In the case of
a period of time "from" a specified date "to" or "until" a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles applied on a basis consistent with the application
employed in the preparation of the financial projections referred to in
Section 5.01 hereof.
SECTION 1.04 Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount outstanding on any date under this
Agreement, such reference shall refer to the sum of the aggregate principal
amount of all Advances outstanding on such date in each case after giving
effect to all Advances to be made on such date and the application of the
proceeds thereof.
ARTICLE II
COMMITMENTS
SECTION 2.01 The Commitments. (a) Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Closing Date
until the Termination Date in an aggregate outstanding amount not to exceed
on any day such Lender's Available Commitment (after giving effect to all
Advances to be made on such day and the application of the proceeds thereof).
Within the limits of each Lender's Available Commitment, the Borrower may
request Advances hereunder, repay or prepay Advances and utilize the
resulting increase in the Available Commitments for further Advances in
accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive
any Advance under subsection (a) that would cause the total principal amount
advanced pursuant to thereto to exceed the Available Commitment. In no event
shall the Borrower be entitled to request or receive any Advance that would
cause the total principal amount outstanding hereunder to exceed the
Commitments.
(c) In addition to each Lender's Commitment under subsection (a) above,
but subject nevertheless to the provisions of subsection (b) above, the
Borrower may request Competitive Advances to be made at the discretion of
each Lender, in accordance with Section 3.03 hereof.
SECTION 2.02 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee on the
amount of such Lender's Commitment (whether used or unused) at the Applicable
Facility Fee Rate, effective as of April 15, 1996 (as if the Commitment were
effective as of such date), in the case of each Bank, and from the effective
date specified in the Lender Assignment pursuant to which it became a Lender,
in the case of each other Lender, until the Termination Date, payable
quarterly in arrears on the last day of each March, June, September and
December, commencing the first such date following the Closing Date, with
final payment payable on the Termination Date.
(b) The Borrower agrees to pay to the Administrative Agent and to CSI
the fees specified in the Fee Letter, together with such other fees as may be
separately agreed to between the Borrower and the Administrative Agent.
SECTION 2.03 Reduction of the Commitments. (a) The Borrower may, upon
at least five Business Days' notice to the Administrative Agent, terminate in
whole or reduce ratably in part the Available Commitments of the respective
Lenders; provided (i) that any such partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) that in no event shall the aggregate Commitments be
reduced hereunder to an amount less than the principal amount outstanding
hereunder and (iii) that in no event shall the Commitments be reduced to an
amount less than the aggregate principal amount of Advances then outstanding.
(b) If the Closing Date does not occur on or prior to May 15, 1996, the
Commitment of each Lender shall automatically terminate.
SECTION 2.04 Extension of the Termination Date. Unless the Termination
Date shall have previously occurred in accordance with its terms, at least
105 days but not more than 120 days before the Termination Date, as then in
effect, the Borrower may, by notice to the Administrative Agent (any such
notice being irrevocable), request the Administrative Agent and the Lenders
to extend the Termination Date for a period of one year. If the Borrower
shall make such request, the Administrative Agent shall promptly inform the
Lenders and, no later than 60 days prior to the Termination Date as then in
effect, the Administrative Agent shall notify the Borrower in writing if the
Administrative Agent and the Lenders consent to such request and the
conditions of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary governmental
approvals). The granting of any such consent shall be in the sole and
absolute discretion of the Administrative Agent and each Lender, and if the
Administrative Agent shall not so notify the Borrower, such lack of
notification shall be deemed to be a determination not to consent to such
request. No such extension shall occur unless the Administrative Agent and
all Lenders consent thereto (or if less than all the Lenders consent thereto,
unless one or more other existing Lenders, or one or more other banks and
financial institutions acceptable to the Borrower and the Administrative
Agent, agree to assume all of the Commitments of the non-consenting Lenders).
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
SECTION 3.01 Contract Advances. Each Contract Borrowing shall consist
of Contract Advances of the same Type and Interest Period made on the same
Business Day by the Lenders ratably according to their respective
Commitments. The Borrower may request that more than one Borrowing be made
on the same day. Each Contract Borrowing shall be made on notice, given not
later than 11:00 a.m. (New York City time) (i) in the case of Eurodollar Rate
Advances, on the third Business Day prior to the date of the proposed
Borrowing and (ii) in the case of Base Rate Advances, on the day of the
proposed Borrowing, by the Borrower to the Administrative Agent, who shall
give to each Lender prompt notice thereof on the same day such notice is
received. Each such notice of a Contract Borrowing (a "Notice of Contract
Borrowing") shall be in substantially the form of Exhibit 3.01A hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing and (iii) Interest Period for each such
Advance. Each proposed Borrowing shall be subject to the provisions of
Sections 3.02, 4.03 and Article V hereof.
SECTION 3.02 Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than ten different Contract Borrowings
be outstanding hereunder;
(ii) each Contract Borrowing hereunder shall be in an aggregate
principal amount of not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, or such lesser amount as shall be equal to
the total amount of the Available Commitments for Contract Advances on
such date after giving effect to all other Contract Borrowings to be
made on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate principal
amount of not less than $10,000,000.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
SECTION 3.03 (a) Competitive Advances. Each Competitive Borrowing
shall consist of Competitive Advances of the same Type and Interest Period
made by the Lenders in accordance with this Section 3.03 and shall be in a
minimum aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, except as otherwise provided pursuant to
Section 3.03(b)(iv) hereof. Competitive Advances shall be made in the
amounts accepted by the Borrower in accordance with Section 3.03(b)(iv).
Each Competitive Advance, regardless of which Lender makes such Advance, will
reduce the Available Commitments of all Lenders pro rata as provided in the
definition of "Available Commitments" in Section 1.01 hereof. Promptly after
each Competitive Borrowing, the Administrative Agent will notify each Lender
of the amount of the Competitive Borrowing, the amount by which such Lender's
Available Commitment has been reduced, the date of the Competitive Borrowing
and the Interest Period with respect thereto.
(b) Competitive Bid Procedures.
(i) In order to request Competitive Bids, (A) in the case of any
request for Eurodollar Competitive Advances, the Borrower shall hand
deliver, telex or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit 3.03A-1 to be received by
the Administrative Agent not later than 10:00 a.m. (New York City time),
four Business Days prior to a proposed Competitive Borrowing to consist
of Eurodollar Competitive Advances and (B) in the case of any request
for Fixed Rate Competitive Advances, the Borrower shall give telephonic
notice of a proposed Competitive Borrowing to consist of Fixed Rate
Competitive Advances to the Administrative Agent not later than
9:15 a.m. (New York City time) on the day of a proposed Competitive
Borrowing (with written confirmation of the information given by
telephone substantially in the form of Exhibit 3.03A-2 delivered by
hand, telecopy or telex by the Borrower to the Administrative Agent no
later than 5:00 p.m. (New York City time) on the day of such Competitive
Borrowing.) No Contract Advances shall be requested in or made pursuant
to a Competitive Bid Request. A Competitive Bid Request which requests
Eurodollar Competitive Advances that does not conform substantially to
the form of Exhibit 3.03A-1 or 3.03A-2, as applicable, may be rejected
in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by telex or
telecopier. Such request shall refer to this Agreement and specify
(1) the Lenders selected by the Borrower to make a Competitive Bid
(which shall be no more than six Lenders), (2) the date of such
Competitive Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof (which shall not be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof), (3) the Interest
Period with respect thereto and (4) whether the Borrowing then being
requested is to consist of Eurodollar Competitive Advances or Fixed Rate
Competitive Advances. Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, the Administrative Agent
shall (A) in the case of a proposed Competitive Borrowing to consist of
Eurodollar Competitive Advances, invite by telex or telecopier (in the
form of Exhibit 3.03B hereto) the selected Lenders to bid to make
Competitive Advances pursuant to the Competitive Bid Request and (B) in
the case of a proposed Competitive Borrowing to consist of Fixed Rate
Competitive Advances, not later than 9:30 a.m. (New York City time) on
the day of such Competitive Bid Request, invite the selected Lenders by
telephone to make Competitive Advances pursuant to the Competitive Bid
Request, in accordance with the terms and conditions of this Agreement.
(ii) Each selected Lender may, in its sole discretion, make one or
more Competitive Bids to the Borrower which shall be responsive to the
Competitive Bid Request. Each Competitive Bid by such Lender must be
received by the Administrative Agent (A) in the case of a proposed
Competitive Borrowing to consist of Eurodollar Competitive Advances, by
telex or telecopier (in the form of Exhibit 3.03C-1 hereto) not later
than 9:30 a.m. (New York City time), three Business Days prior to a
proposed Competitive Borrowing and (B) in the case of a proposed
Competitive Borrowing to consist of Fixed Rate Competitive Advances not
later than 9:45 a.m. (New York City time) on the day of a proposed
Competitive Borrowing (subsequently confirmed in writing, not later than
11:00 a.m. (New York City time) substantially in the form of
Exhibit 3.03C-2 hereto). Multiple bids will be accepted by the
Administrative Agent. Competitive Bids, with respect to Eurodollar
Competitive Advances, that do not conform substantially to the format of
Exhibit 3.03C-1 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such non-conforming
bid of such rejection as soon as practicable. Each bid (a "Competitive
Bid") shall refer to this Agreement and specify (A) the principal amount
(which shall be a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may be up to the aggregate
amount of the proposed Competitive Borrowing regardless of the
Commitment of the Lender) of the Competitive Advance that the Lender is
willing to make to the Borrower and (B) the Competitive Bid Rate or
Rates at which the Lender is prepared to make the Competitive Advances.
If any selected Lender shall elect not to make a Competitive Bid, such
Lender shall so notify the Administrative Agent (A) in the case of a
proposed Competitive Borrowing to consist of Eurodollar Competitive
Advances, by telex or telecopier, not later than 9:30 a.m. (New York
City time), three Business Days prior to a proposed Competitive
Borrowing, and (B) in the case of a proposed Competitive Borrowing to
consist of Fixed Rate Competitive Advances, by telephone, telex or
telecopier not later than 9:45 a.m. (New York City time) on the day of a
proposed Competitive Borrowing; provided, however, that failure by any
Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Advance. A Competitive Bid submitted by a
Lender pursuant to this subsection (ii) shall be irrevocable.
(iii) The Administrative Agent shall (A) in the case of a
proposed Borrowing to consist of Eurodollar Competitive Advances,
promptly notify the Borrower by telex or telecopier and (B) in the case
of a proposed Borrowing to consist of Fixed Rate Competitive Advances,
notify the Borrower by telephone not later than 10:00 a.m. (New York
City time) on the day of such proposed Competitive Borrowing of the
Competitive Bids made, the Competitive Bid Rate, the principal amount of
each Competitive Bid and the identity of the Lender that made each
Competitive Bid.
(iv) The Borrower may, in its sole and absolute discretion, subject
only to the provisions of this subsection (iv), accept or reject any
Competitive Bid. The Borrower shall notify the Administrative Agent by
telephone whether and to what extent it has decided to accept or reject
any or all of the Competitive Bids (specifying each Lender selected by
it to make Competitive Advances, the principal amount of such Advances
and the Competitive Bid Rate) (A) in the case of a Borrowing to consist
of Eurodollar Competitive Advances, by not later than 10:15 a.m. (New
York City time) three Business Days before a proposed Competitive
Borrowing (promptly confirmed by a Competitive Bid Letter, hand
delivered, telexed or telecopied by the Borrower to the Administrative
Agent), and (B) in the case of a Borrowing to consist of Fixed Rate
Competitive Advances, not later than 10:15 a.m. (New York City time) on
the day of a proposed Competitive Borrowing (confirmed in writing
substantially in the form of Exhibit 3.03A-2, hand delivered, telexed or
telecopied to the Administrative Agent not later than 5:00 p.m. (New
York City time) on the day of the proposed Competitive Borrowing);
provided, however, that 1) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
subsection (iii) above, (2) the Borrower shall not accept a bid made at
a particular Competitive Bid Rate if the Borrower has decided to reject
a bid made at a lower Competitive Bid Rate, (3) the aggregate amount of
the Competitive Bids accepted by the Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (4) if the
Borrower shall determine to accept Competitive Bids made at a particular
Competitive Bid Rate but the aggregate amount of all Competitive Bids
made at such Competitive Bid Rate, when added to the aggregate amount of
all Competitive Bids at lower Competitive Bid Rates, would cause the
total amount of Competitive Bids to be accepted by the Borrower to
exceed the principal amount specified in the Competitive Bid Request,
then the Borrower shall accept all such Competitive Bids at such
Competitive Bid Rate in an aggregate amount reduced to eliminate such
excess, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made ratably in accordance with the
amount of each such Competitive Bid (subject to clause (5) below), and
(5) no Competitive Bid shall be accepted for a Competitive Advance
unless such Competitive Advance is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000 in excess thereof;
provided further, however, that if a Competitive Advance must be in an
amount of less than $5,000,000 because of the provisions of (4) above,
such Competitive Advance may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid
Rate pursuant to (4) above, the amounts shall be rounded to integral
multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. Notice given by the Borrower pursuant to this
subsection (iv) shall be irrevocable.
(v) The Administrative Agent shall notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what
principal amount and at what Competitive Bid Rate) (A) in the case of a
proposed Borrowing to consist of Eurodollar Competitive Advances,
promptly by telex or telecopier and (B) in the case of a proposed
Borrowing to consist of Fixed Rate Competitive Advances, by telephone
(such information to be confirmed in writing by the Administrative Agent
to the Lenders not later than 12:00 noon (New York City time) on such
day), not later than 10:30 a.m. (New York City time) on the day of the
Competitive Borrowing and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Advance in respect of which its bid has been accepted. The
Administrative Agent shall not be required to disclose to any Lender any
other information with respect to the Competitive Bids submitted, but
the Administrative Agent may, at the request of any Lender, and at the
instruction of the Borrower, provide to such Lender certain information
with respect to Competitive Bids made and accepted as deemed appropriate
by the Borrower.
(vi) Neither the Administrative Agent nor any Lender shall be
responsible to the Borrower for (A) a failure to fund a Competitive
Advance on the date such Advance is requested by the Borrower or (B) the
funding of such Advance at a Competitive Bid Rate or in an amount other
than that confirmed pursuant to subsections (iv) and (v) above due in
each case to delays in communications, miscommunications (including,
without limitation, any variance between telephonic bids or acceptances
and the written notice provided by the Administrative Agent to the
Lenders pursuant to Sections (v) above or the written confirmation
supplied by the Borrower pursuant to subsection (iv) above) and the like
among the Borrower, the Administrative Agent and the Lenders, and the
Borrower agrees to indemnify each Lender for all reasonable costs and
expenses incurred by it in accordance with the terms of Section 4.03(e)
hereof, as a result of any such delay, miscommunication or the like that
results in a failure to fund a Competitive Advance or the funding of a
Competitive Advance at a Competitive Bid Rate or in an amount other than
that set forth in the written notice provided by the Administrative
Agent to the Lenders pursuant to subsection (v) above or the written
confirmation supplied by the Borrower pursuant to subsection (iv) above.
(vii) If the Administrative Agent has elected to submit a
Competitive Bid in its capacity as Lender, such bid must be submitted
directly to the Borrower one quarter of an hour earlier than the latest
time at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to subsection (ii) above.
(viii) A Competitive Bid Request for Eurodollar Competitive
Advances shall not be made within five Business Days after the date of
any previous Competitive Bid Request for Eurodollar Competitive
Advances.
(ix) All notices required by this Section 3.03 must be made in
accordance with Section 10.02.
(x) To facilitate the administration of this Agreement and the
processing of Competitive Bids, each Lender has submitted, or will
submit upon becoming a Lender pursuant to Section 10.07 hereof, to the
Administrative Agent a completed administrative questionnaire in the
form specified by the Administrative Agent, and each Lender agrees to
promptly notify the Administrative Agent in writing of any change in the
information so provided.
SECTION 3.04 Making of Advances. (a) Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent
at the Administrative Agent's address referred to in Section 10.02, in same
day funds, such Lender's portion of such Borrowing. Contract Advances shall
be made by the Lenders pro rata and Competitive Advances shall be made by the
Lender or Lenders whose Competitive Bids therefor have been accepted pursuant
to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article V, the Administrative Agent will make such
funds available to the Borrower at the Administrative Agent's aforesaid
address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.04, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
any such Lender (a "non-performing Lender") shall not have so made such
ratable portion available to the Administrative Agent, the non-performing
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. Nothing herein shall in any way limit, waive or
otherwise reduce any claims that any party hereto may have against any non-
performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.05 Repayment of Advances. The Borrower shall repay the
principal amount of each Advance on the last day of the Interest Period for
such Advance, which last day shall be the maturity date for such Advance.
SECTION 3.06 Interest. (a) Interest Periods. The period commencing
on the date of each Advance and ending on the last day of the period selected
by the Borrower with respect to such Advance pursuant to the provisions of
this Section 3.06 is referred to herein as an Interest Period (the "Interest
Period"). The duration of each Interest Period shall be (i) in the case of
any Eurodollar Rate Advance or Eurodollar Competitive Advance, 1, 2, 3 or 6
months, a. in the case of any Base Rate Advance, 90 days following the date
on which such Advance was made and (ii) in the case of any Fixed Rate
Competitive Advance, any number of days, but no more than 270 days; provided,
however, that no Interest Period may be selected by the Borrower if such
Interest Period would end after the Termination Date.
(b) Interest Rates. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances and Eurodollar Competitive Advances.
If such Advance is a Eurodollar Rate Advance or Eurodollar Competitive
Advance, interest thereon shall be payable on the last day of the
Interest Period therefor and, if any such Interest Period has a duration
of more than three months, also on the day of the third month during
such Interest Period which corresponds to the first day of such Interest
Period (or, if any such month does not have a corresponding day, then on
the last day of such third month); provided that any amount of principal
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to (A) for the remaining term, if any, of the
Interest Period for such Advance, 2% per annum above the Applicable Rate
for such Advance for such Interest Period, and (B) thereafter, 2% per
annum above the Applicable Rate in effect from time to time for Base
Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly on the last day of each
March, June, September and December and on the date such Base Rate
Advance shall be paid in full; provided that any amount of principal
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to 2% per annum above the Applicable Rate in
effect from time to time for Base Rate Advances.
(iii) Fixed Rate Competitive Advances. If such Advance is a
Fixed Rate Competitive Advance, interest thereon shall be payable on the
last day of the Interest Period therefor and, if any Interest Period has
a duration of more than 90 days, on each day which occurs during such
Interest Period every 90 days from the first day of such Interest
Period, provided that any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times
to (A) for the remaining, if any, of the original stated maturity of
such Advance, 2% per annum above the rate of interest applicable to such
Advance immediately prior to the date on which such amount became due,
and (B) thereafter, 2% per annum above the sum of the Alternate Base
Rate in effect from time to time plus the Applicable Rate in effect from
time to time for Base Rate Advances.
(c) Other Amounts. Any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all
times to 2% per annum above the Applicable Rate in effect from time to time
for Base Rate Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance. Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish such timely
information, the Administrative Agent shall determine such interest rate on
the basis of the timely information furnished by the other two Reference
Banks.
SECTION 3.07 Existing Revolving Credit Agreement. Upon the
satisfaction of the conditions set forth in Section 5.01, this Agreement
shall supersede the Existing Revolving Credit Agreement and all Commitments
of any Lender (as each term is defined in the Existing Revolving Credit
Agreement) party to the Existing Revolving Credit Agreement and not a party
to this Agreement shall be, without further act, irrevocably terminated.
ARTICLE IV
PAYMENTS
SECTION 4.01 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the other Loan Documents not later than
12:00 noon (New York City time) on the day when due in U.S. Dollars to the
Administrative Agent at its address referred to in Section 10.02 in same day
funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest, fees
or other amounts payable to the Lenders, to the respective Lenders to whom
the same are payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to Section 10.07, from
and after the effective date specified in such Lender Assignment, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Lender Assignment shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent and each
Lender, if and to the extent payment owed to the Administrative Agent or such
Lender, as the case may be, is not made when due hereunder (or, in the case
of a Lender, under the Note held by such Lender), to charge from time to time
against any or all of the Borrower's accounts with the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Alternate Base Rate when
based on the Prime Rate and of fees payable pursuant to Section 2.02(a) shall
be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be. All computations of interest and other amounts
pursuant to Section 4.03 shall be made by the Lender claiming such interest
or other amount, on the basis of a year of 360 days. All other computations
of interest and fees hereunder (including computations of interest based on
the Eurodollar Rate and the Federal Funds Rate (including the Alternate Base
Rate if and so long as such Rate is based on the Federal Funds Rate) and any
interest rate applicable to a Competitive Advance) shall be made by the
Administrative Agent on the basis of a year of 360 days. In each such case,
such computation shall be made for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each such determination by the Administrative
Agent or a Lender shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under any other Loan Document
shall be stated to be due, or the last day of an Interest Period hereunder
shall be stated to occur, on a day other than a Business Day, such payment
shall be made and the last day of such Interest Period shall occur on the
next succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest and fees hereunder;
provided, however, that if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances or Eurodollar Competitive Advances
to be made, or the last day of an Interest Period for a Eurodollar Rate
Advance or a Eurodollar Competitive Advance to occur, in the next following
calendar month, such payment shall be made on the next preceding Business Day
and such reduction of time shall in such case be included in the computation
of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02 Prepayments. (a) The Borrower shall have no right to
prepay any principal amount of any Contract Advances except in accordance
with subsection (b) below. The Borrower shall have no right to prepay any
principal amount of any Competitive Advance.
(b) The Borrower may, upon at least one Business Days' notice to the
Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given, the Borrower shall, prepay
the outstanding principal amounts of Contract Advances comprising part of the
same Borrowing, in whole or ratably in part, together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided,
however, that each partial prepayment shall be in an aggregate principal
amount not less than $5,000,000.
SECTION 4.03 Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to any Lender of the principal of or interest on any Eurodollar Rate Advance
or Competitive Advance made by such Lender or any fees or other amounts
payable hereunder (other than changes in respect of taxes imposed on the
overall net income of such Lender or its Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or in which such
Applicable Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against commitments or
assets of, deposits with or for the account of, or credit extended by, such
Lender, or (iii) shall impose on such Lender or the London interbank market
any other condition affecting this Agreement or Eurodollar Rate Advances or
Competitive Advances made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender of agreeing to make,
making or maintaining any Advance or to reduce the amount of any sum received
or receivable by such Lender hereunder or under the Notes (whether of
principal, interest or otherwise), then the Borrower will pay to such Lender
upon demand such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any change after
the date hereof in any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any Applicable Lending Office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect (i) of reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, as a consequence of this
Agreement, the Commitment of such Lender hereunder or the Advances made by
such Lender pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining the amount
of capital required or expected to be maintained by such Lender or such
Lender's holding company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such Lender
pursuant hereto and other similar such commitments, agreements or assets,
then from time to time the Borrower shall pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each Lender upon
demand, so long as such Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender, from the date of such Advance until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate
for the Interest Period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest Period. Such
additional interest shall be determined by such Lender and notified to the
Borrower and the Administrative Agent.
(d) Breakage Indemnity. The Borrower shall indemnify each Lender
against any loss, cost or reasonable expense which such Lender may sustain or
incur as a consequence of (i) any failure by the Borrower to fulfill on the
date of any Borrowing hereunder of Eurodollar Rate Advances or Competitive
Advances the applicable conditions set forth in Article V, (ii) any failure
by the Borrower to borrow any Eurodollar Rate Advance or Competitive Advance
hereunder after irrevocable Notice of Borrowing has been given pursuant to
Section 3.01, (iii) any payment or prepayment of a Eurodollar Rate Advance or
Competitive Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Eurodollar Rate Advance or
Competitive Advance or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable notice of
prepayment or otherwise) or (v) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain any Advance or any part
thereof as a Eurodollar Rate Advance or Competitive Advance. Such loss, cost
or reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of obtaining the funds
for the Eurodollar Rate Advance or Competitive Advance being paid, prepaid or
not borrowed for the period from the date of such payment, prepayment or
failure to borrow to the last day of the Interest Period for such Advance
(or, in the case of a failure to borrow, the Interest Period for such Advance
which would have commenced on the date of such failure) over (B) the amount
of interest (as reasonably determined by such Lender) that would be realized
by such Lender in reemploying the funds so paid, prepaid or not borrowed for
such period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any Eurodollar Rate
Advance or Eurodollar Competitive Advance, each Lender shall have funded each
such Advance with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such Lender's
claim for compensation hereunder and the amount necessary to compensate such
Lender or its holding company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrower and the Administrative Agent
and shall be conclusive and binding for all purposes, absent manifest error.
The Borrower shall pay each Lender directly the amount shown as due on any
such certificate within 10 days after its receipt of the same. The failure
of any Lender to provide such notice or to make demand for payment under this
Section 4.03 shall not constitute a waiver of such Lender's rights hereunder;
provided that such Lender shall not be entitled to demand payment pursuant to
subsections (a) through (d) of this Section 4.03, in respect of any loss,
cost, expense, reduction or reserve, if such demand is made more than one
year following the later of such Lender's incurrence or sufferance thereof or
such Lender's actual knowledge of the event giving rise to such Lender's
rights pursuant to such subsections. Each Lender shall use reasonable
efforts to ensure the accuracy and validity of any claim made by it
hereunder, but the foregoing shall not obligate any Lender to assert any
possible invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Rate Advance or
Eurodollar Competitive Advance or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Rate Advance or Eurodollar
Competitive Advance, then, by written notice to the Borrower and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances and Eurodollar
Competitive Advances will not thereafter be made by such Lender
hereunder, whereupon the right of the Borrower to select Eurodollar Rate
Advances for any Borrowing and any Competitive Borrowing consisting of
Eurodollar Competitive Advances shall be forthwith suspended until such
Lender shall withdraw such notice as provided hereinbelow or shall cease
to be a Lender hereunder pursuant to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances and
Eurodollar Competitive Advances made by it be repaid as of the effective
date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify the other Lenders. Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Borrower and the
Administrative Agent withdrawing such prior notice (but the failure to do so
shall impose no liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and obligations
hereunder in accordance with Section 10.07(g)), the Administrative Agent
shall deliver notice thereof to the Borrower and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrower under this subsection (f), such Lender shall use reasonable efforts
to change the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender. Any notice to the
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance
and Eurodollar Competitive Advance on the last day of the Interest Period
currently applicable to such Eurodollar Rate Advance or Eurodollar
Competitive Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrower and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances or Eurodollar Competitive
Advances in connection with any proposed Borrowing or (ii) if the Majority
Lenders shall notify the Administrative Agent that the Eurodollar Rate will
not adequately reflect the cost to such Majority Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances or Eurodollar
Competitive Advances, the right of the Borrower to select or receive
Eurodollar Rate Advances or Eurodollar Competitive Advances for any Borrowing
shall be forthwith suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist, and until such notification from the Administrative Agent each
requested Borrowing of Eurodollar Rate Advances and each requested Borrowing
of Eurodollar Competitive Advances hereunder shall be deemed to be a request
for Base Rate Advances.
SECTION 4.04 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise, but excluding any proceeds received by assignments or
sales of participation in accordance with Section 10.07 hereof to a Person
that is not an Affiliate of the Borrower) on account of the Advances owing to
it (other than pursuant to Section 4.03 hereof) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such
participation in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation.
Notwithstanding the foregoing, if any Lender shall obtain any such excess
payment involuntarily, such Lender may, in lieu of purchasing participation
from the other Lenders in accordance with this Section 4.04, on the date of
receipt of such excess payment, return such excess payment to the
Administrative Agent for distribution in accordance with Section 4.01(a).
SECTION 4.05 Taxes. (a) All payments by the Borrower hereunder and
under the other Loan Documents shall be made in accordance with Section 4.01,
free and clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender
or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed
on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any other Loan
Document to any Lender or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.05) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Any Lender's claim for such indemnification shall be set forth in a
certificate of such Lender setting forth in reasonable detail the amount
necessary to indemnify such Lender pursuant to this subsection (c) and shall
be submitted to the Borrower and the Administrative Agent and shall be
conclusive and binding for all purposes, absent manifest error. The Borrower
shall pay each Lender directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any Taxes or Other
Taxes for which a Lender or the Administrative Agent has received payments
from the Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as the case
may be, shall promptly forward to the Borrower any such refunded amount. The
Borrower's, the Administrative Agent's and each Lender's obligations under
this Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent, at its address referred to in
Section 10.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Each Lender shall, on or prior to the date it becomes a Lender
hereunder, deliver to the Borrower and the Administrative Agent such
certificates, documents or other evidence, as required by the Internal
Revenue Code of 1986, as amended from time to time (the "Code"), or treasury
regulations issued pursuant thereto, including Internal Revenue Service
Form 4224 and any other certificate or statement of exemption required by
Treasury Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed by such
Lender establishing that it is b. not subject to withholding under the Code
or c. totally exempt from United States of America tax under a provision of
an applicable tax treaty. Each Lender shall promptly notify the Borrower and
the Administrative Agent of any change in its Applicable Lending Office and
shall deliver to the Borrower and the Administrative Agent together with such
notice such certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith efforts to
apprise the Borrower as promptly as practicable of any impending change in
its tax status that would give rise to any obligation by the Borrower to pay
any additional amounts pursuant to this Section 4.05. Unless the Borrower and
the Administrative Agent have received forms or other documents satisfactory
to them indicating that payments hereunder or under the Notes are not subject
to United States of America withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the Administrative
Agent shall withhold taxes from such payments at the applicable statutory
rate in the case of payments to or for any Lender organized under the laws of
a jurisdiction outside the United States of America. Each Lender represents
and warrants that each such form supplied by it to the Administrative Agent
and the Borrower pursuant to this Section 4.05, and not superseded by another
form supplied by it, is or will be, as the case may be, complete and
accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrower or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions Precedent to Effectiveness. The effectiveness
of this Agreement is subject to the fulfillment of the following conditions
precedent:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and
substance satisfactory to each Lender and in sufficient copies for each
Lender except for the Notes:
(i) This Agreement, duly executed by the Borrower.
(ii) The Notes made to the order of the respective Lenders, duly
executed by the Borrower.
(iii) The Collateral Agency Agreement, duly executed by the
Borrower and by Chemical as the Collateral Agent and Administrative
Agent.
(iv) The PSNH Mortgage Amendment, duly executed by the Borrower and
the Collateral Agent, together with:
(A) acknowledgment copy of Financing Statements (Form UCC-3)
dated on or before the Closing Date duly executed by Bankers Trust
Company and indicating the assignment effected by the PSNH Mortgage
Assignment, and
(B) oral confirmation from Sulloway & Hollis of each
completion of all recordings and filings of the Security Documents
and all other actions, as may be necessary or, in the opinion of
the Collateral Agent, desirable to perfect (or continue the
perfection of) the Liens created by the Security Documents.
(v) The PSNH Mortgage Assignment, duly executed by the Borrower,
Bankers Trust Company and the Collateral Agent.
(vi) A certificate of the Secretary or Assistant Secretary of the
Borrower certifying (A) that attached thereto are true and correct
copies of (1) the Articles of Incorporation of the Borrower, and all
amendments thereto, as in effect on such date, (2) the By-laws of the
Borrower, as in effect on such date and (3) resolutions of the Executive
Committee of the Board of Directors of the Borrower approving this
Agreement, the other Loan Documents and the other documents to be
delivered by the Borrower hereunder and thereunder, and of all documents
evidencing other necessary corporate action, if any, with respect to the
execution, delivery and performance by the Borrower of this Agreement
and the other Loan Documents, (B) that such resolutions have not been
modified, revoked or rescinded and are in full force and effect on such
date and (C) the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the other Loan Documents
and the other documents to be delivered hereunder and thereunder.
(vii) Financial projections (contained in the Information
Memorandum), on assumptions acceptable to the Banks, demonstrating
projected compliance with Section 7.01(j) hereof and the terms of this
Agreement and the Other Loan Documents.
(viii) An audited balance sheet of the Borrower as at
December 31, 1995 and the related statements of the Borrower's results
of operations, changes in retained earnings and cash flows as of and
for the year then ended, together with copies of all Current Reports on
Form 8-K, if any, filed by the Borrower with the Securities and Exchange
Commission since December 31, 1995.
(ix) A certificate of a duly authorized officer of the Borrower
certifying that attached thereto are true and correct copies of all
Governmental Approvals referred to in clause (i) of the definition of
"Governmental Approval" required to be obtained or made by the Borrower
in connection with the execution and delivery of this Agreement or any
Loan Document.
(x) A certificate of a duly authorized officer of the Borrower to
the effect that there is no pending or known threatened action or
proceeding (including, without limitation, any action or proceeding
relating to any environmental protection laws or regulations) affecting
the Borrower or its properties before any court, governmental agency or
arbitrator (A) which affects or purports to affect the legality,
validity or enforceability of the Loan Documents or any of them or
(B) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, prospects or
operations of the Borrower; except, for purposes of clause (B) only,
such as is described in the Disclosure Documents.
(xi) A certificate signed by the Treasurer or Assistant Treasurer
of the Borrower, certifying as to the absence of any material adverse
change in the financial condition, operations, properties or prospects
of the Borrower since December 31, 1995 except as disclosed in the
Disclosure Documents.
(xii) A certificate signed by the Chief Financial Officer,
Treasurer or Assistant Treasurer of NU, certifying as to the absence of
any material adverse change in the financial condition, operations,
properties or prospects of NU since December 31, 1995 except as
disclosed in the disclosure documents referred to in such certificate.
(xiii) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and warranties contained
in Section 6.01 are correct, in all material respects, on and as of the
Closing Date before and after giving effect to the Advances to be made
on such date and the application of the proceeds thereof, and (ii) no
event has occurred and is continuing which constitutes an Event of
Default or Unmatured Default, or would result from such initial Advances
or the application of the proceeds thereof and
(xiv) Favorable opinions of:
(A) Jeffrey C. Miller, Assistant General Counsel to NUSCO, in
substantially the form of Exhibit 5.01A and as to such other
matters as the Majority Lenders, through the Administrative Agent,
may reasonably request;
(B) Robert A. Bersak, Assistant General Counsel of the
Borrower, in substantially the form of Exhibit 5.01B and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(C) Sulloway & Hollis, special New Hampshire counsel to the
Borrower, in substantially the form of Exhibit 5.01C and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(D) Drummond Woodsum & MacMahon, special Maine counsel to the
Borrower, in substantially the form of Exhibit 5.01D and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(E) Zuccaro, Willis & Bent, special Vermont counsel to the
Borrower, in substantially the form of Exhibit 5.01E and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request; and
(F) King & Spalding, counsel to the Administrative Agent, in
substantially the form of Exhibit 5.01F, and as to such other
matters as the Majority Lenders, through the Administrative Agent,
may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.02
hereof or pursuant to the Fee Letter shall have been paid (to the extent
then due and payable).
(c) All principal of and interest arising under, and all other
amounts payable in connection with the Existing Revolving Credit
Agreement and the notes issued thereunder shall have been paid in full
(whether from the proceeds hereof or otherwise).
(d) The Administrative Agent shall have received such other
approvals, opinions and documents as the Majority Lenders, through the
Administrative Agent, may reasonably request as to the legality,
validity, binding effect or enforceability of the Loan Documents or the
financial condition, properties, operations or prospects of the
Borrower.
SECTION 5.02 Conditions Precedent to Certain Contract Advances and All
Competitive Advances. The obligation of any Lender to make any Contract
Advance to the Borrower (except as set forth in Section 5.03) including the
initial Advance to the Borrower, or to make any Competitive Advance shall be
subject to the conditions precedent that, on the date of such Contract
Advance or Competitive Advance and after giving effect thereto:
(a) the following statement shall be true (and each of the giving of
the applicable notice or request with respect to such Advance and the
performance of such Advance without prior correction by the Borrower shall
constitute a representation and warranty by the Borrower that on the date of
such Advance such statements are true):
(i) the representations and warranties contained in Section 6.01
of this Agreement and in Section 1.02 of the PSNH Mortgage are correct
on and as of the date of such Advance, before and after giving effect to
such Advance and to the application of the proceeds therefrom, as though
made on and as of such date,
(ii) no Event of Default or Unmatured Default has occurred and
is continuing, or would result from such Advance or from the application
of the proceeds thereof, and
(iii) the making of such Advance, when aggregated with all
other outstanding and requested Advances and all other short-term debt
of the Borrower would not cause the Borrower's Debt Limit then in effect
to be exceeded; and
(b) the Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender, through the
Administrative Agent, may reasonably request as to the legality, validity,
binding effect or enforceability of the Loan Document.
SECTION 5.03 Conditions Precedent to Other Contract Advances. The
obligation of the Bank to make any Contract Advance that would not cause the
aggregate outstanding amount of the Contract Advances made by such Lender
(outstanding immediately prior to and after the making of such Contract
Advance) to increase shall be subject to the conditions precedent that, on
the date of such Contract Advance and after giving effect thereto:
(a) the following statement shall be true (and each of the giving of
the applicable notice or request with respect to such Contract Advance and
the acceptance of such Contract Advance without prior correction by the
Borrower shall constitute a representation and warranty by the Borrower that
on the date of such Contract Advance such statements are true):
(i) the representations and warranties contained in Section 6.01
of this Agreement (other than those set forth in the last sentence of
Section 6.01(e) and Section 6.01(f)) and in Section 1.02(b) of the PSNH
Mortgage are correct on and as of the date of such Contract Advance,
before and after giving effect to such Contract Advance and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no Event of Default has occurred and is continuing, or would
result from such Advance or from the application of the proceeds
thereof, and
(iii) the making of such Advance, when aggregated with all
other outstanding and requested Advances and all other short-term debt
of the Borrower would not cause the Borrower's Debt Limit then in effect
to be exceeded; and
(b) the Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender, through the
Administrative Agent, may reasonably request as to the legality, validity,
binding effect or enforceability of the Loan Documents.
SECTION 5.04 Reliance on Certificates. The Lenders and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of the Borrower, NU and
the other parties to the Significant Contracts as to the names, incumbency,
authority and signatures of the respective persons named therein until such
time as the Administrative Agent may receive a replacement certificate, in
form acceptable to the Administrative Agent, from an officer of such Person
identified to the Administrative Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Person thereafter authorized to act on behalf
of such Person, and, in all cases, the Lenders and the Administrative Agent
may rely on the information set forth in any such certificate including,
without limitation, information relating to the Debt Limit.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized and validly existing
under the laws of the State of New Hampshire. The Borrower is duly qualified
to do business in, and is in good standing in, all other jurisdictions where
the nature of its business or the nature of property owned or used by it
makes such qualifications necessary.
(b) The execution, delivery and performance by the Borrower of the Rate
Agreement, each Loan Document and each Significant Contract to which it is a
party are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not and will not contravene (i) the
Borrower's charter or by-laws or (ii) any law or legal or contractual
restriction binding on or affecting the Borrower; and such execution,
delivery and performance do not or will not result in or require the creation
of any Lien (other than pursuant hereto or pursuant to the Security Documents
or the First Mortgage Indenture) upon or with respect to any of its
properties.
(c) All Governmental Approval referred to in clauses (i) and (ii) of
the definition of "Governmental Approvals" have been duly obtained or made,
and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired. The Borrower has obtained all Governmental
Approvals referred to in clause (iii) of the definition of "Governmental
Approvals", except those not yet required but which are obtainable in the
ordinary course of business as and when required and those the absence of
which would not materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(d) This Agreement, the Rate Agreement, each other Loan Document and
each Significant Contract are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms; subject to the qualifications, however, that the enforcement of the
rights and remedies herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and remedies of
creditors, that the remedy of specific performance or of injunctive relief is
subject to the discretion of the court before which any proceedings therefor
may be brought, and that indemnification against violations of securities and
similar laws may be subject to matters of public policy.
(e) The audited balance sheet of the Borrower as at December 31, 1995,
and the related statements of the Borrower setting forth the results of
operations, retained earnings and cash flows of the Borrower for the fiscal
year then ended, copies of which have been furnished to each Bank, fairly
present in all material respects the financial condition, results of
operations, retained earnings and cash flows of the Borrower at and for the
year ended on such date, and have been prepared in accordance with generally
accepted accounting principles consistently applied. Except as reflected in
such financial statements, the Borrower has no material non-contingent
liabilities, and all contingent liabilities have been appropriately reserved.
The financial projections referred to in Section 5.01(a)(iv), have each been
prepared in good faith and on reasonable assumptions. Since December 31,
1995, there has been no material adverse change in the Borrower's financial
condition, operations, properties or prospects other than as disclosed in the
Disclosure Documents.
(f) Except as set forth in the Disclosure Documents, there is no
pending or known threatened action or proceeding (including, without
limitation, any action or proceeding relating to any environmental protection
laws or regulations) affecting the Borrower or its properties before any
court, governmental agency or arbitrator, (i) which affects or purports to
affect the legality, validity or enforceability of the Loan Documents, the
Rate Agreement or any Significant Contract or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(g) All insurance required by Section 7.01(c) hereof will be in full
force and effect.
(h) No ERISA Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any ERISA Plan which would materially
adversely affect the financial condition, properties, prospects or operations
of the Borrower, except as disclosed to and consented by the Majority Lenders
in writing. Since the date of the most recent Schedule B (Actuarial
Information) to the annual report of the Borrower (Form 5500 Series), if any,
there has been no material adverse change in the funding status of the ERISA
Plans referred to therein and no "prohibited transaction" has occurred with
respect thereto, except as described in the Borrower's Annual Report on Form
10-K for the year ended December 31, 1995 and except as the same may be
exempt pursuant to Section 408 of ERISA and regulations and orders
thereunder. Neither the Borrower nor any of its ERISA Affiliates has
incurred nor reasonably expects to incur any material withdrawal liability
under ERISA to any ERISA Multiemployer Plan, except as disclosed to and
consented by the Majority Lenders in writing.
(i) The Major Electric Generating Plants are on land in which the
Borrower owns a full or an undivided fee interest subject only to Liens
permitted by Section 7.02(a) hereof, which do not materially impair the
usefulness to the Borrower of such properties; the electric transmission and
distribution lines of the Borrower in the main are located in New Hampshire
and on land owned in fee by the Borrower or over which the Borrower has
easements, or are in or over public highways or public waters pursuant to
adequate statutory or regulatory authority, and any defects in the title to
such transmission and distribution lands or easements are in the main curable
by the exercise of the Borrower's right of eminent domain upon a finding that
such eminent domain proceedings are necessary to meet the reasonable
requirements of service to the public; the Borrower enjoys peaceful and
undisturbed possession under all of the leases under which it is operating,
none of which contains any unusual or burdensome provision which will
materially affect or impair the operation of the Borrower; and the Security
Documents create valid Liens in the Collateral, subject only to Liens
permitted by Section 7.02(a) hereof, and, all filings and other actions
necessary to perfect and protect such security interests (to the extent such
security interests may be perfected or protected by filing) have been taken.
(j) No material part of the properties, business or operations of the
Borrower are materially adversely affected by any fire, explosion, accident,
strike, lockout or other labor disputes, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (except for any
such circumstance, if any, which is covered by insurance which coverage has
been confirmed and not disputed by the relevant insurer or by fully-funded
self-insurance programs).
(k) The Borrower has filed all tax returns (Federal, state and local)
required to be filed and paid taxes shown thereon to be due, including
interest and penalties, or, to the extent the Borrower is contesting in good
faith an assertion of liability based on such returns, has provided adequate
reserves in accordance with generally accepted accounting principles for
payment thereof.
(l) No exhibit, schedule, report or other written information provided
by the Borrower or its agents to the Lenders in connection with the
negotiation, execution and closing of this Agreement (including, without
limitation, the Information Memorandum) knowingly contained when made any
material misstatement of fact or knowingly omitted to state any material fact
necessary to make the statements contained therein not misleading in light of
the circumstances under which they were made.
(m) No event has occurred and is continuing which constitutes a
material default under the Rate Agreement or any Significant Contract.
(n) All proceeds of the Advances shall be used for general working
capital and for the payment in full of all amounts outstanding under the
Existing Revolving Credit Agreement. No proceeds of any Advance will be used
(i) to acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934 or (ii) to buy or carry any
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) or to extend credit to others for
such purpose. The Borrower (i) is not an "investment company" within the
meaning ascribed to that term in the Investment Company Act of 1940 and
(ii) is not engaged in the business of extending credit for the purpose of
buying or carrying margin stock.
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01 Affirmative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Majority Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance solely as
specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the same shall
become delinquent, all taxes, assessments and governmental charges, royalties
or levies imposed upon it or upon its property except to the extent the
Borrower is contesting the same in good faith by appropriate proceedings and
has set aside adequate reserves for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance (including appropriate plans of self-insurance) covering the
Borrower and its properties in effect at all times in such amounts and
covering such risks as may be required by law and in addition as is usually
carried by companies engaged in similar businesses and owning similar
properties.
(d) Preservation of Existence, Etc. Preserve and maintain its
corporate existence, material rights (statutory and otherwise) and franchises
except as otherwise expressly provided for in the Security Documents.
(e) Compliance with Laws, Etc. Comply in all material respects with
the requirements of all applicable laws, rules, regulations and orders of any
governmental authority, including without limitation any such laws, rules,
regulations and orders relating to utilities, zoning, environmental
protection, use and disposal of Hazardous Substances, land use, construction
and building restrictions, and employee safety and health matters relating to
business operations, except to the extent (i) that the Borrower is contesting
the same in good faith by appropriate proceedings or (ii) that any such non-
compliance, and the enforcement or correction thereof, would not materially
adversely affect the financial condition, properties, prospects or operations
of the Borrower as a whole.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents and
representatives to examine and make copies of and abstracts from the records
and books of account of, and the properties of, the Borrower and to discuss
the affairs, finances and accounts of the Borrower with the Borrower and of
its officers, directors and accountants.
(g) Keeping of Books. Keep proper records and books of account, in
which full and correct entries shall be made of all financial transactions of
the Borrower and the assets and business of the Borrower, in accordance with
good accounting practices consistently applied.
(h) Performance of Related Agreements. From and after the effective
date of the Rate Agreement and each Significant Contract, (i) perform and
observe all material terms and provisions of such agreements to be performed
or observed by the Borrower and (ii) take all reasonable steps to enforce
such agreements substantially in accordance with their terms and to preserve
the rights of the Borrower thereunder; provided, that the foregoing
provisions of this Section 7.01(h) shall not preclude the Borrower from any
waiver, amendment, modification, consent or termination permitted under
Section 7.02(g) hereof.
(i) Collection of Accounts Receivable. Promptly bill, and diligently
pursue collection of, in accordance with customary utility practices, all
accounts receivable owing to the Borrower and all other amounts that may from
time to time be owing to the Borrower for services rendered or goods sold.
(j) Maintenance of Financial Covenants.
(i) Operating Income to Interest Expense. Maintain a ratio of
Operating Income to Interest Expense of not less than (A) 1.75 to 1.00
for each period of four consecutive fiscal quarters on each quarter-end
ending on or prior to June 30, 1997 and (B) 2.00 to 1.00 for each period
of four consecutive fiscal quarters on each quarter-end ending after
such date.
(ii) Common Equity to Total Capitalization. Maintain at all times
a ratio of Common Equity to Total Capitalization of not less than (A)
0.285 to 1.00 during each fiscal quarter ending on or prior to June 30,
1997 and (B) 0.30 to 1.00 during each fiscal quarter ending after such
date.
(k) Maintenance of Properties, Etc. (i) As to properties of the type
described in Section 6.01(i) hereof, maintain title of the quality described
therein; and (ii) preserve, maintain, develop, and operate in substantial
conformity with all laws, material contractual obligations and prudent
practices prevailing in the industry, all of its properties which are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent such non-conformity
would not materially adversely affect the financial condition, properties,
prospects or operations of the Borrower as a whole.
(l) Governmental Approvals. Duly obtain on or prior to such date as
the same may become legally required, and thereafter maintain in effect at
all times, all Governmental Approvals on its part to be obtained, except
those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of the Borrower as a
whole.
(m) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or that any Lender through the Administrative Agent may reasonably request in
order to fully give effect to the interests and properties purported to be
covered by the Security Documents.
SECTION 7.02 Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall
not, without the prior written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist any lien,
security interest, or other charge or encumbrance (including the lien or
retained security title of a conditional vendor) of any kind, or any other
type of preferential arrangement the intent or effect of which is to assure a
creditor against loss or to prefer one creditor over another creditor upon or
with respect to any of its properties of any character (any of the foregoing
being referred to herein as a "Lien") whether now owned or hereafter
acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction a financing statement which names the Borrower as debtor, sign
any security agreement authorizing any secured party thereunder to file such
financing statement, or assign accounts, excluding, however, from the
operation of the foregoing restrictions the Liens created or perfected under
the Loan Documents and the following, whether now existing or hereafter
created or perfected:
(i) Liens on property specifically reserved, excepted and excluded
by subparagraphs (c) through (g) and subparagraph (j) following the
Granting Clauses section of the First Mortgage Indenture;
(ii) Permitted Encumbrances (as defined in the PSNH Mortgage) on
the Indenture Assets (except Liens referred to in paragraphs (s) and (t)
of Schedule C to the PSNH Mortgage hereafter directly created by the
Borrower, provided, however, that the Borrower may create any such Lien
with the prior consent of the Majority Lenders if such Lien would not
materially adversely affect the security granted under the PSNH
Mortgage, as determined by the Majority Lenders in their reasonable
discretion), provided that in no event shall the outstanding principal
amount of the First Mortgage Bonds exceed at any time the First Mortgage
Bond Amount;
(iii) Liens referred to in paragraphs (b) through (t) of
Schedule C to the PSNH Mortgage on realty or personalty that is subject
to the Lien of the First Mortgage Indenture but is not also subject to
the Lien of the PSNH Mortgage; provided, however, that the aggregate
principal amount of the Debt at any one time outstanding secured by
purchase money Liens permitted by paragraph (m) of Schedule C to the
PSNH Mortgage including Liens of a conditional vendor that are the
functional equivalent of purchase money Liens, shall not exceed
$20,000,000; and
(iv) Liens created or perfected under or in connection with
(A) the Other Loan Documents and (B) the Pledge Agreements referred to
in the Series D Reimbursement Agreement and the Series E Reimbursement
Agreement.
(b) Debt. Create, incur or assume any Debt unless, after giving effect
thereto, (i) no Event of Default or Unmatured Default shall have occurred and
be continuing on the date of such creation, incurrence or assumption
(determined in the case of Section 7.01(j)(i) as though such Debt were
created, incurred or assumed as of the first day of the immediately preceding
fiscal quarter and using the Borrower's most recent annual actuarial
determinations in the computation of Debt referred to in clause (ix) of the
definition of "Debt") and (ii) the Borrower shall have determined that, on
the basis of the assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant to
Section 7.03(iv) hereof (which the Borrower continues to believe to be
reasonable), the Borrower will continue to be in compliance at all times with
the provisions of Section 7.01(j) hereof. The Borrower will furnish evidence
of its compliance with this subsection (b) for each fiscal quarter pursuant
to Section 7.03(ii) hereof.
(c) Mergers, Etc. Merge with or into or consolidate with or into, or
acquire all or substantially all of the assets of, any Person.
(d) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of all or any substantial part of its assets (other than sales, transfers or
other dispositions of receivables) whether in a single transaction or series
of transactions during any consecutive 12-month period except for sales,
leases, transfers or other dispositions in the ordinary course of the
Borrower's business in accordance with ordinary and customary terms and
conditions.
For purposes of this subsection (d) any transaction or series of
transactions during any consecutive 12-month period shall be deemed to
involve a "substantial part" of the Borrower's assets if, in the aggregate,
(A) the value of such assets equals or exceeds 10% of the total assets of the
Borrower reflected in the financial statements of the Borrower delivered
pursuant to Section 7.03(ii) or 7.03(iii) hereof in respect of the fiscal
quarter or year ending on or immediately prior to the commencement of such
12-month period or (B) for the four calendar quarters ending on or
immediately prior to commencement of such 12-month period, the gross revenue
derived by the Borrower from such assets shall equal or exceed 10% of the
total gross revenue of the Borrower.
(e) Restricted Payments. Declare or pay any dividend, or make any
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any share of any class of capital
stock of the Borrower (other than stock splits and dividends payable solely
in equity securities of the Borrower), or purchase, redeem, retire, or
otherwise acquire for value any shares of any class of capital stock of the
Borrower or any warrants, rights, or options to acquire any such Debt or
shares, now or hereafter outstanding, or make any distribution of assets to
any of its shareholders (any such transaction being a "Restricted Payment")
except for Restricted Payments made in compliance with the following
conditions:
(i) The Borrower may not make any Restricted Payments if an Event
of Default or Unmatured Default shall have occurred and be continuing.
(ii) The Borrower may not make any Restricted Payments during any
fiscal quarter if, after giving effect thereto (and to the other
computations set forth below in this clause (ii)), the Borrower would
not be in full compliance with Section 7.01(j) hereof. For purposes of
determining compliance with Section 7.01(j) under this clause (ii),
computations under Section 7.01(j) shall be made as of the date of such
Restricted Payment, except that, retained earnings shall be determined
as of the last day of the immediately preceding fiscal quarter (adjusted
for all Restricted Payments made after the last day of such preceding
fiscal quarter).
(iii) The Borrower may not make any Restricted Payments unless,
after giving effect thereto, the Borrower shall have determined that, on
the basis of the assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant to Section
7.03(iv) hereof (which the Borrower continues to believe to be
reasonable) the Borrower will continue to be in compliance at all times
with the provisions of Section 7.01(j) hereof.
(f) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate to terminate, any ERISA Plan so as to result in any material (in
the opinion of the Majority Lenders) liability of the Borrower to the PBGC,
or (ii) permit to exist any occurrence of any Reportable Event (as defined in
Title IV of ERISA), or any other event or condition, which presents a
material (in the opinion of the Majority Lenders) risk of such a termination
by the PBGC of any ERISA Plan and such a material liability to the Borrower.
(g) Related Agreements.
(i) Amendments. Amend, modify or supplement or give any consent,
acceptance or approval to any amendment, modification or supplement or
deviation by any party from the terms of, the Rate Agreement or any
Significant Contract, except, with respect only to the Significant
Contracts, any amendment, modification or supplement thereto that would
not reduce the rights or entitlements of the Borrower thereunder in any
material way.
(ii) Termination. Cancel or terminate (or consent to any
cancellation or termination of) the Rate Agreement or any Significant
Contract prior to the expiration of its stated term, provided that this
subsection (ii) shall not restrict the rights of the Borrower to enforce
any remedy against any obligor under any Significant Contract in the
event of a material breach or default by such obligor thereunder if and
so long as the Borrower shall have provided to the Administrative Agent
at least 30 days prior written notice of the enforcement action proposed
to be undertaken by the Borrower.
(h) Change in Nature of Business. Engage in any material business
activity other than those established and engaged in on the date hereof.
(i) Ownership in Seabrook and Nuclear Plants. Acquire, directly or
indirectly, any ownership interest or any additional ownership interest of
any kind in any nuclear-powered electric generating plant.
(j) Subsidiaries. Create or suffer to exist any active subsidiaries
other than Properties, Inc., a New Hampshire corporation; or permit any
material assets or business to be maintained at or conducted by any
subsidiary except for the assets owned by Properties, Inc. not exceeding
$20,000,000.
(k) Debt Limit. At any time, cause or permit the Debt Limit to be
exceeded, by voluntary incurrence of short-term debt or by other means.
SECTION 7.03 Reporting Obligations. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Majority Lenders shall otherwise consent in writing, furnish to
the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within five (5) days
after the occurrence of each Event of Default or Unmatured Default
continuing on the date of such statement, a statement of the Chief
Financial Officer, Treasurer or Assistant Treasurer of the Borrower
setting forth details of such Event of Default or Unmatured Default
and the action which the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event within fifty (50)
days after the end of each of the first three quarters of each
fiscal year of the Borrower, (A) if and so long as the Borrower is
required to submit to the Securities and Exchange Commission a
report on Form 10-Q, a copy of the Borrower's report on Form 10-Q
submitted to the Securities and Exchange Commission with respect to
such quarter and (B) if the Borrower ceases to be required to
submit such report, a balance sheet of the Borrower as of the end
of such quarter and statements of income and retained earnings and
of cash flows of the Borrower for the period commencing at the end
of the previous fiscal year and ending with the end of such
quarter, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 6.01(e) hereof, in each
such case, delivered together with a certificate of said officer
(1) stating that no Event of Default or Unmatured Default has
occurred and is continuing or, if an Event of Default or Unmatured
Default has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower proposes to take
with respect thereto and (2) (y) demonstrating compliance with
Section 7.01(j) for and as of the end of such fiscal quarter and
compliance with Section 7.02(b), as of the dates on which any Debt
was created, incurred or assumed (using the Borrower's most recent
annual actuarial determinations in the computation of Debt referred
to in clause (ix) in the definition of "Debt"), and (z)
demonstrating, after giving effect to the incurrence of any Debt
created, incurred or assumed during such fiscal quarter (using the
Borrower's most recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the definition of
"Debt"), compliance with Section 7.01(j) for the remainder of the
fiscal year of the Borrower based on the operating budget/forecast
of operations delivered pursuant to Section 7.03(iv) hereof for
such fiscal year, in each case, such demonstration to be in a
schedule (in form satisfactory to the Majority Lenders) which sets
forth the computations used by the Borrower in determining such
compliance;
(iii) as soon as available and in any event within 105
days after the end of each fiscal year of the Borrower, (A) if and
so long as the Borrower is required to submit to the Securities and
Exchange Commission a report on Form 10-K, a copy of the Borrower's
report on Form 10-K submitted to the Securities and Exchange
Commission with respect to such year and (B) if the Borrower ceases
to be required to submit such report, a copy of the annual audit
report for such year for the Borrower including therein a balance
sheet of the Borrower as of the end of such fiscal year and
statements of income and retained earnings and of cash flows of the
Borrower for such fiscal year, in each case certified by a
nationally-recognized independent public accountant, in each such
case delivered together with a certificate of the Chief Financial
Officer, Treasurer or Assistant Treasurer (A) (1) stating that the
financial statements were prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of financial statements referred to in Section 6.01(e)
hereto, and (2) no Event of Default or Unmatured Default has
occurred and is continuing, or if an Event of Default or Unmatured
Default has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower proposes to take
with respect thereto and (B) demonstrating compliance with Section
7.01(j) for and as of the end of such fiscal year and compliance
with Section 7.02(b), as of the dates on which any Debt was
created, incurred or assumed (using the Borrower's most recent
annual actuarial determinations in the computation of Debt referred
to in clause (ix) in the definition of "Debt"), such demonstration
to be in a schedule (in form satisfactory to the Majority Lenders)
which sets forth the computations used by the Borrower in
determining such compliance.
(iv) as soon as available and in any event before March 31 of
each fiscal year a copy of an operating budget/forecast of
operations of the Borrower as approved by the Board of Directors of
the Borrower in form satisfactory to the Lenders for the next
fiscal year of the Borrower, together with a certificate of the
Chief Financial Officer, Treasurer or Assistant Treasurer of the
Borrower stating that such budget/forecast was prepared in good
faith and on reasonable assumptions;
(v) as soon as available and in any event no later than the
New Hampshire Public Utilities Commission shall have received the
Borrower's annual submission, if any, relating to the "return on
equity collar" referred to in the Rate Agreement, a copy of such
annual submission of the Borrower;
(vi) as soon as possible and in any event (A) within 30 days
after the Borrower knows or has reason to know that any ERISA Plan
Termination Event described in clause (i) of the definition of
ERISA Plan Termination Event with respect to any ERISA Plan or
ERISA Multiemployer Plan has occurred and (B) within 10 days after
the Borrower knows or has reason to know that any other ERISA Plan
Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the Borrower
describing such ERISA Plan Termination Event and the action, if
any, which the Borrower proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from the PBGC, copies of each notice
received by the Borrower or any such ERISA Affiliate of the PBGC's
intention to terminate any ERISA Plan or ERISA Multiemployer Plan
or to have a trustee appointed to administer any ERISA Plan or
ERISA Multiemployer Plan;
(viii) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each ERISA Plan (if any) to which the
Borrower is a contributing employer;
(ix) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from an ERISA Multiemployer Plan
sponsor, a copy of each notice received by the Borrower or any of
its ERISA Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount of at least
$10,000,000 pursuant to Section 4202 of ERISA in respect of which
the Borrower may be liable;
(x) promptly after the Borrower becomes aware of the
occurrence thereof, notice of all actions, suits, proceedings or
other events (A) of the type described in Section 6.01(f), or
(B) which purport to affect the legality, validity or
enforceability of any of the Loan Documents or Significant
Contracts;
(xi) promptly after the sending or filing thereof, copies of
all such proxy statements, financial statements, and reports which
the Borrower sends to its public security holders (if any) or files
with, and copies of all regular, periodic and special reports and
all registration statements and periodic or special reports, if
any, which the Borrower files with, the Securities and Exchange
Commission or any governmental authority which may be substituted
therefor, or with any national securities exchange;
(xii) promptly after receipt thereof, any assertion of the
character described in Section 8.01(h) hereof and the action the
Borrower proposes to take with respect thereto;
(xiii) promptly after knowledge of any material default
under the Rate Agreement or any Significant Contract, notice of
such default and the action the Borrower proposes to take with
respect thereto;
(xiv) promptly after knowledge of any amendment,
modification, or other change to the Rate Agreement or any
Significant Contract or to any Governmental Approval affecting the
Rate Agreement, notice of such amendment, modification or other
change, it being understood that for purposes of this clause (xiv)
any filing by the Borrower in the ordinary course of the Borrower's
business with, or order issued or action taken by, a governmental
authority or regulatory body to implement the terms of the Rate
Agreement shall not be considered an amendment, modification or
change to a Governmental Approval affecting the Rate Agreement; and
(xv) promptly after requested, such other information
respecting the financial condition, operations, properties,
prospects or otherwise, of the Borrower as the Administrative Agent
or Majority Lenders may from time to time reasonably request in
writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01 Events of Default. The following events shall each
constitute an "Event of Default" if the same shall occur and be continuing
after the grace period and notice requirement (if any) applicable thereto:
(a) The Borrower shall fail to pay any principal of any Note when due
or shall fail to pay any interest on any Note, fees or other amounts within
two days after the same becomes due; or
(b) Any representation or warranty made by the Borrower (or any of its
officers or agents) in this Agreement, any other Loan Document, certificate
or other writing delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any term or covenant
on its part to be performed or observed contained in Sections 7.01(a), (d) or
(j), Section 7.02 or Section 7.03(i) hereof; or
(d) The Borrower shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in this Agreement
or any Loan Document and any such failure shall remain unremedied, after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender, for a period of 30 days; or
(e) The Borrower shall fail to pay any of its Debt when due (including
any interest or premium thereon but excluding Debt evidenced by the Notes and
excluding other Debt aggregating in no event more than $10,000,000 in
principal amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in any
agreement or instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or as a
result of the Borrower's exercise of a prepayment option) prior to the stated
maturity thereof; unless in each such case the obligee under or holder of
such Debt or the trustee with respect to such Debt shall have waived in
writing such circumstance without consideration having been paid by the
Borrower so that such circumstance is no longer continuing; or
(f) The Borrower shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make an assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of its debts
under any law relating to bankruptcy, insolvency, or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of a proceeding instituted against the
Borrower, either the Borrower shall consent thereto or such proceeding shall
remain undismissed or unstayed for a period of 90 days or any of the actions
sought in such proceeding (including without limitation the entry of an order
for relief against the Borrower or the appointment of a receiver, trustee,
custodian or other similar official for the Borrower or any of its property)
shall occur; or the Borrower shall take any corporate or other action to
authorize any of the actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or its properties and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and shall not have been stayed or (ii) there
shall be any period of 15 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(h) Any material provision of any Loan Document, the Rate Agreement or
any Significant Contract shall for any reason other than the express terms
thereof or the exercise of any right or option expressly contained therein
cease to be valid and binding on any party thereto except as otherwise
expressly permitted by the exceptions and provisos contained in
Section 7.02(g) hereof; or any party thereto other than the Lenders shall so
assert in writing provided that in the case of any party other than the
Borrower making such assertion in respect of the Rate Agreement or any
Significant Contract, such assertion shall not in and of itself constitute an
Event of Default hereunder until d. such asserting party shall cease to
perform under and in compliance with the Rate Agreement or such Significant
Contract, e. the Borrower shall fail to diligently prosecute, by appropriate
action or proceedings, a rescission of such assertion or a binding
determination as to the merits thereof or f. such a binding determination
shall have been made in favor of such asserting party's position; or
(i) The Security Documents after delivery under Article V hereof shall
for any reason, except to the extent permitted by the terms thereof, fail or
cease to create valid and perfected Liens (to the extent purported to be
granted by such documents and subject to the exceptions permitted thereunder)
in any of the Collateral, provided, that such failure or cessation relating
to any non-material portion of such Collateral shall not constitute an Event
of Default hereunder unless the same shall not have been corrected within 30
days after the Borrower becomes aware thereof; or
(j) The Borrower shall not have in full force and effect any or all
insurance required under Section 7.01(c) hereof or there shall be incurred
any uninsured damage, loss or destruction of or to the Borrower's properties
in an amount not covered by insurance (including fully-funded self-insurance
programs) which the Majority Lenders consider to be material; or
(k) Any "Event of Default" (as therein defined) shall occur and be
continuing under the Other Loan Documents, or a default by the Borrower shall
have occurred under the Rate Agreement and shall not have been effectively
cured within the time period specified therein for such cure (or, if no such
time period is specified therein, 10 days); or a default by any party shall
have occurred under any Significant Contract and such default shall not have
been effectively cured within 30 days after notice from the Administrative
Agent to the Borrower stating that, in the opinion of the Majority Lenders,
such default may have a material adverse effect upon the financial condition,
operations, properties or prospects of the Borrower as a whole; or
(l) Any Governmental Approval (whether federal, state or local)
required to give effect to the Rate Agreement (including, without limitation,
Chapter 362-C of the New Hampshire Revised Statutes and the enabling order of
The New Hampshire Public Utilities Commission issued pursuant thereto) shall
be amended, modified or supplemented, or any other regulatory or legislative
action or change (whether federal, state or local) having the effect,
directly or indirectly, of modifying the benefits or entitlements of the
Borrower under the Rate Agreement shall occur, and in any such case such
amendment, modification, supplement, action or change may have, in the
opinion of the Majority Lenders, a material adverse effect upon the financial
condition, operations, properties or prospects of the Borrower as a whole; or
(m) NU shall cease to own all of the outstanding common stock of the
Borrower, free and clear of any Liens.
SECTION 8.02 Remedies Upon Events of Default. Upon the occurrence and
during the continuance of any Event of Default, then, and in any such event,
the Administrative Agent shall at the request, or may with the consent, of
the Majority Lenders, upon notice to the Borrower (i) declare the Commitments
and the obligation of each Lender to make Advances to be terminated,
provided, that any such request or consent shall be made solely by the
Lenders having Percentages in the aggregate of not less 66-2/3%, whereupon
the same shall forthwith terminate, (ii) declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the Security
Documents to be forthwith due and payable, provided, that any such request or
consent shall be made solely by the Lenders holding at least 66-2/3% of the
then aggregate unpaid principal amount of the Advances owing to the Lenders,
whereupon the Notes, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower,
and (iii) exercise in respect of any and all collateral, in addition to the
other rights and remedies provided for herein and in the Security Documents
or otherwise available to the Administrative Agent, the Collateral Agent or
the Lenders, all the rights and remedies of a secured party on default under
the Uniform Commercial Code in effect in the State of New York and in effect
in any other jurisdiction in which Collateral is located at that time;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code,
(A) the Commitments and the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided
for by any Loan Documents (including, without limitation, enforcement or
collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided, however, that
the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary
to this Agreement or applicable law. The Administrative Agent agrees to
deliver promptly to each Lender notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 9.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or wilful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by the Lender which is the payee of
such Note, as assignor, and an assignee, as provided in Section 10.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for the Information Memorandum or any other
statements, warranties or representations made in or in connection with any
Loan Document; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of the Borrower to be performed or observed, or
to inspect any property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document, Significant Contract or any other instrument or document furnished
pursuant hereto; and g. shall incur no liability under or in respect of any
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03 Chemical and Affiliates. With respect to its Commitment
and the Note issued to it, Chemical shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Chemical in its
individual capacity. Chemical and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its subsidiaries and any
Person who may do business with or own securities of the Borrower or any such
subsidiary, all as if Chemical was not the Administrative Agent and without
any duty to account therefor to the Lenders.
SECTION 9.04 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the Information Memorandum and other financial
information referred to in Section 6.01(e) and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement.
SECTION 9.05 Indemnification. The Lenders agree to indemnify CSI and
the Administrative Agent (to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the Notes then held
by each of them (or if no Notes are at the time outstanding, ratably
according to the respective Commitments of the Lenders or if any Notes or
Commitments are held by the Borrower or Affiliates thereof, any ratable
apportionment hereunder shall exclude the principal amount of the Notes held
by the Borrower or its Commitment hereunder), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against CSI or the
Administrative Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by CSI or the Administrative Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from CSI's or the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse CSI and the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by CSI or the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement to the extent that CSI or
the Administrative Agent are entitled to reimbursement for such expenses
pursuant to Section 10.04 but is not reimbursed for such expenses by the
Borrower.
SECTION 9.06 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and
the Borrower, with any such resignation to become effective only upon the
appointment of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent, which shall be a Lender or
another commercial bank or trust company reasonably acceptable to the
Borrower organized or licensed under the laws of the United States, or of any
State thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be Lender or
shall be another commercial bank or trust company organized or licensed under
the laws of the United States or of any State thereof reasonably acceptable
to the Borrower. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent and the execution and delivery by the Borrower and the
successor Administrative Agent of an agreement relating to the fees to be
paid to the successor Administrative Agent under Section 2.02(b) hereof in
connection with its acting as Administrative Agent hereunder, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement, any Note or any Security Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive, modify or eliminate any of the
conditions specified in Article V, (b) increase the Commitment of any Lender
hereunder or increase the Commitments of the Lenders that may be maintained
hereunder or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Notes, any Applicable Margin or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder (other than fees payable to the Administrative
Agent pursuant to Section 2.02(b) hereof), (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders which shall be required for the Lenders or any of them to
take any action hereunder, (f) amend this Agreement, any Note or any Security
Document in a manner intended to prefer one or more Lenders over any other
Lenders, (g) amend this Section 10.01, or (h) release all or substantially
all of the Collateral otherwise than in accordance with the provisions for
such release contained in the Security Documents, or change any provision of
any Security Document providing for the release of all or substantially all
of the Collateral; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights
or duties of the Administrative Agent under this Agreement or any Note.
SECTION 10.02 Notices, Etc. Except as otherwise provided in
Section 3.04 hereof, all notices and other communications provided for
hereunder and under the other Loan Documents shall be in writing (including
telegraphic, telex, telecopy or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered, (i) if to the Borrower, at its
address at 1000 Elm Street, Manchester, New Hampshire 03105 (telecopy no.
603.669.2438), Attention: Treasurer, with a copy to Northeast Utilities
Service Company at its address at 107 Selden Street, Berlin, Connecticut
06037 (telecopy no. 203.665.5457), Attention: Assistant Treasurer; (ii) if
to any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; (iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment pursuant to which it became
a Lender; and (iv) if to the Administrative Agent, at its address at 140 East
45th Street, New York, New York 10017, Attention: Janet Belden; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied or cabled, be effective
five days after when deposited in the mails, or when delivered to the
telegraph company, confirmed by telex answerback, telecopied or delivered to
the cable company, respectively, except that notices and communications to
the Administrative Agent pursuant to Article II, III, IV or IX shall not be
effective until received by the Administrative Agent. With respect to any
telephone notice given or received by the Administrative Agent pursuant to
Section 3.03 hereof, the records of the Administrative Agent shall be
conclusive for all purposes.
SECTION 10.03 No Waiver of Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 10.04 Costs, Expenses and Indemnification. (a) The Borrower
agrees to pay when due, in accordance with the terms hereof, all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), of (i) the Administrative Agent and CSI in connection with the
preparation, negotiation, execution and delivery of the Loan Documents and
the administration of the Loan Documents, the care and custody of any and all
collateral, and any proposed modification, amendment, or consent relating
thereto; and (ii) the Administrative Agent, CSI and each Lender in connection
with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes or any other Loan Document.
(b) The Borrower hereby agrees to indemnify and hold each Lender, CSI,
the Administrative Agent and their respective officers, directors, employees,
professional advisors and affiliates (each, an "Indemnified Person") harmless
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable attorney's fees and expenses, whether or not
such Indemnified Person is named as a party to any proceeding or
investigation or is otherwise subjected to judicial or legal process arising
from any such proceeding or investigation) which any of them may incur or
which may be claimed against any of them by any person or entity (except to
the extent such claims, damages, losses, liabilities, costs or expenses arise
from the gross negligence or willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution, delivery or
performance of any of the Loan Documents or any transaction contemplated
thereby, or the use by the Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of the Borrower
or any of its Affiliates at any time and in any place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution
and delivery of any of the Loan Documents.
(c) The Borrower's obligations under this Section 10.04 shall survive
the assignment by any Lender pursuant to Section 10.07 and shall survive as
well the repayment of all amounts owing to the Lenders and the Administrative
Agent under the Loan Documents and the termination of the Commitment of any
Lender and the termination of the Commitments. If and to the extent that the
obligations of the Borrower under this Section 10.04 are unenforceable for
any reason, the Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
SECTION 10.05 Right of Set-off. (a) Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 8.02 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 8.02, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations hereunder, and that
the obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of the
Borrower's rights to any independent claim that the Borrower may have against
the Administrative Agent or any Lender, but no Lender shall be liable for the
conduct of the Administrative Agent or any other Lender, and the
Administrative Agent shall not be liable for the conduct of any Lender.
SECTION 10.06 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender and
their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 10.07 Assignments and Participation. (a) Each Lender may
assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement, the Notes and the Security Documents
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it) with the prior written
consent of the Borrower to the extent the assignee thereunder is not then a
Lender or an Affiliate of a Lender (which consent shall not be unreasonably
withheld); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement, (ii) to the extent the assignee
thereunder is not then a Lender or an Affiliate of a Lender, the amount of
the Commitment or Note of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Lender Assignment with
respect to such assignment) shall in no event be less than the lesser of the
amount of such Lender's Commitment and $3,000,000, and (iii) the parties to
each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, a Lender Assignment,
together with any Note or Notes subject to such assignment and a processing
and recordation fee of $2,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Lender
Assignment, which effective date shall be at least five Business Days after
the execution thereof, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Lender Assignment, have the rights and obligations of
a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it to an
assignee pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of a
Lender Assignment covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto); provided, however, if an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have declared
all Advances to be immediately due and payable hereunder a Lender may assign
all or a portion of its rights and obligations without the prior written
consent of the Borrower but otherwise in accordance with this Section.
(b) By executing and delivering a Lender Assignment, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as
provided in such Lender Assignment, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other
instrument or document furnished pursuant thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of each Loan Document, together
with copies of the financial statements referred to in Section 6.01(e) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Lender Assignment;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement, the Notes and the Security Documents; (v) such assignee
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement, the Notes and
the Security Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this Agreement,
the Notes and the Security Documents are required to be performed by it as a
Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 10.02 a copy of each Lender Assignment delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Lender Assignment has
been completed and is in substantially the form of Exhibit 10.07 hereto,
(i) accept such Lender Assignment, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Lender Assignment and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or Notes shall be
in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Lender Assignment and shall otherwise be in substantially the form of
Exhibit 1.01A or Exhibit 1.01B hereto, as the case may be.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the
Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and (v) the holder of
any such participation, other than an Affiliate of such Lender, shall not be
entitled to require such Lender to take or omit to take any action hereunder,
except action (A) extending the time for payment of interest on, or the final
maturity of any portion of the principal amount of, the Notes, (B) reducing
the principal amount of or the rate of interest payable on the Notes or
(C) releasing all or substantially all of the Collateral otherwise than in
accordance with the provisions for such release contained in the Security
Documents.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.07,
disclose to the assignee or participant or proposed assignee or participant,
any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree, in
accordance with the terms of Section 10.08, to preserve the confidentiality
of any Confidential Information received by it from such Lender.
(g) If any Lender shall have delivered a notice to the Administrative
Agent described in Section 4.03(a), (b), (c) or (f) hereof, or shall become a
non-performing Lender under Section 3.04(b) hereof, and if and so long as
such Lender shall not have withdrawn such notice or corrected such non-
performance in accordance with Section 3.04(b), the Borrower or the
Administrative Agent may demand that such Lender assign in accordance with
Section 10.07 hereof, to one or more assignees designated by either the
Borrower or the Administrative Agent (and reasonably acceptable to the
other), all (but not less than all) of such Lender's Commitment, Advances,
participation and other rights and obligations hereunder; provided that any
such demand by the Borrower during the continuance of an Event of Default or
an Unmatured Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the Administrative
Agent or the Borrower, any such assignee so designated shall fail to tender
such assignment on terms reasonably satisfactory to the Lender, or the
Borrower and the Administrative Agent shall have failed to designate any such
assignee, then such demand by the Borrower or the Administrative Agent shall
become ineffective, it being understood for purposes of this provision that
such assignment shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled to tender
such assignment forthwith, if such assignee (1) shall agree to such
assignment in substantially the form of the Lender Assignment and (2) shall
tender payment to such Lender in an amount equal to the full outstanding
dollar amount accrued in favor of such Lender hereunder (as computed in
accordance with the records of the Administrative Agent.)
(h) Anything in this Section 10.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.08 Confidentiality. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower
has furnished and will from time to time furnish to the Administrative Agent
and the Lenders (each, a "Recipient") written information which is identified
to the Recipient when delivered as confidential (such information, other than
any such information which (i) was publicly available, or otherwise known to
the Recipient, at the time of disclosure, (ii) subsequently becomes publicly
available other than through any act or omission by the Recipient or
(iii) otherwise subsequently becomes known to the Recipient other than
through a Person whom the Recipient knows to be acting in violation of his or
its obligations to the Borrower, being hereinafter referred to as
"Confidential Information"). The Recipient will not knowingly disclose any
such Confidential Information to any third party (other than to those persons
who have a confidential relationship with the Recipient), and will take all
reasonable steps to restrict access to such information in a manner designed
to maintain the confidential nature of such information, in each case until
such time as the same ceases to be Confidential Information or as the
Borrower may otherwise instruct. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so exchange
Confidential Information shall be conditioned upon any such prospective
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not
prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or (iii) otherwise, as required by law; in the event of any
required disclosure under clause (ii) or (iii), above, the Recipient agrees
to use reasonable efforts to inform the Borrower as promptly as practicable.
SECTION 10.09 Certain Authorizations and Consent. Each Bank by its
acceptance hereof, and each other Lender by its execution and delivery of the
Lender Assignment pursuant to which it became a Lender, consents to,
authorizes, ratifies and confirms in all respects:
(i) the execution, delivery, acceptance and performance by the
Administrative Agent and by the Collateral Agent of the Collateral
Agency Agreement, as the same may be from time to time amended in
accordance with the terms thereof;
(ii) the execution, delivery and acceptance by the Collateral Agent
of, and the taking by the Collateral Agent of all actions under, the
Security Documents, as the same may be from time to time amended in
accordance with Section 10.01 hereof, and any and all documents that may
from time to time after the date hereof constitute Security Documents;
and
(iii) that upon the Closing hereunder, the Collateral Agency
Agreement shall supersede the Existing Collateral Agency Agreement and
Bankers Trust Company shall be replaced as Collateral Agent under the
Existing Collateral Agency Agreement by Chemical as successor Collateral
Agent under the Collateral Agency Agreement;
the execution and delivery of this Agreement by such Bank, or the execution
and delivery of such Lender Assignment by such Lender, as the case may be,
constituting (without further act or deed) such Bank's or Lender's, as the
case may be, acceptance and approval of, and agreement to the terms of, the
Collateral Agency Agreement and the other Security Documents.
SECTION 10.10 Waiver of Jury Trial. The Borrower, the Administrative
Agent, and the Lenders each hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of or relating to
this Agreement or any other Loan Document, or any other instrument or
document delivered hereunder or thereunder.
SECTION 10.11 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Borrower, the Lenders and the Administrative Agent each
(i) irrevocably submits to the jurisdiction of any New York State Court or
Federal court sitting in New York City in any action arising out of any Loan
Document, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service of process
by mail. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 10.12 Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document,
or actions taken or to be taken by any party thereunder, shall be construed
to create a partnership, association, or joint venture between such parties
or any of them. No term or provision of the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege to, any
Person other than the parties hereto.
SECTION 10.13 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
CHEMICAL BANK,
as Administrative Agent
By /s/
Name: Jane Ritchie
Title: Vice President
Commitment Lender
$12,500,000.00 CHEMICAL BANK
By /s/
Name: Jane Ritchie
Title: Vice President
Commitment Lender
$11,111,111.11 BANK OF AMERICA ILLINOIS
By /s/
Name: Felipe A. Gomez
Title: Authorized Officer
Commitment Lender
$11,111,111.11 CITIBANK, N.A.
By /s/
Name: Paul T. Addison
Title: Attorney In Fact
Commitment Lender
$11,111,111.11 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/
Name: Robert Ivosevich
Title: Senior Vice President
Commitment Lender
$11,111,111.11 THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/
Name: Noboru Kubota
Title: Deputy General Manager
Commitment Lender
$5,555,555.56 FLEET NATIONAL BANK
By /s/
Name: Suresh Chivukula
Title: Vice President
Commitment Lender
$5,555,555.56 THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By /s/
Name: Gina Kearns
Title: Vice President & Manager
Commitment Lender
$5,555,555.56 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By /s/
Name: Robert W. Ramage, Jr.
Title: Senior Vice President
Commitment Lender
$5,555,555.56 MELLON BANK, N.A.
By /s/
Name: Jocelin Reed
Title: Officer
Commitment Lender
$5,555,555.56 THE NIPPON CREDIT BANK, LTD.
By /s/
Name: Yoshihide Watanabe
Title: Vice President and Manager
Commitment Lender
$11,111,111.11 CIBC INC.
By /s/
Name: Margaret E. McTigue
Title: Director
Commitment Lender
$11,111,111.11 TORONTO DOMINION (NEW YORK),
INC.
By /s/
Name: Debbie A. Greene
Title: Vice President
Commitment Lender
$4,166,666.67 BARCLAYS BANK PLC
By /s/
Name: Sydney G. Dennis
Title: Director
Commitment Lender
$4,166,666.67 THE FIRST NATIONAL BANK
OF CHICAGO
By /s/
Name: Madeleine N. Pember
Title: Corporate Banking Officer
Commitment Lender
$5,555,555.56 THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH
By /s/
Name: Y. Kobayashi
Title: Deputy General Manager
Commitment Lender
$4,166,666.67 THE FIRST NATIONAL BANK
OF BOSTON
By /s/
Name: Frank T. Smith
Title: Director
SCHEDULE I
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
U.S. $125,000,000 REVOLVING CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Eurodollar
Name of Bank Domestic Lending Office Lending Office
Chemical Bank 140 East 45th Street 140 East 45th Street
New York, NY 10017 New York, NY 10017
Bank of America Illinois 231 South LaSalle Street 231 South LaSalle Street
Chicago, IL 60697 Chicago, IL 60697
Citibank, N.A. One Court Square One Court Square
7th Floor, Zone 2 7th Floor, Zone 2
Long Island City, NY 11120 Long Island City, NY 11120
Credit Lyonnais, New Credit Lyonnais Building Credit Lyonnais Building
York Branch 1301 Avenue of the Americas 1301 Avenue of the Americas
New York, NY 10019 New York, NY 10019
The Long-Term Credit 165 Broadway 165 Broadway
Bank of Japan, Limited, New York, NY 10006 New York, NY 10006
New York Branch
Fleet National Bank 1 Federal Street 1 Federal Street
Boston, MA 02211 Boston, MA 02211
The Fuji Bank, Limited, Two World Trade Center Two World Trade Center
New York Branch New York, NY 10048 New York, NY 10048
The Industrial Bank of 245 Park Avenue, 23rd Floor 245 Park Avenue, 23rd
Floor
Japan Trust Company New York, NY 10167 New York, NY 10167
Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank Center
Pittsburgh, PA 15259-0003 Pittsburgh, PA 15259-0003
The Nippon Credit Bank, 245 Park Avenue, 30th Floor 245 Park Avenue, 30th
Floor
Ltd. New York, NY 10167 New York, NY 10167
CIBC Inc. Two Paces West Two Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Toronto Dominion 900 Fannin, Suite 1700 900 Fannin, Suite 1700
(New York), Inc. Houston, TX 77010 Houston, TX 77010
Barclays Bank PLC 222 Broadway, 11th Floor 222 Broadway, 11th Floor
New York, NY 10038 New York, NY 10038
The First National Bank One First National Plaza One First National Plaza
of Chicago Chicago, IL 60670 Chicago, IL 60670
The Yasuda Trust & 666 Fifth Avenue, Suite 801 666 Fifth Avenue, Suite 801
Banking Company, New York, NY 10103 New York, NY 10103
Limited, New York Branch
First National Bank of 100 Federal Street 100 Federal Street
Boston Boston, MA 02106 Boston, MA 02106
EXHIBIT 1.01A
FORM OF COMPETITIVE NOTE
$125,000,000 New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned, PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE, a New Hampshire corporation (the "Borrower"), hereby promises to
pay to the order of (the "Lender"), at the
office of Chemical Bank at 140 East 45th Street, New York, New York 10017,
(i) on the last day of each Interest Period, as defined in the Credit
Agreement (referred to below), the aggregate unpaid principal amount of all
Competitive Advances (as defined in the Credit Agreement) made by the Lender
to the Borrower pursuant to Section 3.03 of the Credit Agreement to which
such Interest Period applies and (ii) on the Termination Date (as defined in
the Credit Agreement), the lesser of the principal sum of $125 Million
Dollars ($125,000,000) and the aggregate unpaid principal amount of all
Competitive Advances made by the Lender to the Borrower pursuant to
Section 3.03(b) of the Amended and Restated Revolving Credit Agreement dated
as of __________ __, 1996, among the Borrower, certain Lenders parties
thereto, and Chemical Bank, as Administrative Agent (the "Credit Agreement"),
in lawful money of the United States of America in immediately available
funds, and to pay interest on such principal amount from time to time
outstanding, in like funds, at said office, at a rate or rates per annum and
payable with respect to such periods and on such dates as determined pursuant
to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their
due dates at a rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Competitive Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holders
in its internal records; provided, however, that any failure of the holder
hereof to make such a notation or any error in such notation shall not in any
manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Competitive Note and the
Credit Agreement.
This Competitive Note is one of the Competitive Notes referred to in the
Credit Agreement, and is entitled to the benefits thereof and subject to the
provisions thereof and of the Collateral Agency Agreement (as defined in the
Credit Agreement). The Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. This
Competitive Note shall be construed in accordance with and governed by the
laws of the State of New York and any applicable laws of the United States of
America.
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By /s/
Title:
GRID NOTE SCHEDULE
COMPANY NAME: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
ISSUE DATE
AMOUNT OF PRINCIPAL
INTEREST RATE
INTEREST PERIOD
NUMBER OF DAYS
INTEREST DUE
DATE PAID
AMOUNT PAID
NOTED BY
EXHIBIT 1.01B
FORM OF CONTRACT NOTE
$[insert amount of Lender's New York, New York
Commitment] [Date]
FOR VALUE RECEIVED, the undersigned, PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE, a New Hampshire corporation (the "Borrower"), hereby promises to
pay to the order of _____________________ (the "Lender"), at the office of
Chemical Bank at 140 East 45th Street, New York, New York 10017, (i) on the
last day of each Interest Period, as defined in the Credit Agreement
(referred to below), the aggregate unpaid principal amount of all Contract
Advances (as defined in the Credit Agreement) made by the Lender to the
Borrower pursuant to Sections 3.01 of the Credit Agreement to which such
Interest Period applies and (ii) on the Termination Date (as defined in the
Credit Agreement), the lesser of the principal sum of __________ Dollars
($_________) and the aggregate unpaid principal amount of all Contract
Advances made by the Lender to the Borrower pursuant to the Amended and
Restated Revolving Credit Agreement dated as of __________ __, 1996, among
the Borrower, certain Lenders parties thereto, and Chemical Bank, as
Administrative Agent (the "Credit Agreement"), outstanding on the Termination
Date, in lawful money of the United States of America in immediately
available funds, and to pay interest on such principal amount from time to
time outstanding, in like funds, at said office, at a rate or rates per annum
and payable on such dates as determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their
due dates at a rate or rates determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Contract Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a party hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; provided, however, that any failure of the holder
hereof to make such a notation or any error in such notation shall not in any
manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Contract Note and the
Credit Agreement.
This Contract Note is one of the Contract Notes referred to in the
Credit Agreement and is entitled to the benefits thereof and subject to the
provisions thereof and of the Collateral Agency Agreement (as defined in the
Credit Agreement). The Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. This
Contract Note shall be construed in accordance with and governed by the laws
of the State of New York and any applicable laws of the United States of
America.
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By /s
Title:
GRID NOTE SCHEDULE
COMPANY NAME: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
DATE OF ADVANCE/CONVERSION DATE
AMOUNT OF PRINCIPAL
INTEREST RATE
INTEREST PERIOD
NUMBER OF DAYS
INTEREST DUE
DATE PAID
AMOUNT PAID
NOTED BY
EXHIBIT 1.01C
EXECUTION COPY
AMENDED AND RESTATED
COLLATERAL AGENCY AGREEMENT
among
CHEMICAL BANK,
as Collateral Agent
and Administrative Agent
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
and
THE OTHER HOLDERS OF SECURED
CLAIMS REFERRED TO HEREIN
Dated as of April 1, 1996
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS 3
1.01. Defined Terms 3
ARTICLE II
SECURITY 5
2.01. Purpose of Agreement 5
2.02. Collateral 5
2.03. Pari Passu Claims 6
2.04. Collateral Agent's Power of Investment 6
ARTICLE III
DISTRIBUTIONS 6
3.01. Default 6
3.02. Distributions 7
3.03. Marshalling 9
ARTICLE IV
AGENCY 9
4.01. Appointment and Duties of Collateral Agent 9
4.02. Rights of Collateral Agent 10
4.03. Lack of Reliance on the Collateral Agent 12
4.04. Indemnification 13
4.05. The Collateral Agent in its Individual Capacity 14
4.06. Resignation or Removal of the Collateral Agent 14
ARTICLE V
MISCELLANEOUS 15
5.01. Amendments; Etc 15
5.02. Addresses for Notices 15
5.03. Binding Effect 15
5.04. Transfers 15
5.05. Termination 16
5.06. Governing Law; Terms 16
5.07. Execution in Counterparts 16
5.08. Separate Liability 16
5.09. Sharing of Payments 16
AMENDED AND RESTATED
COLLATERAL AGENCY AGREEMENT
THIS AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT, dated as of April
1, 1996, among:
(i) Chemical Bank, as administrative agent under each of the
Credit Agreements referred to below for the Lenders referred to below
(in each such capacity together with its successors, the "Administrative
Agent");
(the parties referred to in the foregoing clause (i), together with the
Lenders referred to below, and the Collateral Agent referred to below, being
hereinafter referred to, collectively, as the "Secured Parties" and,
individually, as a "Secured Party");
(ii) Public Service Company of New Hampshire, a New Hampshire
corporation (the "Borrower"); and
(iii) Chemical Bank ("Chemical"), as mortgagee under the PSNH
Mortgage referred to below, as collateral agent hereunder for the
Secured Parties (in such capacities, all as described herein and in the
other Security Documents referred to below, in each case together with
its successors, the "Collateral Agent").
PRELIMINARY STATEMENTS
(i) In connection with securing certain credit facilities, the
Borrower entered into the Collateral Agency Agreement, dated as of May
1, 1991 (the "Existing Collateral Agency Agreement"), with Bankers Trust
Company, as Collateral Agent, Citibank, N.A., as Term Agent, and
Chemical, as Revolving Agent, and certain other holders of secured
claims thereunder;
(ii) The Term Credit Agreement (as defined in the Existing
Collateral Agency Agreement) has terminated, and accordingly the
capacity of Term Agent has terminated and Citibank, N.A. is no longer
the Term Agent;
(iii) In connection with the amendment and restatement and
supplementation of the Revolving Credit Agreement (as defined in the
Existing Collateral Agency Agreement) by the Credit Agreements referred
to below, Chemical is being redesignated as Administrative Agent under
the said Credit Agreements, and there is no longer any Revolving Agent
(as defined in the said Revolving Credit Agreement);
(iv) In connection with securing the Credit Agreements referred to
below, Bankers Trust Company, as former Collateral Agent, Chemical, as
successor Collateral Agent, and the Borrower are entering into a
Replacement of Collateral Agent, together with Assignment by Mortgagee,
Assignee and Secured Party, dated on or about the date hereof, pursuant
to which Chemical is replacing Bankers Trust Company as Collateral
Agent;
(v) The Borrower has entered into an Amended and Restated
Revolving Credit Agreement, in an aggregate principal amount of up to
$125,000,000, among the Borrower, the banks named therein and certain
lenders from time to time party thereto and the Administrative Agent,
dated as of April 1, 1996 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Amended and Restated
Revolving Credit Agreement");
(vi) The Borrower has entered into a 364-Day Revolving Credit
Agreement, in an aggregate principal amount of up to $100,000,000, among
the Borrower, the banks named therein and certain other lenders from
time to time party thereto and the Administrative Agent, dated as of
April 1, 1996 (as the same may be amended, supplemented or otherwise
modified from time to time, the "364-Day Revolving Credit Agreement");
and
(vii) Pursuant to the Credit Agreements (as defined below), the
Existing Collateral Agency Agreement is being amended and restated by
this Agreement, and Bankers Trust Company as Collateral Agent under the
Existing Collateral Agency Agreement is being replaced by Chemical as
successor Collateral Agent under this Agreement.
As security for the obligations of the Borrower to the Secured Parties,
the Borrower also has entered into the PSNH Mortgage.
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. Terms used herein and defined in the
Amended and Restated Revolving Credit Agreement shall have the meanings
therein indicated except that the terms defined in the preamble and the
Preliminary Statements and the following terms shall have the meanings set
forth herein:
"A Claims" means all obligations of the Borrower, now or hereafter
existing, to pay principal, interest (including, without limitation,
interest that, but for the filing of a petition in bankruptcy with
respect to the Borrower, would accrue on such obligations), fees,
expenses or other amounts to the Administrative Agent and/or the
Lenders, under the Loan Documents related to the 364-Day Revolving
Credit Agreement, and any instruments or documents executed and
delivered pursuant thereto and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment
is avoided or recovered directly or indirectly from the Collateral
Agent, the Administrative Agent or any Secured Party as a preference,
fraudulent transfer or otherwise.
"Acceleration Notice" has the meaning assigned to that term in
Section 3.01(b) hereof.
"Administrative Agent Claims" means all obligations of the Borrower
now or hereafter existing, to pay fees, costs, indemnities and expenses
to the Administrative Agent under either Credit Agreement.
"Agreement" means this Collateral Agency Agreement, as amended from
time to time.
"B Claims" means all obligations of the Borrower, now or hereafter
existing, to pay principal, interest (including, without limitation,
interest that, but for the filing of a petition in bankruptcy with
respect to the Borrower, would accrue on such obligations), fees,
expenses or other amounts to the Administrative Agent and/or the
Lenders, under the Loan Documents related to the Amended and Restated
Revolving Credit Agreement and any instruments or documents executed and
delivered pursuant thereto and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment
is avoided or recovered directly or indirectly from the Collateral
Agent, the Administrative Agent or any Secured Party as a preference,
fraudulent transfer or otherwise.
"Collateral" means the collateral subject to the PSNH Mortgage, and
any other property or interest held by or for the benefit of the
Collateral Agent as security for the Secured Claims.
"Collateral Agent Claims" means all obligations of the Borrower,
now or hereafter existing, to pay fees, costs, indemnities and expenses
to the Collateral Agent pursuant to Section 4.02(g) hereof and under the
other Security Documents.
"Credit Agreements" means, collectively, the Amended and Restated
Revolving Credit Agreement and the 364-Day Revolving Credit Agreement;
individually, a "Credit Agreement".
"Default Exercise Notice" has the meaning assigned to that term in
Section 3.01(b) hereof.
"Event of Default" means any "Event of Default" (as therein
defined) under any of the Credit Agreements or Security Documents.
"Holder" has the meaning assigned to that term in Section 2.01
hereof.
"Lenders" means the Lenders and Banks under and as defined in each
of the Credit Agreements.
"Loan Documents" means the "Loan Documents" (as defined in each
Credit Agreement).
"Principal Office" means the office of the Collateral Agent
presently located at 140 East 45th Street, New York, New York 10017, or
such other office as the Collateral Agent may designate from time to
time.
"PSNH Mortgage" means the Mortgage, Assignment, Security Agreement
and Financing Statement, entitled "PSNH Mortgage" on the cover page
thereof, by Borrower as Grantor to Bankers Trust Company, dated as of
May 1, 1991, as assigned to Chemical by assignment and as amended by the
First Amendment thereto, both dated on or about the date hereof, and as
amended from time to time.
"Required Creditors" means on any date of determination, Lenders
who, collectively, on such date hold at least (i) 66-2/3% of the
aggregate principal amount of the loans and advances then outstanding
under the Credit Agreements and (ii) 66-2/3% of the aggregate Available
Commitments under the Credit Agreements. The Collateral Agent may rely
solely on certificates provided from time to time to the Collateral
Agent by the Administrative Agent under each Credit Agreement in the
Collateral Agent's determination of whether the percentage specified in
the immediately preceding sentence has been satisfied.
"Secured Claims" means the Administrative Agent Claims, the
Collateral Agent Claims, the A Claims and the B Claims.
"Security Documents" means, collectively, the PSNH Mortgage and
this Agreement, in each case, as amended, supplemented or otherwise
modified from time to time; individually, a "Security Document".
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
ARTICLE II
SECURITY
SECTION 2.01 Purpose of Agreement. This Agreement defines various
relationships among the Secured Parties and sets forth the duties and powers
of the Collateral Agent with respect to the Collateral, and is made for the
benefit of each of the Secured Parties as holders (individually, a "Holder"
and collectively, the "Holders") of the Secured Claims existing from time to
time, to secure the payment of all such Secured Claims and the due
performance of and compliance with all the terms of and other obligations
under the Loan Documents.
SECTION 2.02 Collateral. The Holders of the Secured Claims are
entitled, pursuant to the terms hereof and of the other Security Documents,
to the benefits of any Collateral held or to be held by or for the benefit of
the Collateral Agent. The Borrower will deliver or cause to be delivered to
the Collateral Agent, promptly upon the execution and delivery thereof,
executed counterparts of all Loan Documents and the First Mortgage Indenture.
The Collateral Agent shall keep all Security Documents delivered to it at the
Principal Office and shall permit any Secured Party to inspect such Security
Documents upon request during business hours. All references herein to any
Security Document shall mean such Security Document as at the time amended,
supplemented or otherwise modified in accordance with the terms thereof and
hereof.
SECTION 2.03 Pari Passu Claims. The Administrative Agent acknowledges
and agrees (which acknowledgment and agreement shall be binding upon the
Lenders) with the other Secured Parties that, except as expressly set forth
in Section 3.02 hereof, (i) all Secured Claims shall rank pari passu and
shall be entitled to payment equally and ratably from any proceeds of and
realizations upon the Collateral and (ii) no Holder of Secured Claims shall
be entitled to any priority or preference over any other Holder of Secured
Claims.
SECTION 2.04 Collateral Agent's Power of Investment. The Collateral
Agent shall invest all moneys from time to time held by it in Permitted
Investments in accordance with the Borrower's instructions received no later
than 10:15 a.m. (New York City time) on the day on which such investments
shall be made. In the absence of any such instructions on any day on which
investments shall be made, the Collateral Agent shall invest all such moneys
in direct obligations of the United States of America, or obligations
guaranteed as to principal and interest by the United States of America. The
Collateral Agent shall maintain records of all such investment activity.
ARTICLE III
DISTRIBUTIONS
SECTION 3.01 Default. (a) Unless an Event of Default shall have
occurred and be continuing, the Collateral Agent shall not be obligated to
take any action under this Agreement or any of the Security Documents, except
for the performance of such duties as are specifically set forth herein or
therein.
(b) The Administrative Agent (in its capacity as such under either
Credit Agreement) agrees that, if with the consent or at the direction of the
Majority Lenders (as defined in either Credit Agreement, as the case may be)
the Administrative Agent shall propose to exercise any remedy provided for in
Section 8.02 of either such Credit Agreement, as the case may be, or if the
loans and advances shall automatically become due and payable as provided for
in said Section, the Administrative Agent shall, as promptly as practicable,
provide written notice (a "Default Exercise Notice") pursuant to the
applicable Credit Agreement by hand, courier or telecopy of such proposed
exercise or the automatic acceleration, as the case may be, to the Collateral
Agent. Such Default Exercise Notice shall specify the remedy then proposed
to be exercised and the Event(s) of Default entitling the Administrative
Agent to exercise such remedy. If the remedy proposed to be exercised shall
include the declaration of the loans and advances outstanding under such
Credit Agreement to be immediately due and payable or if such loans and
advances shall have become automatically due and payable, such Default
Exercise Notice shall be deemed to be an "Acceleration Notice".
(c) If at any time the Collateral Agent shall have received (i) an
Acceleration Notice from the Administrative Agent in its capacity as such
under one of the Credit Agreements but not the other or (ii) an Acceleration
Notice from the Administrative Agent in its capacity as such under one of the
Credit Agreements but shall not have received prior thereto a Default
Exercise Notice from the Administrative Agent in its capacity as such under
the other Credit Agreement, the Collateral Agent shall, subject in all cases
to Sections 3.01(d), 4.01(c), 4.02 and 5.01 hereof, exercise or refrain from
exercising all such rights, powers and remedies as shall be available to it
under the Security Documents in accordance with any written instructions
received from the Administrative Agent in its capacity pursuant to which it
delivered such Acceleration Notice. If at any time (whether or not the
provisions of the preceding sentence shall have theretofore been applicable),
the Collateral Agent shall have received (i) a Default Exercise Notice from
the Administrative Agent in its capacity as such under one of the Credit
Agreements but shall not have received an Acceleration Notice from the
Administrative Agent in such capacity under the other Credit Agreement,
(ii) a Default Exercise Notice from the Administrative Agent in its capacity
as such under one of the Credit Agreements but, thereafter, shall receive an
Acceleration Notice from the Administrative Agent in its capacity under the
other Credit Agreement, or (iii) Acceleration Notices pursuant to both Credit
Agreements, the Collateral Agent shall, subject in all cases to Sections
3.01(d), 4.01(c), 4.02 and 5.01 hereof, exercise or refrain from exercising
all such rights, powers and remedies as shall be available to it under the
Security Documents in accordance with any written instructions received from
the Required Creditors.
(d) Notwithstanding any written instructions received by the Collateral
Agent pursuant to the foregoing paragraph (c) or anything contained in
Section 5.01 to the contrary, and except as expressly provided in the PSNH
Mortgage, the Collateral Agent shall not release any Collateral or part
thereof or lien thereon without the written consent of the Administrative
Agent in its capacity as such under both Credit Agreements.
SECTION 3.02 Distributions. If any Event of Default shall have
occurred and be continuing, and if the Administrative Agent shall have
declared all loans and advances under each Credit Agreement to be immediately
due and payable thereunder (or if such loans and advances have otherwise
automatically become immediately due and payable), all Collateral held by the
Collateral Agent (including deposits and investments in cash collateral
accounts) and all cash proceeds received by the Collateral Agent in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Collateral Agent, be held by the
Collateral Agent as Collateral for the Secured Parties, and then or at any
time thereafter be distributed in whole or in part by the Collateral Agent in
the following order of priority, unless otherwise directed by all parties
hereto (other than the Borrower):
First: To the Collateral Agent in an amount equal to the
Collateral Agent Claims due and payable as of the date of such
distribution;
Second: To the Administrative Agent in an amount equal to the
Administrative Agent Claims, due and payable as of the date of such
distribution;
Third: To the Administrative Agent (on behalf of Holders of the A
Claims and the B Claims) in an amount equal to the fees, costs and
expenses due and payable in respect of such Secured Claims as of the
date of such distribution;
Fourth: To the Administrative Agent (on behalf of Holders of the A
Claims and the B Claims) in an amount equal to the interest due and
payable in respect of such Secured Claims as of the date of such
distribution;
Fifth: To the Administrative Agent (on behalf of Holders of the A
Claims and the B Claims) in an amount equal to the principal due and
payable in respect of such Secured Claims as of the date of such
distribution;
Sixth: To the Administrative Agent (on behalf of Holders of the A
Claims and the B Claims) for any other amounts not described above,
direct or contingent or whether or not due and payable (but only to the
extent then due and payable as of the date of such distribution, the
remainder to be held as collateral for the benefit of such Holders until
such time as the same shall become due and payable); and
Seventh: To the extent of any surplus (but only after payment in
full of all Secured Claims, direct or contingent, and whether or not
then due and payable), to the Borrower, except as may be provided
otherwise by law,
it being understood that the Borrower shall remain liable to the extent of
any deficiency between the amount of the proceeds of the Collateral and the
aggregate of the sums referred to in clauses first through sixth of this
Section 3.02.
Prior to any distribution hereunder, upon the request of the Collateral
Agent, the Administrative Agent shall provide to the Collateral Agent from
time to time certificates, in form and substance reasonably satisfactory to
the Collateral Agent, setting forth the respective amounts referred to in
paragraphs second through sixth of this Section 3.02 in respect of the
different Secured Claims.
In the event that funds to be distributed by the Collateral Agent
pursuant to paragraphs second through sixth of this Section 3.02 shall be
insufficient to pay in full the Secured Claims referred to therein,
distributions made pursuant to paragraphs second through sixth of this
Section 3.02 shall be made pro rata based on the aggregate amount of Secured
Claims referred to in each such paragraph.
SECTION 3.03 Marshalling. The Collateral Agent shall not be required
to marshall any present or future security for the Secured Claims or to
resort to such security in any particular order; and all of the Collateral
Agent's rights hereunder and in respect of such security shall be cumulative
and in addition to all other rights, however existing or arising.
ARTICLE IV
AGENCY
SECTION 4.01 Appointment and Duties of Collateral Agent. (a) The
Secured Parties hereby designate and appoint Chemical to act as the
Collateral Agent hereunder and with respect to the other Security Documents,
and each of the Secured Parties hereby authorizes Chemical as such Collateral
Agent, to take such actions on its behalf hereunder and under the provisions
of the other Security Documents and to exercise such powers and perform such
duties expressly delegated to the Collateral Agent by the terms of the
Security Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
in the Security Documents, the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth in the Security Documents,
or any fiduciary relationship with any Secured Party, and no implied
covenants, functions or responsibilities shall be read into the Security
Documents or otherwise exist against the Collateral Agent. The Collateral
Agent shall not be liable for any action taken or omitted to be taken by it
hereunder or under any Loan Document, or in connection herewith or therewith,
or in connection with the Collateral, unless caused by its gross negligence
or willful misconduct.
(b) The Collateral Agent will give notice to the Secured Parties of any
action taken under any Security Document; such notice shall be given promptly
after the taking of any such action.
(c) Notwithstanding anything to the contrary in this Agreement or any
of the other Security Documents and in any event subject to the provisions of
Section 5.01 hereof, the Collateral Agent shall not be required to exercise
any rights or remedies under any of the Security Documents or give any
consent under any of the Security Documents or enter into any agreement
amending, modifying, supplementing or waiving any provision of any Security
Document unless it shall have been directed to do so (i) in accordance with
Section 3.01(c) hereof or (i) otherwise by the Required Creditors.
(d) The Borrower shall promptly forward to the Collateral Agent copies
of all notices, certificates and other documents required to be delivered by
it to the Trustee pursuant to the terms of the First Mortgage Indenture and
not also required to be delivered by it to the Collateral Agent pursuant to
the terms of the PSNH Mortgage. The only obligation which the Collateral
Agent shall have hereunder with respect to such notices, certificates and
other documents shall be to promptly forward to the Secured Parties copies of
any such notices, certificates or documents.
SECTION 4.02 Rights of Collateral Agent. (a) The Collateral Agent may
execute and effect any of its duties under the Security Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.
(b) Neither the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for
any action taken or omitted to be taken in good faith by it or such Person
under or in connection with any Security Document (except for its or such
Person's own gross negligence or willful misconduct), or (ii) responsible in
any manner to any of the Secured Parties for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in any Loan Document, Security Document or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Collateral Agent under or in connection with, any Loan
Document, Security Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any Security Documents or Loan
Documents, or for any failure of the Borrower to perform its obligations
thereunder. The Collateral Agent shall not be under any obligation to any
Secured Party to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, any Security
Document, or to inspect the properties, books or records of the Borrower.
(c) The Collateral Agent shall be entitled to rely, and shall be fully
protected in relying upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Collateral Agent. The
Collateral Agent shall be fully justified in failing or refusing to take any
action hereunder or under any other Security Document (i) if such action
would, in the opinion of the Collateral Agent, be contrary to law or the
terms of this Agreement or the other Security Documents, (ii) if it shall not
receive any such advice or concurrence of the Administrative Agent or the
Required Creditors as it deems appropriate, or (iii) if it shall not first be
indemnified to its satisfaction by the Secured Parties against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent shall in all cases
be fully protected in acting, or in refraining from acting, under any
Security Document in accordance with a request of either Administrative Agent
or the Required Creditors, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Secured Parties.
(d) If, with respect to a proposed action to be taken by it, the
Collateral Agent shall determine in good faith that the provisions of this
Agreement relating to the functions or responsibilities or discretionary
powers of the Collateral Agent are or may be ambiguous or inconsistent, the
Collateral Agent shall notify the Secured Parties, identifying the proposed
action and the provisions that it considers are or may be ambiguous or
inconsistent, and may decline either to perform such function or
responsibility or to exercise such discretionary power unless it has received
the written confirmation of the Required Creditors that the Required
Creditors concur in the circumstances that the action proposed to be taken by
the Collateral Agent is consistent with the terms of this Agreement or is
otherwise appropriate. Subject to the provisions of Sections 3.01(d) and
5.01 hereof, the Collateral Agent shall be fully protected in acting or
refraining from acting upon the confirmation of the Required Creditors in
this respect, and such confirmation shall be binding upon the Collateral
Agent and the other Secured Parties.
(e) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect knowledge or notice of the occurrence of any
Event of Default unless and until the Collateral Agent has received a Default
Exercise Notice, Acceleration Notice or certificate stating that an Event of
Default or Unmatured Default has occurred from a Secured Party or the
Borrower. The Collateral Agent shall have no obligation whatsoever either
prior to or after receiving such Default Exercise Notice, Acceleration Notice
or certificate to inquire whether an Unmatured Default or an Event of Default
has in fact occurred and shall be entitled to rely conclusively, and shall be
fully protected in so relying on any Default Exercise Notice, Acceleration
Notice or certificate so furnished to it. The Collateral Agent may, but
shall not be obligated to, take action hereunder on the basis of an Event of
Default whether or not the Collateral Agent has received any Default Exercise
Notice, Acceleration Notice or certificate stating that an Event of Default
has occurred. No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(f) In determining whether it has been directed to take action or
refrain from taking action by the Required Creditors, the Collateral Agent
shall be entitled to request and to rely upon a certificate signed by the
Administrative Agent (in its capacity as such under each Credit Agreement) as
to any directions from the Majority Lenders under either Credit Agreement.
(g) The Borrower will upon demand pay to the Collateral Agent the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel (and any local counsel) and of any experts and
agents, which the Collateral Agent may incur in connection with (i) the
preparation, execution and delivery and the administration of this Agreement
and the other Security Documents, and any proposed modification, amendment,
consent or waiver relating thereto (whether or not executed), (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement
(whether through negotiations, legal proceedings or otherwise) of any of the
rights of the Collateral Agent or the Secured Parties hereunder or under the
other Security Documents or (iv) the failure by the Borrower to perform or
observe any of the provisions hereof or of any of the other Security
Documents.
SECTION 4.03 Lack of Reliance on the Collateral Agent. Each of the
Secured Parties expressly acknowledges that neither the Collateral Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act
by the Collateral Agent hereinafter taken, including, without limitation, any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Collateral Agent to any Secured Party.
Each Secured Party represents to the Collateral Agent that it has,
independently and without reliance upon the Collateral Agent or any other
Secured Party, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the Borrower and made its own decision to enter into this Agreement, the
other Security Documents, and the Loan Documents, as the case may be. Each
Secured Party also represents that it will, independently and without
reliance upon the Collateral Agent or any other Secured Party, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement, the other Security Documents, and
the Loan Documents, as the case may be, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except
for notices, reports and other documents expressly required to be furnished
to the Secured Parties by the Collateral Agent hereunder, the Collateral
Agent shall not have any duty or responsibility to provide any Secured Party
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of the Collateral Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 4.04 Indemnification. The Secured Parties (other than the
Collateral Agent) agree to indemnify the Collateral Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the aggregate
principal amounts of their respective Secured Claims or, if no such Secured
Claims exist, ratably according to the aggregate amounts of their respective
Commitments, outstanding on the date the activities giving rise to the
Collateral Agent's demand for indemnification occurred, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time following
the payment of the Secured Claims) be imposed on, incurred by or asserted
against the Collateral Agent in its capacity as such in any way relating to
or arising out of the Security Documents, or the performance of its duties as
Collateral Agent hereunder or thereunder or any action taken or omitted by
the Collateral Agent in its capacity as such under or in connection with any
of the foregoing; provided that the Secured Parties shall not be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent that any of the foregoing result from the Collateral Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Secured Party (other than the Collateral Agent) agrees to reimburse the
Collateral Agent promptly upon demand, ratably according to the aggregate
principal amount of its respective Secured Claim or, if no such Secured Claim
exists, ratably according to the aggregate amount of its Commitment,
outstanding on the date the activities giving rise to such reimbursement
occurred, of any out-of-pocket expenses (including counsel fees) incurred by
the Collateral Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement and the other Security
Documents to the extent that the Collateral Agent is entitled to
reimbursement pursuant to Section 4.02(g) hereof but is not reimbursed for
such expenses by the Borrower. The agreements in this Section shall survive
the payment of the Secured Claims.
SECTION 4.05 The Collateral Agent in its Individual Capacity. The
Collateral Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and its
Affiliates as though the Collateral Agent were not the Collateral Agent under
the Security Documents. With respect to loans made or renewed by it, any
note issued to it and any other obligations owing to it by the Borrower, the
Collateral Agent shall have the same rights and powers under the Security
Documents as any Secured Party and may exercise the same as though it were
not the Collateral Agent.
SECTION 4.06 Resignation or Removal of the Collateral Agent. The
Collateral Agent may resign as Collateral Agent upon 30 days' notice to the
Secured Parties and may be removed at any time with or without cause by the
Required Creditors, with any such resignation or removal to become effective
only upon the appointment of a successor Collateral Agent under this Section
4.06. If the Collateral Agent shall resign or be removed as Collateral Agent
under the Security Documents then the Administrative Agent shall (and if no
such successor shall have been appointed within 30 days of the Collateral
Agent's resignation or removal, the Collateral Agent may) appoint a successor
agent for the Secured Parties, whereupon such successor agent shall succeed
to the rights, powers and duties of the "Collateral Agent", and the term
"Collateral Agent" shall mean such successor agent effective upon its
appointment, and the former Collateral Agent's rights, powers and duties as
Collateral Agent shall be terminated, without any other or further act or
deed on the part of such former Collateral Agent (except that the resigning
Collateral Agent shall deliver all Collateral then in its possession to the
successor Collateral Agent) or any of the other Secured Parties. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of Article IV of this Agreement shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Collateral Agent under the Security Documents.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Amendments; Etc. (a) No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in
writing, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that (i) no such amendment, waiver or consent shall be effective
unless made in accordance with Section 10.01 of the Credit Agreements, and
signed by the Collateral Agent and the Administrative Agent and (ii) no such
amendment, waiver or consent shall, unless in writing and signed by the
Borrower, adversely affect the rights and duties of the Borrower under this
Agreement.
(b) The Administrative Agent agrees to promptly deliver to the
Collateral Agent any amendment, modification or supplement to either Credit
Agreement and related Loan Document, in either case, to which it is a party.
SECTION 5.02 Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopy
or telegraphic communication) and, if to the Borrower, mailed, telegraphed,
telecopied or delivered to it, at its address set forth in Section 10.02 of
each Credit Agreement; if to Chemical, in its capacity as Administrative
Agent or Collateral Agent, mailed, telegraphed, telecopied or delivered to
it, addressed to it at 140 East 45th Street, New York, New York 10017,
Attention: Janet Belden: Loan Servicing. All such notices and other
communications shall, when mailed, telegraphed, telecopied or delivered, be
effective three days after when deposited in the mails, or when delivered to
the telegraph company or sent by telecopier or delivered to it, respectively,
addressed as aforesaid.
SECTION 5.03 Binding Effect. This Agreement and the obligations of the
parties hereto shall be binding upon their respective successors and assigns,
and shall, together with the rights and remedies of the parties hereto, inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 5.04 Transfers. Any Secured Party may at any time assign,
transfer, grant or sell participations in its rights and interests under the
Security Documents, subject, however, to the restrictions, if any, imposed on
the assignment, transfer, grant or sale of participations in the Secured
Claims owing to such Secured Party pursuant to the Loan Document giving rise
to such Secured Claims, whereupon any such transferee shall be deemed to be a
Holder of a Secured Claim, in each instance for all purposes of this
Agreement and entitled to all rights and benefits hereunder to the extent of
the interest so transferred.
SECTION 5.05 Termination. Upon receipt by the Collateral Agent of
(i) notice from the Administrative Agent under each Credit Agreement that
they have received evidence satisfactory to them of the payment in full or
other satisfaction of the A Claims and B Claims, respectively, and
(ii) payment in full or other satisfaction of the Collateral Agent Claims and
the Administrative Agent Claims, this Agreement shall terminate.
SECTION 5.06 Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York except to
the extent that the validity or perfection of any security interest, or
remedies hereunder or under the other Security Documents, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than
the State of New York. Unless otherwise defined herein or in the other
Security Documents, terms used in Article 9 of the Uniform Commercial Code in
the State of New York are used herein as therein defined.
SECTION 5.07 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
instrument.
SECTION 5.08 Separate Liability. The obligations of each Secured Party
under this Agreement shall be several and not joint, and no Secured Party
shall be liable or responsible for the acts of any other Secured Party.
SECTION 5.09 Sharing of Payments. If at any time any Secured Party (a
"Receiving Secured Party") shall have received any payment or distribution
(whether voluntary, involuntary, through the exercise of any right of set-
off, or otherwise, and whether in cash, property or securities) in excess of
the payments or distributions such Receiving Secured Party would have
received through the operation of Section 3.02 hereof (such excess payments
or distributions being referred to as "Excess Payments"), then such Receiving
Secured Party shall hold such Excess Payments in trust for the benefit of the
other Secured Parties, and shall promptly pay over such Excess Payments in
the form received (duly endorsed, if necessary, to the Collateral Agent) to
the Collateral Agent, for distribution by the Collateral Agent pursuant to
Section 3.02 hereof.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PUBLIC SERVICE COMPANY
OF NEW HAMPSHIRE
By /s/
Title:
CHEMICAL BANK,
as Administrative Agent
under each Credit Agreement and as
Collateral Agent
By /s/
Title:
EXHIBIT 1.01D
FORM OF PSNH MORTGAGE AMENDMENT
[THIS DOCUMENT IS LOCATED AT THE END - AFTER THE $100,000,000
REVOLVING CREDIT AGREEMENT]
EXHIBIT 1.01E
FORM OF PSNH MORTGAGE ASSIGNMENT
REPLACEMENT OF COLLATERAL AGENT,
TOGETHER WITH ASSIGNMENT BY MORTGAGEE,
ASSIGNEE AND SECURED PARTY
Reference is made to that certain Mortgage, Assignment, Security
Agreement and Financing Statement (the "Mortgage"), dated as of May 1, 1991,
given by PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, a New Hampshire
corporation, as mortgagor, assignor and debtor ("GRANTOR"), to BANKERS TRUST
COMPANY, Four Albany Street, New York, New York 10015, as Collateral Agent
(as further described in the Mortgage) and as mortgagee, assignee and secured
party, which Mortgage was recorded on May 16, 1991 in each Registry of Deeds
in New Hampshire as follows:
Registry of Deeds Book Page
Belknap 1170 679
Carroll 1447 537
Cheshire 1367 549
Coos 778 392
Grafton 1909 321
Hillsborough 5255 1185
Merrimack 1859 1005
Rockingham 2876 677
Strafford 1554 1
Sullivan 938 305
WHEREAS, the Collateral Agency Agreement (as described in the Mortgage
and hereafter referred to as the "Existing Collateral Agency Agreement") is
being superseded, amended and restated effective as of April 30, 1996 (the
"Effective Date") by the Amended and Restated Collateral Agency Agreement
(the "Amended and Restated Collateral Agency Agreement") dated as of April 1,
1996, among Grantor and Chemical Bank, as Collateral Agent and Administrative
Agent, and certain other holders of secured claims referred to therein;
WHEREAS, in connection with implementation of the Amended and Restated
Collateral Agency Agreement and other agreements referred to therein Bankers
Trust Company is as of the Effective Date being replaced and removed as
Collateral Agent under the Existing Collateral Agency Agreement by Chemical
Bank as Collateral Agent under the Amended and Restated Collateral Agency
Agreement;
WHEREAS, GRANTOR concurs in the replacement and removal by CHEMICAL BANK
of BANKERS TRUST COMPANY as Collateral Agent and to the assignment of the
Mortgage to CHEMICAL BANK and the succession of CHEMICAL BANK as mortgagee,
assignee and secured party under the Mortgage;
NOW, THEREFORE, notice is hereby given and BANKERS TRUST COMPANY,
GRANTOR and CHEMICAL BANK hereby act and agree as follows:
1. BANKERS TRUST COMPANY gives notice of its replacement and removal
as Collateral Agent under the Existing Collateral Agency Agreement by
CHEMICAL BANK as Collateral Agent under the Amended and Restated Collateral
Agency Agreement, and such replacement and removal shall be effective as of
the Effective Date.
2. As of the Effective Date, BANKERS TRUST COMPANY hereby assigns all
of its right, title and interest as mortgagee, assignee and secured party
under the Mortgage to CHEMICAL BANK as successor Collateral Agent.
3. CHEMICAL BANK acknowledges that it is replacing BANKERS TRUST
COMPANY as Collateral Agent as of the Effective Date.
4. CHEMICAL BANK hereby accepts the assignment to it as successor
Collateral Agent of all of the right, title and interest of BANKERS TRUST
COMPANY as mortgagee, assignee and secured party under the Mortgage.
5. Until further written notice may be recorded, CHEMICAL BANK is
Mortgagee under the Mortgage.
6. The parties hereto hereby agree and acknowledge that the provisions
of Article IV of the Existing Collateral Agency Agreement shall survive the
delivery of the Amended and Restated Collateral Agency Agreement and shall
continue to inure to the benefit of Bankers Trust Company as to any action
taken or omitted to be taken by it while it was Collateral Agent under the
Security Documents (as defined in the Existing Collateral Agency Agreement),
including but not limited to any actions taken or omitted to be taken in
connection with its removal and replacement as Collateral Agent.
7. All persons henceforth concerned with the Mortgage shall direct any
notice, demand, consent, approval, direction, request, agreement, or other
communication to Mortgagee as follows:
CHEMICAL BANK
140 East 45th Street
New York, NY 10017
Attention: Loan Servicing
EXECUTED AND AGREED to as of April 1, 1996.
BANKERS TRUST COMPANY,
as Collateral Agent as aforesaid
[Sign in black ink] By: /s/
Name:
Its:
CHEMICAL BANK,
as successor Collateral Agent
as aforesaid
[Sign in black ink] By: /s/
Name:
Its:
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
[Sign in black ink] By: /s/
Name:
Its:
STATE OF
COUNTY OF
Then personally appeared before me ,
, of Public Service Company of New Hampshire, a New
Hampshire corporation, and severally acknowledged the foregoing instrument to
be his/her free act and deed in said capacity and the free act and deed of
said corporation.
Witness my hand and notarial seal this ______ day of _______________,
1996, at .
[Sign in black ink] /s/
Notary Public in and for the State of
My Commission Expires:
(Notarial Seal)
STATE OF
COUNTY OF
Then personally appeared before me ,
, of BANKERS TRUST COMPANY, a New York banking
corporation, and severally acknowledged the foregoing instrument to be
his/her free act and deed in said capacity and the free act and deed of said
corporation.
Witness my hand and notarial seal this ______ day of _______________,
1996, at .
[Sign in black ink] /s/
Notary Public in and for the State of
My Commission Expires:
(Notarial Seal)
STATE OF
COUNTY OF
Then personally appeared before me ,
, of CHEMICAL BANK, a New York banking corporation, and
severally acknowledged the foregoing instrument to be his/her free act and
deed in said capacity and the free act and deed of said corporation.
Witness my hand and notarial seal this ______ day of _______________,
1996, at .
[Sign in black ink] /s/
Notary Public in and for the State of
My Commission Expires:
(Notarial Seal)
EXHIBIT 3.01A
FORM OF NOTICE OF CONTRACT BORROWING
[Date]
Chemical Bank, as Agent for
the Lenders referred to below,
140 East 45th Street
New York, New York 10017
Attention:
Ladies and Gentlemen:
The undersigned, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (the
"Borrower"), refers to the Amended and Restated Revolving Credit Agreement,
dated as of __________ __, 1996 (the "Revolving Credit Agreement"), among the
Borrower, the Lenders parties thereto, and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Revolving Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 3.01 of the
Revolving Credit Agreement that it requests a Contract Borrowing under the
Revolving Credit Agreement, and in that connection sets forth below the terms
on which such Borrowing is requested to be made:
(A) Date of Contract Borrowing
(which is a Business Day) ________________________
(B) Principal Amount of
Contract Borrowing(1) _________________________
(C) Interest rate basis(2) _________________________
(D) Interest Period and the last
day thereof(3) _________________________
The undersigned hereby certifies that the following statements are true
on the date hereof and will be true on the date of the Borrowing:
(A) the representations and warranties contained in Section 6.01
of the Revolving Credit Agreement, and in Section 1.02 of the PSNH
Mortgage are correct before and after giving effect to the Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date;
(B) no Event of Default or Unmatured Default has occurred and is
continuing, or would result from the Borrowing or from the application
of the proceeds thereof; and
(C) the Debt Limit in effect on such date shall not be exceeded on
such date by the making of such Advance or otherwise.
Very truly yours,
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
[By /s/
Title:]
(1)Not less than $10,000,000 and in integral multiples of 1,000,000.
(2)Eurodollar Advance or Base Rate Advance.
(3)Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
EXHIBIT 3.03A-1
FORM OF COMPETITIVE BID REQUEST
(Eurodollar Competitive Borrowing)
[Date](1)
Chemical Bank, as Administrative Agent, for the Lenders parties to the Credit
Agreement referred to below
140 East 45th Street
New York, New York 10017
Attention: ____________________
Ladies & Gentlemen:
The undersigned, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (the
"Borrower"), refers to the Amended and Restated Revolving Credit Agreement,
dated as of __________ __, 1996 (the "Revolving Credit Agreement"), among the
Borrower, the Lenders named therein, and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Revolving Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 3.03(b)(i) of the
Revolving Credit Agreement that it requests a Competitive Borrowing to
consist of Eurodollar Competitive Advances under the Revolving Credit
Agreement, and in that connection sets forth below the terms on which such
Competitive Borrowing is requested to be made:
(i) Lenders selected to
make Competitive Bids
(no more than six Lenders)
(ii) Date of Competitive
Borrowing (which is a Business Day)
(iii) Aggregate Principal Amount
of Eurodollar Competitive
Advances
(iv) Interest Period for Eurodollar
Competitive Advances and the
last day thereof
Upon acceptance of any or all of the Eurodollar Rate Advances offered by
the Lenders in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions precedent to each Advance
specified in Section 5.02(a) of the Revolving Credit Agreement have been
satisfied.
Very truly yours,
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
[By________________________________
Title:]
(1)Not later than four Business Days prior to date of proposed Competitive
Borrowing to consist of Eurodollar Competitive Advances.
(2)Not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(3)Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
EXHIBIT 3.03A-2
FORM OF CONFIRMATION OF COMPETITIVE BORROWING
(Fixed Rate Competitive Advance)
[Date](1)
Chemical Bank, as Administrative Agent, for the Lenders parties to the Credit
Agreement referred to below
140 East 45th Street
New York, New York 10017
Attention: ____________________
Ladies and Gentlemen:
The undersigned, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (the
"Borrower"), refers to the Amended and Restated Revolving Credit Agreement,
dated as of __________ __, 1996 (the "Revolving Credit Agreement"), among the
Borrower, the Lenders named therein, and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Revolving Credit Agreement. The Borrower
hereby confirms that pursuant to Section 3.03(b) (i) of the Revolving Credit
Agreement it has requested a Competitive Borrowing to consist of Fixed Rate
Competitive Advances under the Revolving Credit Agreement, on the following
terms:
(i) Lenders selected to make
Competitive Bids
(no more than six Lenders)
(ii) Date of Competitive Borrowing
(which is a Business Day)
(iii) Aggregate Principal Amount of
Fixed Rate Advances(2)
(iv) Interest Period for Fixed
Rate Competitive Advances
and the last day thereof(3)
The undersigned further confirms that it has accepted the following
Fixed Rate Competitive Bids on the terms set forth below:
Lender _____________ Lender _______________
Principal Principal
Amount _____________(4) Amount _______________(4)
Fixed Rate _____________ Fixed Rate _______________
Lender _____________ Lender _______________
Principal Principal
Amount _____________(4) Amount _______________(4)
Fixed Rate _____________ Fixed Rate _______________
Lender _____________ Lender _______________
Principal Principal
Amount _____________(4) Amount _______________(4)
Fixed Rate _____________ Fixed Rate _______________
The undersigned hereby certifies that the following statements are true
on the date hereof:
(A) the representations and warranties contained in Section 6.01
of the Revolving Credit Agreement, in [list other Sections from other
Loan Documents] are correct, before and after giving effect to the
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date;
(B) no Event of Default or Unmatured Default has occurred and is
continuing, or would result from the Borrowing or from the application
of the proceeds thereof; and
(C) the Debt Limit in effect on such date shall not be exceeded by
the making of such Advance or otherwise.
Very truly yours,
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
[By /s/
Title:]
(1)The day of the Competitive Borrowing.
(2)Not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(3)Which shall be subject to the definition of "Interest Period" and endnot
later than the Termination Date.
(4)Not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
EXHIBIT 3.03B
FORM OF NOTICE OF COMPETITIVE BID REQUEST
(Eurodollar Competitive Advance)
[Name of Lender]
[Address]
Attention: [Date]
Ladies and Gentlemen:
Reference is made to the Amended and Restated Revolving Credit
Agreement, dated as of __________ __, 1996 (the "Revolving Credit
Agreement"), among PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (the "Borrower"),
the Lenders named therein, and Chemical Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Revolving Credit Agreement. The
Borrower made a Competitive Bid Request on , 19 , pursuant to
Section 3.03(b)(i) of the Revolving Credit Agreement, and in that connection
you are invited to submit a Competitive Bid by [Date]/[Time].(1) Your
Competitive Bid must comply with Section 3.03(b)(ii) of the Revolving Credit
Agreement and the terms set forth below on which the Competitive Bid Request
was made:
(i) Date of Competitive Borrowing
(which is a Business Day) _________________________
(ii) Aggregate amount of Eurodollar
Competitive Advances _________________________
(iii) Interest Period for Eurodollar
Competitive Advances and the last
day thereof _________________________
Very truly yours,
CHEMICAL BANK,
as Administrative Agent
By /s/
Title:
(1)The Competitive Bid must be received by the Administrative Agent in the
case of a proposed Competitive Borrowing to consist of Eurodollar Competitive
Advances, by telex or telecopier not later tha 9:30 a.m. (New York City
time), three Business Days prior to a proposed Competitive Borrowing.
EXHIBIT 3.03C-1
FORM OF COMPETITIVE BID
(Eurodollar Competitive Advance)
[Date]
Chemical Bank, as Administrative
Agent, for the Lenders parties to
the Credit Agreement referred to
below
140 East 45th Street
New York, New York 10017
Attention: ____________________
Ladies & Gentlemen:
The undersigned, [Name of Lender], refers to the Amended and Restated
Revolving Credit Agreement, dated as of __________ __, 1996 (the "Revolving
Credit Agreement"), among PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE (the
"Borrower"), the Lenders named therein, and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Revolving Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section
3.03(b)(ii) of the Revolving Credit Agreement, in response to the Competitive
Bid Request made by the Borrower on _________, 19 , and in that connection
sets forth below the terms on which such Competitive Bid is made:
(i) Principal Amount of
Eurodollar Competitive
Advance ___________________
(ii) Competitive Margin [%]/[+/- %]
(iii) Interest Period for
Eurodollar Competitive Advance
and last day thereof ___________________
The undersigned hereby confirms that it is prepared to extend credit to
the Borrower upon acceptance by the Borrower of this bid in accordance with
Section 3.04 of the Revolving Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By /s/
Title:
(1)Three Business Days prior to a proposed Competitive Borrowing to consist
of Eurodollar Rate Advances.
(2)Not less than $5,000,000 or greater than the aggregate amont of the
proposed Competitive Borrowing and in an integral multiple of $1,000,000.
Multiplle bids will be accepted by the Administative Agent.
EXHIBIT 3.03C-2
FORM OF CONFIRMATION OF COMPETITIVE BID
(Fixed Rate Competitive Advance)
[Date](1)
Chemical Bank, as Administrative
Agent, for the Lenders parties to
the Credit Agreement referred to
below
140 East 45th Street
New York, New York 10017
Attention: ____________________
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Amended and Restated
Revolving Credit Agreement, dated as of __________ __, 1996 (the "Revolving
Credit Agreement"), among PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, as
Borrower, the Lenders named therein, and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Revolving Credit Agreement. The undersigned
hereby confirms its Competitive Bid made pursuant to Section 3.03(b)(ii) of
the Revolving Credit Agreement in response to the Competitive Bid Request
made by the Borrower on ______, 19 , and in that connection sets forth below
the terms on which such Competitive Bid was made:
(i) Principal Amount of
Fixed Rate Competitive
Advance(2) _________________
(ii) Fixed Rate applicable to Fixed
Rate Competitive Advance(3) _________________%
Very truly yours,
[Name of Lender]
By /s/
Title: [Responsible Officer]
(1)The day of a proposed Competitive Borrowing to consist of Fixed Rate
Advances.
(2)Not less than $5,000,000 or an integral multiple of $1,000,000 in excess
therof.
(3)To be determined in accordance with the definition of "Fixed Rate
Competitive Advance" in Section 1.01 of the Revolving Credit Agreement.
Please add additional lines as necessary to reflect any Fixed Rate
Competitive Advances which are offered at more than one Fixed Rate.
EXHIBIT 3.03D
FORM OF COMPETITIVE BID LETTER
(Eurodollar Competitive Advance)
[Date](1)
Chemical Bank, as Administrative
Agent, for the Lenders parties to
the Credit Agreement referred to
below
140 East 45th Street
New York, New York 10017
Attention: ____________________
Ladies and Gentlemen:
We refer to the Amended and Restated Revolving Credit Agreement, dated
as of __________ __, 1996 (the "Revolving Credit Agreement"), among PUBLIC
SERVICE COMPANY OF NEW HAMPSHIRE, as Borrower, the Lenders named therein, and
Chemical Bank, as Administrative Agent.
We have received a summary of bids in connection with our Competitive
Bid Request dated ___________, 19__ and in accordance with Section 3.03(iv)
of the Revolving Credit Agreement, we hereby accept the following bids for
maturity on [date]:
Principal Amount Competitive Margin Lender
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Competitive Margin Lender
$ [%]/[+/-. %]
$
The $ should be deposited in Chemical Bank account number [ ]
on [date] [or] [wire transferred to [Name of Bank] account number [ ]
[other wire instructions] on [date]].
Very truly yours,
PUBLIC SERVICE COMPANY
OF NEW HAMPSHIRE
[By /s/
Title:]
(1)In the case of a Competitive Borrowing to consist of Eurodollar
Competitive Advances, by not later than three Business Days before a proposed
Competitive Borrowing.
EXHIBIT 5.01A
[Form of Opinion of Jeffrey C. Miller,
Assistant General Counsel of NUSCO]
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, to the
Administrative Agent as referred to
below and to the Collateral Agent (as
defined in the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiv)(A) of
each of 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"; individually, a "Credit Agreement"), among Public
Service Company of New Hampshire (the "Borrower"), the Banks named therein
and certain lenders from time to time party thereto, and Chemical Bank, as
Administrative Agent for the Lenders. Unless otherwise defined herein, terms
defined in the Credit Agreements are used herein as therein defined.
I am the Assistant General Counsel of NUSCO and have assisted the
Borrower in the negotiation, execution and delivery of the Credit Agreements.
In that connection, I have examined:
(a) The Credit Agreements.
(b) The articles of incorporation of the Borrower and all amendments
thereto (the "Charter") and the by-laws of the Borrower and all amendments
thereto (the "By-laws"), in each case as in effect on the date hereof.
(c) The Security Documents.
(d) The other documents furnished by the Borrower pursuant to Sections
5.01 of each Credit Agreement.
In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements,
instruments and other documents, as I have deemed necessary as a basis for
the opinions expressed below. In my examination of such agreements,
instruments and documents, I have assumed the genuineness of all signatures
(other than those of the Borrower), the authenticity of all agreements,
instruments and documents submitted to me as originals, and the conformity to
original agreements, instruments and documents of all agreements, instruments
and documents submitted to me as certified, conformed or photostatic copies
and the authenticity of the originals of such copies. As to questions of
fact material to such opinions, I have assumed without verification and
relied upon the accuracy of the representations as to factual matters set
forth in the Credit Agreements and each other Loan Document and in
certificates of the Borrower or its officers or of public officials. Nothing
has come to my attention, however, calling into question the accuracy of such
representations.
I have assumed the due execution and delivery, pursuant to due
authorization, by the Banks, the Collateral Agent and the Administrative
Agent of the Credit Agreements and each other Loan Document to which they are
parties.
I am qualified to practice law in the State of New York and for purposes
of this opinion I do not purport to be expert on any laws other than the laws
of the State of New York, including any political subdivision thereof ("New
York") and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of New Hampshire, and is duly
qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary.
2. The execution, delivery and performance by the Borrower of
each Loan Document (including the PSNH Mortgage Amendment and PSNH
Mortgage Assignment), the Rate Agreement and each Significant Contract
are within the Borrower's corporate powers, and have been duly
authorized by all necessary corporate action, and, in all cases, do not
and will not contravene (i) the Borrower's Charter or By-laws or (ii)
any New York or Federal law or New York or Federal legal restriction or,
to the best of my knowledge, contractual restriction contained in any
material agreement binding on or affecting the Borrower; and such
execution, delivery and performance do not and will not result in or
require the creation of any Lien (other than pursuant to the Credit
Agreements or the Security Documents) upon or with respect to any of the
Borrower's properties. Each Loan Document has been duly executed and
delivered by the Borrower.
3. Each Loan Document (including the PSNH Mortgage Amendment and
PSNH Mortgage Assignment) to which the Borrower is a party (a) is a
legal, valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its respective terms (to the extent such
enforceability is a matter of New York law) and (b) is in full force and
effect as to the Borrower.
4. To the best of my knowledge, except as set forth in the
Disclosure Documents, there is no material pending or threatened action
or proceeding before any court, governmental agency or arbitrator, (a)
which affects or purports to affect the legality, validity or
enforceability of the Loan Documents, the Rate Agreement or any
Significant Contract, or (b) as to which the Borrower or any of its
subsidiaries is a party or of which any of their property is the subject
and as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, prospects or
operations of the Borrower and its subsidiaries as a whole.
5. No Governmental Approval of the type referred to in clause (i)
of the definition thereof pursuant to the Public Utility Holding Company
Act of 1935 is required.
The opinions set forth above are subject to the following qualifications:
(a) With respect to my opinion in paragraph 1 above, insofar as
such opinion relates to the laws of the States of Maine and Vermont, I
have relied on the opinions of Drummond Woodsum & MacMahon and Zuccaro,
Willis & Bent, respectively, delivered to you. With regard to all
matters of New Hampshire law contained herein, I have relied upon the
opinions of Robert A. Bersak, Assistant General Counsel of the Borrower,
and Sulloway & Hollis dated the date hereof.
(b) My opinions in paragraph 3 above (i) are subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, and general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law) and (ii) assume
the binding effect of all documents referred to therein on all parties
thereto other than the Borrower.
(c) I note further that, in addition to the application of
equitable principles described above, courts have imposed an obligation
on contracting parties to act reasonably and in good faith in the
exercise of their contractual rights and remedies, and may also apply
public policy considerations in limiting the right of parties seeking to
obtain indemnification against violations of securities and similar laws
and under circumstances where the conduct of such parties in the
circumstances in question is determined to have constituted negligence.
(d) With respect to my opinion in paragraph 3 above, I express no
opinion herein as to (i) Section 10.05 of each Credit Agreement, (ii)
the enforceability of provisions purporting to grant to a party
conclusive rights of determination, (iii) the availability of specific
performance or other equitable remedies and (iv) the enforceability of
waivers by parties of their respective rights and remedies under law.
I am aware that King & Spalding may rely upon the opinions set forth
herein in rendering their opinions furnished pursuant to Section
5.01(a)(xiv)(F), of each Credit Agreement, and I hereby authorize such
reliance.
Very truly yours,
EXHIBIT 5.01B
[Form of Opinion of Robert A. Bersak,
Assistant General Counsel of the Borrower]
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, to the
Administrative Agent as referred to below
and to the Collateral Agent (as defined in
the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiv)(B) of
each of the 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"), among Public Service Company of New Hampshire (the
"Borrower"), the Banks named therein and certain lenders from time to time
parties thereto, and Chemical Bank, as Administrative Agent for the Lenders.
Unless otherwise defined herein, terms defined in a Credit Agreement are used
herein as therein defined.
I am Assistant General Counsel of the Borrower and am responsible for
obtaining and maintaining all Governmental Approvals of the type referred to
in the definition of "Governmental Approvals" contained in the Credit
Agreements.
In connection with rendering this opinion I have examined:
(a) The Credit Agreements.
(b) The articles of incorporation of the Borrower and all amendments
thereto (the "Charter") and the by-laws of the Borrower and all amendments
thereto (the "By-laws"), in each case as in effect on the date hereof.
(c) The Security Documents.
(d) The other documents furnished by the Borrower pursuant to Sections
5.01 of each Credit Agreement.
In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements,
instruments and other documents, as I have deemed necessary as a basis for
the opinions expressed below. In my examination of such agreements,
instruments and documents, I have assumed the genuineness of all signatures
(other than those of the Borrower), the authenticity of all agreements,
instruments and documents submitted to me as originals, and the conformity to
original agreements, instruments and documents of all agreements, instruments
and documents submitted to me as certified, conformed or photostatic copies
and the authenticity of the originals of such copies. As to questions of
fact material to such opinions, I have assumed without verification and
relied upon the accuracy of the representations as to factual matters set
forth in the Credit Agreements and each other Loan Document and in
certificates of the Borrower or its officers or of public officials. Nothing
has come to my attention, however, calling into question the accuracy of such
representations.
I have assumed the due execution and delivery, pursuant to due
authorization, by the Banks, the Collateral Agent and the Administrative
Agent of the Credit Agreements and each other Loan Document to which they are
parties.
I am qualified to practice law in the State of New Hampshire and for
purposes of this opinion I do not purport to be expert on any laws other than
the laws of the State of New Hampshire, including any political subdivision
thereof ("New Hampshire") and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of New Hampshire, and is duly
qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property
owned or used by it makes such qualification necessary.
2. The execution, delivery and performance by the Borrower of
each Loan Document (including the PSNH Mortgage Amendment and PSNH
Mortgage Assignment), the Rate Agreement and each Significant Contract
are within the Borrower's corporate powers, and have been duly
authorized by all necessary corporate action, and, in all cases, do not
and will not contravene (i) the Borrower's Charter or By-laws or (ii)
any New Hampshire law or New Hampshire legal restriction or, to the
best of my knowledge, contractual restriction contained in any material
agreement binding on or affecting the Borrower; and such execution,
delivery and performance do not and will not result in or require the
creation of any Lien (other than pursuant to the Credit Agreements or
the Security Documents) upon or with respect to any of the Borrower's
properties. Each Loan Document has been duly executed and delivered by
the Borrower.
3. Each Loan Document (including the PSNH Mortgage Amendment and
PSNH Mortgage Assignment), the Rate Agreement and each Significant
Contract (a) is a legal, valid and binding obligation of the Borrower
enforceable in accordance with its respective terms (to the extent such
enforcement is a matter of New Hampshire law) and (b) is in full force
and effect as to the Borrower.
4. To the best of my knowledge, except as set forth in the
Disclosure Documents, there is no material pending or threatened action
or proceeding before any court, governmental agency or arbitrator, (a)
which affects or purports to affect the legality, validity or
enforceability of the Loan Documents, the Rate Agreement or any
Significant Contract, or (b) as to which the Borrower or any of its
subsidiaries is a party or of which any of their property is the subject
and as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, prospects or
operations of the Borrower and its subsidiaries as a whole.
5. None of the Lenders, the Administrative Agent or the
Collateral Agent is required to qualify to do business in New Hampshire,
or to comply with the requirement of any foreign lender statute in New
Hampshire, by virtue solely of the execution, delivery, performance or
enforcement of the Loan Documents or as a condition or requirement to
avail itself of the remedies provided thereby; nor will any such Person
be subject to taxation in New Hampshire solely by virtue of any such
circumstance.
6. The Borrower has obtained all Governmental Approvals referred
to in the definition of "Governmental Approvals" contained in the Credit
Agreements (except for those referred to in the succeeding sentence)
each of which is in full force and effect and all applicable periods of
time for review, rehearing or appeal with respect thereto have expired.
The Borrower has not obtained those "Governmental Approvals" of the type
referred to in clause (iii) of the definition thereof not yet required
but which are obtainable in the ordinary course of business as and when
required and those the absence of which would not materially adversely
affect the financial condition, properties, prospects or operations of
the Borrower as a whole.
The opinions set forth above are subject to the following
qualifications:
(a) With respect to my opinion in paragraph 1 above, insofar as
such opinion relates to the laws of the States of Maine and Vermont, I
have relied on the opinions of Drummond Woodsum & MacMahon and Zuccaro,
Willis & Bent, respectively, delivered to you.
(b) My opinions in paragraph 3 above (i) are subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law) and (ii) assume
the binding effect of all documents referred to therein on all parties
thereto other than the Borrower.
(c) I note further that, in addition to the application of
equitable principles described above, courts have imposed an obligation
on contracting parties to act reasonably and in good faith in the
exercise of their contractual rights and remedies, and may also apply
public policy considerations in limiting the right of parties seeking to
obtain indemnification against violations of Securities and similar laws
or under circumstances where the conduct of such parties in the
circumstances in question is determined to have constituted negligence.
(d) With respect to my opinion in paragraph 3 above, I express no
opinion herein as to (i) Section 10.05 of each Credit Agreement, (ii)
the enforceability of provisions purporting to grant to a party
conclusive rights of determination, (iii) the availability of specific
performance or other equitable remedies and (iv) the enforceability of
waivers by parties of their respective rights and remedies under law.
I am aware that King & Spalding and Jeffrey C. Miller may rely upon the
opinions set forth herein in rendering their opinions furnished pursuant to
Sections 5.01(a)(xiv)(F) and 5.01(a)(xiv)(A), respectively, of each Credit
Agreement, and I hereby authorize such reliance.
Very truly yours,
EXHIBIT 5.01C
[Form of Opinion of Sulloway & Hollis]
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, to the
Administrative Agent as referred to
below and to the Collateral Agent (as
defined in the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiv)(C) of
each of 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"; individually, a "Credit Agreement"), among Public
Service Company of New Hampshire (the "Borrower"), the Banks named therein
and certain lenders from time to time parties thereto, and Chemical Bank, as
Administrative Agent for the Lenders. Unless otherwise defined herein, terms
defined in the Credit Agreements are used herein as therein defined.
We have acted as special New Hampshire counsel to the Borrower in
connection with the Credit Agreements and the preparation and recording of
the PSNH Mortgage Assignment and the PSNH Mortgage Amendment.
In that connection, we have examined:
(a) The Credit Agreements.
(b) The Security Documents.
In addition, we have examined the originals, or copies certified to our
satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements,
instruments and other documents, as we have deemed necessary as a basis for
the opinions expressed below. In our examination of such agreements,
instruments and documents, we have assumed the genuineness of all signatures
(other than those of the Borrower), the authenticity of all agreements,
instruments and documents submitted to us as originals, and the conformity to
original agreements, instruments and documents of all agreements, instruments
and documents submitted to us as certified, conformed or photostatic copies
and the authenticity of the originals of such copies. As to questions of
fact material to such opinions, we have assumed without verification and
relied upon the accuracy of the representations as to factual matters set
forth in the Credit Agreements and each other Loan Document and in
certificates of the Borrower or its officers or of public officials. Nothing
has come to our attention, however, calling into question the accuracy of
such representations.
We are also assuming for purposes of this opinion that :
(i) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Hampshire.
(ii) Each of the Loan Documents as defined in each Credit Agreement
(including the PSNH Mortgage Assignment and PSNH Mortgage
Amendment) has been duly authorized, executed and delivered by all
parties thereto.
(iii) All approvals or other actions by any governmental authority
necessary for the issuance of the Notes, the execution,
delivery and performance by the Borrower of the Loan
Documents, and the grant and perfection of any security
interest, lien or mortgage contemplated by the Security
Documents have been obtained, are final and not subject to
appeal and remain in full force and effect on the Closing
Date. With regard only to the PSNH Mortgage and the
"memoranda or notices" referred to in paragraph 2 below, this
assumption is limited to approvals or other actions by any
governmental authority required by reason of any state or
federal law regulating public utilities or any state or
federal securities law.
(iv) The Term Credit Agreement (as defined in the Existing Collateral
Agency Agreement) has previously terminated; and the Borrower has
given the notice required under Section 2.03(a) of the Existing
Revolving Credit Agreement to terminate the Available Commitments
of all Lenders under that Agreement effective as of the Closing
Date.
We are qualified to practice law in the State of New Hampshire and for
purposes of this opinion we do not purport to be experts on any laws other
than the laws of the State of New Hampshire, including any political
subdivision thereof ("New Hampshire").
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The property described as the "Premises" in the PSNH Mortgage
constitutes all of the utility franchises held by the Borrower and all
of the Borrower's principal properties and substantially all of the
other property owned by the Borrower and used by the Borrower in its
business in New Hampshire (other than exceptions explicitly stated in
the PSNH Mortgage); and the manner in which such property is described
in the granting clauses of the PSNH Mortgage is adequate for the purpose
of creating the Lien on such property set forth in paragraph 2
following.
2. The PSNH Mortgage constitutes a valid second Lien in favor of
the Collateral Agent (the "PSNH Mortgage Lien") on the "Premises" (as
defined in the PSNH Mortgage) as security for the payment of the
"Obligations" (as defined in the PSNH Mortgage) subject only to
Permitted Encumbrances (as defined in the PSNH Mortgage) that may be
entitled to priority as a matter of law, and under existing law will,
subject only to such Permitted Encumbrances, constitute a valid Lien at
the time of acquisition on all properties and assets of the Borrower
acquired after the date hereof located within New Hampshire and required
by the PSNH Mortgage to be subjected to the Lien thereof (it being
understood, however, that under certain limited circumstances the PSNH
Mortgage Lien on real property in New Hampshire and personal property
located thereon could be subordinated to a Lien in favor of the State of
New Hampshire pursuant to the New Hampshire Revised Statutes Annotated
147-B: 10-b, as amended, for expenses incurred in containing or removing
hazardous waste or materials and any necessary mitigation of damages
with respect thereto); no Liens of the type referred to in the
immediately preceding parenthetical have been recorded, or, to the best
of our knowledge, threatened to be recorded by the State of New
Hampshire against any of the Borrower's properties; and the PSNH
Mortgage (including the acknowledgment) and any and all memoranda or
notices necessary to protect the priority of the PSNH Mortgage Lien are
each in appropriate form for recording in New Hampshire and have been
duly recorded or filed in all places within New Hampshire in which such
recording or filing is required to protect the priority of the PSNH
Mortgage Lien, resulting in the perfection of the PSNH Mortgage Lien;
under existing New Hampshire law no other or further or subsequent
filing, refiling, recording, re-recording, registration or re-
registration of the PSNH Mortgage or any other instrument will be
necessary to continue the PSNH Mortgage Lien; and all taxes and fees
required to be paid with respect to the execution, delivery and
recording of the PSNH Mortgage have been paid.
3. Each Loan Document (including the PSNH Mortgage Amendment and
PSNH Mortgage Assignment) to which the Borrower is a party is a legal,
valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its respective terms (to the extent such
enforceability is a matter of New Hampshire law).
4. In any action or proceeding arising out of or relating to the
Credit Agreements, the Notes or the Collateral Agency Agreement in any
court in New Hampshire, such court would recognize and give effect to
the provisions of the Credit Agreements, the Notes and the Collateral
Agency Agreement wherein the parties thereto agreed that the Credit
Agreements, the Notes and the Collateral Agency Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York. However, if a court were to hold that any of the Credit
Agreements, the Notes and the Collateral Agency Agreement is governed
by, and to be construed in accordance with, the laws of New Hampshire,
each of the Credit Agreements, the Notes and the Collateral Agency
Agreement would, under the laws of New Hampshire, constitute a legal,
valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
The opinions set forth above are subject to the following qualifications:
(a) Our opinions in paragraphs 3 and 4 above are subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) Our opinions in paragraphs 3 and 4 above are subject to the
effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(c) We note further that, in addition to the application of
equitable principles described above, courts have imposed an obligation
on contracting parties to act reasonably and in good faith in the
exercise of their contractual rights and remedies, and may also apply
public policy considerations in limiting the right of parties seeking to
obtain indemnification against violations of securities and similar laws
and under circumstances where the conduct of such parties in the
circumstances in question is determined to have constituted negligence.
(d) Our opinion in paragraph 3 above, with respect to the PSNH
Mortgage is subject to the qualification that certain provisions of the
PSNH Mortgage are or may be unenforceable in whole or in part under the
law of New Hampshire, but the inclusion of such provisions does not
affect the validity of the Mortgage, and the Mortgage contains adequate
remedies, if properly invoked, for the practical realization upon the
security afforded thereby. We point out, however, that under the law of
New Hampshire a purchaser at foreclosure sale would require the consent
and approval of the New Hampshire Public Utilities Commission to engage
in business as an electric public utility in the various areas in New
Hampshire in which the Borrower does such business.
(e) With respect to our opinions in paragraph 3 and 4 above, we
express no opinion therein as to (i) Section 10.05 of each Credit
Agreement, (i) the enforceability of provisions purporting to grant to a
party conclusive rights of determination, (i) the availability of
specific performance or other equitable remedies and (i) the
enforceability of waivers by parties of their respective rights and
remedies under law.
(f) Insofar as our opinions given above relate to the creation,
perfection or enforcement of liens on personal property of the Borrower,
they are given only to the extent that liens on such personal property
may be created, perfected or enforced under Article 9 of the Uniform
Commercial Code as presently in effect in New Hampshire.
We are aware that Jeffrey C. Miller, Robert A. Bersak and King &
Spalding may rely upon the opinions set forth herein in rendering their
opinions furnished pursuant to Sections 5.01(a)(xiv)(A), 5.01(a)(xiv)(B) and
5.01(a)(xiv)(F), respectively, of each Credit Agreement, and we hereby
authorize such reliance.
Very truly yours,
EXHIBIT 5.01D
[Form of Opinion of Drummond
Woodsum & MacMahon]
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, to the
Administrative Agent as referred to
below and to the Collateral Agent (as
defined in the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiv)(D) of
each of the 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"; individually, a "Credit Agreement"), among Public
Service Company of New Hampshire (the "Borrower"), the Banks named therein
and certain lenders from time to time parties thereto, and Chemical Bank, as
Administrative Agent for the Lenders. Unless otherwise defined herein, terms
defined in a Credit Agreement are used herein as therein defined.
We have acted as special Maine counsel for the Borrower in connection
with the transactions contemplated under the Credit Agreements.
In connection with this opinion, we have examined the Credit Agreements,
a certificate of the Secretary of State of Maine, dated April 8, 1996,
attesting to the authorization to do business and good standing of the
Borrower in Maine, the originals or copies certified to our satisfaction of
such corporate records of the Borrower, such certificates of public officials
and officers of the Borrower, and such other agreements, instruments and
documents as we have deemed necessary as a basis for the opinions expressed
below. In our examination of such agreements, instruments and documents, we
have assumed the genuineness of all signatures and the due authorization of
all signatures, the authenticity of all agreements, instruments and documents
submitted to us as originals, and the conformity to original agreements,
instruments and documents of all agreements, instruments and documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such copies.
As to questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied upon
certificates of the Borrower or its officers or of public officials.
We are assuming, for purposes of this opinion, that the Borrower is a
corporation organized and existing under the laws of the State of New
Hampshire and has, under its articles of incorporation, all requisite
corporate power and authority to own and operate its properties and carry on
its business as presently conducted, including without limitation the power
to make, generate, sell, distribute and supply electricity at wholesale and
retail. We are also assuming that the Collateral is all located outside the
State of Maine.
We are qualified to practice law in the State of Maine and we do not
purport to be experts on any laws other than the laws of the State of Maine.
Based upon the foregoing and upon such investigation as we deemed
necessary, we are of the opinion that:
1. The Borrower is a corporation duly qualified to do business
in, and is in good standing in, the State of Maine.
2. The execution, delivery and performance by the Borrower of
each Loan Document do not and will not contravene the laws of the State
of Maine (other than the state securities or "Blue Sky" laws of Maine,
as to which we express no opinion).
3. No Governmental Approval of the types referred to in clauses
(i) and (ii) in the definition of "Governmental Approvals" contained in
the Credit Agreements by any governmental authority in the State of
Maine or by any legal or regulatory body in the State of Maine (other
than in connection with or in compliance with the state securities or
"Blue Sky" laws of Maine, as to which we express no opinion) is required
as to any Loan Document.
4. To the best of our knowledge there is no pending or threatened
action or proceeding in the State of Maine affecting the Borrower or its
properties before any court, governmental agency or arbitrator, which
may, if adversely determined, purport to affect the legality, validity
or enforceability, of any Loan Document in effect on the date hereof.
We are aware that Jeffrey C. Miller, Robert A. Bersak, Sulloway & Hollis
and King & Spalding will rely upon the opinions set forth above in rendering
their opinions furnished pursuant to Section 5.01(a)(xiv)(A), (B), (C) and
(F), respectively, of each Credit Agreement, and we hereby authorize such
reliance.
Very truly yours,
EXHIBIT 5.01E
[Form of Opinion of Zuccaro, Willis & Bent]
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, the
Administrative Agent referred to below
and to the Collateral Agent (as defined in
the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiii)(E) of
each of the 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"; individually, a "Credit Agreement"), among Public
Service Company of New Hampshire (the "Borrower"), the Banks named therein
and certain lenders from time to time parties thereto, and Chemical Bank, as
Administrative Agent for the Lenders. Unless otherwise defined herein, terms
defined in a Credit Agreement are used herein as therein defined.
We have acted as special Vermont counsel for the Borrower in connection
with the transactions contemplated under the Credit Agreements.
In connection with this opinion, we have examined the Credit Agreements,
a certificate of the Secretary of State of Vermont, dated April __, 1996,
attesting to the authorization to do business and good standing of the
Borrower in Vermont, the originals or copies certified to our satisfaction of
such corporate records of the Borrower, such certificates of public officials
and officers of the Borrower, and such other agreements, instruments and
documents as we have deemed necessary as a basis for the opinions expressed
below. In our examination of such agreements, instruments and documents, we
have assumed the genuineness of all signatures, the authenticity of all
agreements, instruments and documents submitted to us as originals, and the
conformity to original agreements, instruments and documents of all
agreements, instruments and documents submitted to us as certified, conformed
or photostatic copies and the authenticity of the originals of such copies.
As to questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied upon
certificates of the Borrower or its officers or of public officials.
We are assuming, for purposes of this opinion, that the Borrower is a
corporation organized and existing under the laws of the State of New
Hampshire and has, under its articles of incorporation, all requisite
corporate power and authority to own and operate its properties and carry on
its business as presently conducted, including without limitation the power
to make, generate, sell, distribute and supply electricity at wholesale and
retail.
We are qualified to practice law in the State of Vermont and we do not
purport to be experts on any laws other than the laws of the State of
Vermont.
Based upon the foregoing and upon such investigation as we deemed
necessary, we are of the opinion that:
1. The Borrower is a corporation duly qualified to do business
in, and is in good standing in, the State of Vermont.
2. The execution, delivery and performance by the Borrower of
each Loan Document do not and will not contravene the laws of the State
of Vermont (other than the state securities or "Blue Sky" laws of
Vermont, as to which we express no opinion).
3. No Governmental Approval of the types referred to in clauses
(i) and (ii) in the definition of "Governmental Approvals" contained in
the Credit Agreements by any governmental authority in the State of
Vermont or by any legal or regulatory body in the State of Vermont
(other than in connection with or in compliance with the state
securities or "Blue Sky" laws of Vermont, as to which we express no
opinion) is required [except those listed on Schedule I hereto, each of
which has been duly obtained and is in full force and effect; and all
applicable periods of time for review, rehearing or appeal with respect
to such Governmental Approvals required by any such governmental
authority, legal or regulatory body have expired].
4. To the best of our knowledge there is no pending or threatened
action or proceeding in the State of Vermont affecting the Borrower or
its properties before any court, governmental agency or arbitrator,
which may, if adversely determined, purport to affect the legality,
validity or enforceability of any Loan Document in effect on the date
hereof.
We are aware that Jeffrey C. Miller, Robert A. Bersak, Sulloway & Hollis
and King & Spalding will rely upon the opinions set forth above in rendering
their opinions furnished pursuant to Section 5.01(a)(xiv)(A), (B), (C) and
(F), respectively, of each Credit Agreement, and we hereby authorize such
reliance.
Very truly yours,
EXHIBIT 5.01F
[Closing Date]
To each of the Banks party to the Credit
Agreements referred to below, to the
Administrative Agent referred to below
and to the Collateral Agent (as defined in
the Credit Agreements)
Public Service Company of New Hampshire
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiv)(F) of
each of the 364-Day Revolving Credit Agreement and the Amended and Restated
Revolving Credit Agreement, each dated as of April 1, 1996 (collectively, the
"Credit Agreements"; individually, a "Credit Agreement"), among Public
Service Company of New Hampshire (the "Borrower"), the Banks named therein
and certain lenders from time to time parties thereto and Chemical Bank, as
Administrative Agent for the Lenders. Unless otherwise defined herein, terms
defined in the Credit Agreements are used herein as therein defined.
We have acted as special New York counsel to the Administrative Agent in
connection with the preparation, execution and delivery of the Credit
Agreements.
In that connection, we have examined the following documents:
(a) The Credit Agreements, executed by each of the parties
thereto.
(b) The Notes, executed by the Borrower.
(c) The other documents furnished pursuant to Section 5.01 of each
Credit Agreement and listed on Exhibit A hereto, including the opinions
of counsel delivered pursuant to Sections 5.01(a)(xiv)(A) through (E) of
each Credit Agreement and listed on Exhibit A hereto as items __, __, __
and__ (collectively, the "Opinions").
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
submitted to us as copies. We have also assumed that each of the Banks, the
Collateral Agent and the Administrative Agent has duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the Credit Agreements.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that the Opinions and the other documents
referred to in item (c), above, are substantially responsive to the
requirements of the Sections of the Credit Agreements pursuant to which the
same have been delivered.
Our opinions expressed above are limited to the law of the State of New
York and the Federal law of the United States, and we do not express any
opinion herein concerning any other law.
Very truly yours,
PKS:MEO:acss
EXHIBIT 10.07
LENDER ASSIGNMENT
Dated ,
Reference is made to the Amended and Restated Revolving Credit
Agreement, dated as of __________ __, 1996 (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being the
"Credit Agreement"), among the Borrower, the Lenders named therein and from
time to time parties thereto, and Chemical Bank, as Administrative Agent for
the Lenders. Pursuant to the Credit Agreement, ________________ (the
"Assignor") has committed to make advances ("Advances") to the Borrower,
which Advances are evidenced by a promissory note (the "Note") issued by the
Borrower to the Assignor. Terms defined in the Credit Agreement are used
herein with the same meaning.
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, a portion of the Assignor's rights and
obligations under the Credit Agreement and the Security Documents as of the
Effective Date (as defined below) which represents the percentage interest
specified on Schedule 1 of all outstanding rights and obligations of the
Lenders under the Credit Agreement (the "Assigned Interest"), including,
without limitation, such percentage interest in the Commitment as in effect
on the Effective Date, the Advances outstanding on the Effective Date and the
Notes. After giving effect to such sale and assignment, the Assignee's
Commitment will be as set forth in Section 2 of Schedule 1. The effective
date of this sale and assignment shall be the date specified on Schedule 1
hereto (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, the principal amount of the Advances outstanding under the Credit
Agreement which are being assigned hereunder, and the sale and assignment
contemplated hereby shall thereupon become effective. 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 Credit Agreement
and the Note 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 principal, interest, fees, indemnities in respect of claims arising after
the Effective Date (subject to Section 10.04 of the Credit Agreement),
increased costs, additional amounts or otherwise; (ii) the right to vote and
to instruct the Administrative Agent under the Credit Agreement based on the
Assigned Interest; (iii) the right to set-off and to appropriate and apply
deposits of the Borrower as set forth in the Credit 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
Borrower, the Administrative Agent, the Collateral 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; (i) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, the Notes or the Security Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Notes, the Security Documents or any other instrument or
document furnished pursuant thereto; (ii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement, the Notes, the Security Documents or
any other instrument or document furnished pursuant thereto; and
(iii) attaches its Note and requests that the Administrative Agent obtain new
Note[s] from the Borrower in accordance with the terms of subsection 10.07(d)
of the Credit Agreement.
4. The Assignee (i) confirms that it has received a copy of the
Credit 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 Lender Assignment; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement, the Notes and the Security
Documents; (iii) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the
Credit Agreement, the Notes and the Security Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement, the Notes and the Security Documents are required to be
performed by it as a Lender; (v) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof; (vi) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as
to the Assignee's status for purposes of determining exemption from United
States withholding taxes with respects to all payments to be made to the
Assignee under the Credit Agreement (and the Notes) or such other documents
as are necessary to indicate that all such payments are subject to such rates
at a rate reduced by an applicable tax treaty; (vii) attaches a completed
Schedule 2 (the Administrative Questionnaire) hereto; and (viii) confirms
that it has paid the processing and recordation fee referred to in subsection
10.07(a)(iii) of the Credit Agreement.
5. Following the execution of this Lender Assignment, it will be
delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. Upon such acceptance and recording and receipt of any
consent of the Borrower required pursuant to subsection 10.07(a), as of the
Effective Date, the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Lender Assignment, have the rights and
obligations of a Lender thereunder and under the Notes and the Security
Documents and (i) the Assignor shall, to the extent provided in this Lender
Assignment, relinquish its rights and be released from its obligations under
the Credit Agreement, the Notes and the Security Documents.
6. Upon such acceptance, recording and consent, from and after the
Effective Date, (i) the Administrative Agent shall make all payments under
the Credit Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly
between themselves.
7. This Lender Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
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
Lender Assignment
Dated , 19
Section 1.
(a) Total Credit Agreement Commitments: $________
(b) Percentage Interest:(1) _________%
(c) Amount of Assigned Share: $________
Section 2.
Assignee's Commitment: $________
Section 3.
Effective Date:(2) __________, 19__
[NAME OF ASSIGNOR]
By /s/
Title:
[NAME OF ASSIGNEE]
By /s/
Title:
(1)Specify percentage to no more than 8 decimal points.
(2)See Section 10.07(a). Such date shall be at least 5 Business Days after
the execution of this Lender Assignment.
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this day
of ,
CHEMICAL BANK,
as Administrative Agent
By /s/
Title:
Schedule 2
to
Lender Assignment
Dated , 19
Administrative Questionnaire
Public Service Company of New Hampshire
$125,000,000 Revolving Credit Facility
NOTE TO PARTICIPANTS: PLEASE FORWARD THIS COMPLETED FORM AS SOON AS
POSSIBLE TO ______________, STRUCTURED
FINANCE, SYNDICATIONS & PRIVATE PLACEMENTS, CHEMICAL
BANK, VIA RAPIFAX TO (212)
________
PLEASE TYPE ALL INFORMATION
Administrative Agent: Chemical Bank
140 East 45th Street
New York, New York 10017
Operational
Contact
Telecopier:
Contact:
Telecopier:
Telex: Answerback:
CHEMICAL BANK'S
wire instructions: [CHEMICAL BANK, 52 Broadway, NY
ABA #: 021000128
Loan Service Dept., 3rd Fl.
Corporate Agency A/C #400-399903
Attn: _______________
Ref: Public Service Company of New Hampshire]
Full Legal Name of your Bank:
Exact name of signing officer:
Title of signing officer:
Business address for delivery of
execution copies of credit
agreement (Please do not use
P.O. Box address; hand deliveries
cannot be made):
Signing officer's phone no.:
Alternate officer contact:
Alternate officer's phone no.:
Public Service Company of New Hampshire
PRIMARY CONTACT INFORMATION
These contacts are for critical notification (drawdowns, repayments, rate
setting, etc.)
Bank Name:
Address:
Primary Contact:
Title and Department:
Phone Number:
Primary Telecopier:
Alternate Telecopier:
Primary Telex/answerback:
********** Alternate Contact Information **********
Alternate Contact:
Title and Department:
Phone Number:
Primary Telecopier:
Alternate Telecopier:
Primary Telex/answerback:
General Operational Information
Wire instructions to your bank: Bank Name:
Dept.:
ABA #:
A/C #:
Attn:
Ref:
Telex Information: Contact Name(s)
Number
Answerback
If any changes are made to the above information please notify by rapifax to
____________ (212)________ and _____________ (212) _________.
Public Service Company of New Hampshire
PLEASE COMPLETE THE FOLLOWING INFORMATION
FOR COMPETITIVE AUCTIONS ONLY
Facility Agent: Chemical Bank
140 East 45th Street
New York, New York 10017
Telex: NY: Answerback:
Telecopier:
Contacts: Syndications/Sales Support
Syndications
Primary Contact
Competitive Auctions
Bank Name:
Address:
Primary Contact:
Title:
Department:
Telephone Number:
Telex Number and Answerback:
Telecopier Number:
Alternate Contact
Competitive Auctions
Alternate Contact:
Title:
Department:
Telephone Number:
Telex Number and Answerback:
Telecopier Number:
EXECUTION COPY
U.S. $100,000,000
364-DAY
REVOLVING CREDIT AGREEMENT
Dated as of April 1, 1996
Among
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
CHEMICAL BANK
as Administrative Agent
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS 1
1.01. Certain Defined Terms 1
1.02. Computation of Time Periods 18
1.03. Accounting Terms 19
1.04. Computations of Outstandings 19
ARTICLE II
COMMITMENTS 19
2.01. The Commitments 19
2.02. Fees 19
2.03. Reduction of the Commitments 20
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES 20
3.01. Contract Advances 20
3.02. Terms Relating to the Making and of Contract Advances 20
3.03. (a) Competitive Advances 21
3.04. Making of Advances 26
3.05. Repayment of Advances 27
3.06. Interest 27
ARTICLE IV
PAYMENTS 29
4.01. Payments and Computations 29
4.02. Prepayments 30
4.03. Yield Protection 30
4.04. Sharing of Payments, Etc 34
4.05. Taxes 35
ARTICLE V
CONDITIONS PRECEDENT 37
5.01. Conditions Precedent to Effectiveness 37
5.02. Conditions Precedent to Certain Contract Advances and
all Competitive Advances 40
5.03. Conditions Precedent to Other Contract Advances 41
5.04. Reliance on Certificates 42
ARTICLE VI
REPRESENTATIONS AND WARRANTIES 42
6.01. Representations and Warranties of the 42
ARTICLE VII
COVENANTS OF THE BORROWER 45
7.01. Affirmative Covenants 45
7.02. Negative Covenants 48
7.03. Reporting Obligations 51
ARTICLE VIII
DEFAULTS 55
8.01. Events of Default 55
8.02. Remedies Upon Events of Default 58
ARTICLE IX
THE ADMINISTRATIVE AGENT 59
9.01. Authorization and Action 59
9.02. Administrative Agent's Reliance, 59
9.03. Chemical and Affiliates 60
9.04. Lender Credit Decision 60
9.05. Indemnification 60
9.06. Successor Administratient 61
ARTICLE X
MISCELLANEOUS 61
10.01. Amendments, Etc 61
10.02. Notices, Etc 62
10.03. No Waiver of Remedies 62
10.04. Costs, Expenses and Indemnification 63
10.05. Right of Set-off 64
10.06. Binding Effect 64
10.07. Assignments and Participation 64
10.08. Confidentiality 68
10.09. Certain Authorizations and Consent 68
10.10. Waiver of Jury Trial 69
10.11. Governing Law 69
10.12. Relation of the Parties; No Beneficiary 69
10.13. Execution in Counterparts 70
SCHEDULE
Schedule I - Applicable Lending Offices
EXHIBITS
Exhibit 1.01A - Form of Competitive Note
Exhibit 1.01B - Form of Contract Note
Exhibit 1.01C - Form of Collateral Agency Agreement
Exhibit 1.01D - Form of PSNH Mortgage Amendment
Exhibit 1.01E - Form of PSNH Mortgage Assignment
Exhibit 3.01A - Form of Notice of Contract Borrowing
Exhibit 3.03A-1 - Form of Competitive Bid Request
(Eurodollar Competitive Advance)
Exhibit 3.03A-2 - Form of Confirmation of Competitive Borrowing
(Fixed Rate Competitive Advance)
Exhibit 3.03B - Form of Notice of Competitive Bid Request
(Eurodollar Competitive Advance)
Exhibit 3.03C-1 - Form of Competitive Bid
(Eurodollar Competitive Advance)
Exhibit 3.03C-2 - Form of Confirmation of Competitive Bid
(Fixed Rate Competitive Advance)
Exhibit 3.03D - Form of Competitive Bid Letter
Exhibit 5.01A - Form of Opinion of Jeffrey C. Miller, Assistant
General Counsel to Northeast Utilities
Service Company
Exhibit 5.01B - Form of Opinion of Robert A. Bersak, Assistant
General Counsel to the Borrower
Exhibit 5.01C - Form of Opinion of Sulloway & Hollis,
special New Hampshire counsel to
the Borrower
Exhibit 5.01D - Form of Opinion of Drummond Woodsum
& MacMahon, special Maine
counsel to the Borrower
Exhibit 5.01E - Form of Opinion of Zuccaro, Willis & Bent,
special Vermont counsel to the Borrower
Exhibit 5.01F - Form of Opinion of King & Spalding,
counsel to the Administrative Agent
Exhibit 10.07 - Form of Lender Assignment
364-DAY
REVOLVING CREDIT AGREEMENT
Dated as of April 1, 1996
This 364-DAY REVOLVING CREDIT AGREEMENT (this "Agreement") is made by
and among:
(i) Public Service Company of New Hampshire, a corporation duly
organized and validly existing under the laws of the State of New
Hampshire (the "Borrower"),
(ii) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter defined) from
time to time party hereto, and
(iii) Chemical Bank ("Chemical"), as Administrative Agent for the
Lenders hereunder.
PRELIMINARY STATEMENT
The Borrower, certain lenders parties thereto and Chemical as
administrative agent thereunder, previously entered into the Existing
Revolving Credit Agreement (as hereinafter defined). The Borrower, the Banks
and the Administrative Agent now desire to amend and restate the Existing
Revolving Credit Agreement by entering into the Other Loan Documents (as
herein defined) and, as well, to enter into this separate Agreement, which
separately supplements and adds to the credit facility formerly available
under the Existing Revolving Credit Agreement. Now therefore, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Advance" means a Contract Advance or a Competitive Advance (each
of which shall be a "Class" of Advance).
"Administrative Agent" means Chemical or any successor thereto as
provided herein.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct
or indirect common control with such Person. A Person shall be deemed
to control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement for Capacity Transfer" means the Agreement for Capacity
Transfer, dated as of December 1, 1989, between The Connecticut Light
and Power Company and the Borrower as amended by the First Amendment to
Agreement for Capacity Transfer, dated as of May 1, 1992, which provides
for capacity transfers from the Borrower to The Connecticut Light and
Power Company.
"Alternate Base Rate" means, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/8 of 1%) equal to the greater of:
(a) the Prime Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1% per annum.
For purposes hereof, the term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by Chemical as
its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is
publicly announced. If the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime
Rate or the Federal Funds Rate, respectively.
"Applicable Facility Fee Rate" means, for any day, the percentage
per annum set forth below in effect on such day, determined on the basis
of the Applicable Rating Level:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Applicability 0.20% 0.20% 0.20% 0.20%
Facility Fee Rate
Any change in the Applicable Facility Fee Rate caused by a change in the
Applicable Rating Level shall take effect at the time such change in the
Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance, or (B) such Lender's "Domestic Lending Office" in the
case of a Base Rate Advance, in each case as specified opposite
such Lender's name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender; or
(ii) in the case of any Competitive Advance, the office or
affiliate of such Lender identified as the Applicable Lending
Office in such Lender's Competitive Bid tendered pursuant to
Section 3.03 hereof; or
(iii) in each case, such other office or affiliate of such
Lender as such Lender may from time to time specify in writing to
the Borrower and the Administrative Agent.
"Applicable Margin" means, for any day for any outstanding
Contract Advance, the percentage per annum set forth below in
effect on such day, determined on the basis of the Applicable
Rating Level:
Type of Rating Rating Rating Rating
Advance Level I Level II Level III Level IV
Eurodollar 0.80% 0.80% 0.80% 0.80%
Rate
Base Rate 0.00% 0.00% 0.00% 0.00%
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means:
(i) in the case of each Eurodollar Rate Advance comprising
part of the same Borrowing, a rate per annum during each Interest
Period equal at all times to the sum of the Eurodollar Rate for
such Interest Period plus the Applicable Margin in effect from time
to time during such Interest Period;
(ii) in the case of each Base Rate Advance, a rate per annum
equal at all times to the sum of the Alternate Base Rate in effect
from time to time plus the Applicable Margin in effect from time to
time;
(iii) in the case of each Eurodollar Competitive Advance,
a rate per annum during the Interest Period therefor, equal at all
times to the sum of the Eurodollar Rate for such Interest Period
plus or minus, as the case may be, the Competitive Margin in effect
during such Interest Period; and
(iv) in the case of each Fixed Rate Competitive Advance, at a
rate per annum during the Interest Period therefor, equal at all
times to the rate specified by such Lender in its Competitive Bid
and accepted by the Borrower for such Competitive Advance in
accordance with Section 3.03(b)(iv) hereof.
"Applicable Rating Level" shall be determined at any time and from
time to time on the basis of the long-term ratings of S&P and Moody's
applicable at such time to the Borrower's First Mortgage Bonds not
entitled to external credit support (or other senior secured debt
securities not entitled to external credit support if no First Mortgage
Bonds are then outstanding) in accordance with the following:
Rating Rating Rating Rating
Level I Level II Level III Level IV
BBB- or higher BB+ and Ba1 BB and Ba2 BB- or Ba3 or
and Baa3 or below (all
higher other cases)
In the event of a split rating, the lower of the two ratings shall
control. The Applicable Rating Level shall be redetermined as and when
any change in the ratings used in the determination thereof shall be
announced by S&P or Moody's, as the case may be.
"Available Commitment" means, for each Lender, the unused portion
of such Lender's Commitment (which shall be equal to the excess, if any,
of such Lender's Commitment over such Lender's Contract Advances
outstanding), less such Lender's Percentage of the aggregate amount of
Competitive Advances outstanding. "Available Commitments" shall refer
to the aggregate of the Lenders' Available Commitments hereunder.
"Base Rate Advance" means a Contract Advance in respect of which
the Borrower has selected in accordance with Article III hereof, or this
Agreement provides for, interest to be computed on the basis of the
Alternate Base Rate.
"Borrowing" means a Contract Borrowing or Competitive Borrowing
(each of which shall be a "Class" of Borrowing).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances or Eurodollar
Competitive Advances, on which dealings are carried on in the London
interbank market.
"CSI" means Chemical Securities Inc.
"Class" has the meaning assigned to such term (i) in the definition
of "Advance" when used in such context and (ii) in the definition of
"Borrowing" when used in such context.
"Closing" means the fulfilment of each of the conditions precedent
enumerated in Section 5.01 hereof to the satisfaction of the Lenders,
the Administrative Agent and the Borrower. All transactions
contemplated by the Closing shall take place on or prior to May 15,
1996, at the offices of King & Spalding, 120 West 45th Street, New York,
New York 10036, at 10:00 a.m. (New York City time), or such other place
and time as the parties hereto may mutually agree (the "Closing Date").
"Collateral" means all of the collateral in which liens, mortgages
or security interests are purported to be granted by any or all of the
Security Documents.
"Collateral Agency Agreement" means an Amended and Restated
Collateral Agency Agreement in substantially the form of Exhibit 1.01C
hereto as the same may be amended, supplemented or otherwise modified
from time to time.
"Collateral Agent" means Chemical or any successor thereto as
provided in the Collateral Agency Agreement.
"Commitment" means, for each Lender, the aggregate amount set forth
opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into one or more Lender Assignments, set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders' Commitments
hereunder.
"Common Equity" means, at any date, an amount equal to the sum of
the aggregate of the par value of, or stated capital represented by, the
outstanding shares of common stock of the Borrower and the surplus,
paid-in, earned and other, if any, of the Borrower.
"Competitive Advance" means an advance by a Lender to the Borrower
as part of a Competitive Borrowing and refers to a Fixed Rate
Competitive Advance or a Eurodollar Competitive Advance (each of which
shall be a "Type" of Competitive Advance).
"Competitive Bid" means an offer by a Lender to make a Competitive
Advance under the competitive bidding procedure described in
Section 3.03(b).
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 3.03(b)(iv), (i) in the case of a Eurodollar
Competitive Advance, the Competitive Margin and (ii) in the case of a
Fixed Rate Competitive Advance, the fixed rate of interest offered by
such Lender making such Competitive Bid.
"Competitive Bid Letter" means a letter in the form of
Exhibit 3.03D hereto.
"Competitive Bid Request" means a request made by the Borrower
pursuant to Section 3.03(b)(i) in the form of Exhibit 3.03A-1 hereto.
"Competitive Borrowing" means a borrowing consisting of one or more
Competitive Advances of the same Type and Interest Period made on the
same day by each of the Lenders whose Competitive Bid to make one or
more Competitive Advances as part of such Borrowing has been accepted by
the Borrower under the competitive bidding procedure described in
Section 3.03(b). A Competitive Borrowing may be referred to herein as
being a "Type" of Competitive Borrowing, corresponding to the Type of
Competitive Advances comprising such Borrowing.
"Competitive Margin" means, with respect to any Eurodollar
Competitive Advance, the percentage per annum (expressed in the form of
a decimal to no more than four decimal places) to be added to or
subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Advance, as specified in the Competitive Bid
relating to such Advance.
"Competitive Note" means a promissory note of the Borrower payable
to the order of a Lender, in substantially the form of Exhibit 1.01A
hereto, evidencing the indebtedness of the Borrower to such Lender from
time to time resulting from Competitive Advances made by such Lender.
"Confidential Information" has the meaning assigned to that term in
Section 10.08.
"Contract Advance" means an advance by a Lender to the Borrower
pursuant to Section 3.01 hereof and refers to a Eurodollar Rate Advance
or a Base Rate Advance (each of which shall be a "Type" of Contract
Advance). For purposes of this Agreement, all Contract Advances of a
Lender (or portions thereof) of the same Type and Interest Period made
on the same day shall be deemed to be a single Advance by such Lender
until repaid.
"Contract Borrowing" means a borrowing consisting of Contract
Advances of the same Type and Interest Period made on the same day by
the Lenders, ratably in accordance with their respective Commitments. A
Contract Borrowing may be referred to herein as being a "Type" of
Contract Borrowing, corresponding to the Type of Contract Advances
comprising such Borrowing. For purposes of this Agreement, all Contract
Advances of the same Type and Interest Period made on the same day shall
be deemed a single Contract Borrowing hereunder until repaid.
"Contract Note" means a promissory note of the Borrower payable to
the order of a Lender, in substantially the form of Exhibit 1.01B
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Contract Advances made by such Lender.
"Debt" means, for any Person, without duplication, (i) indebtedness
of such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations of such Person to pay the deferred purchase price of
property or services, (iv) obligations of such Person as lessee under
leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases (but
excluding the Unit Contract), (v) obligations (contingent or otherwise)
of such Person under reimbursement or similar agreements with respect to
the issuance of letters of credit, (vi) net obligations (contingent or
otherwise) of such Person under interest rate swap, "cap", "collar" or
other hedging agreements, (vii) obligations of such person to pay rent
or other amounts under leases entered into in connection with sale and
leaseback transactions involving assets of such Person being sold in
connection therewith, (viii) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (vii), above, and (ix) liabilities in
respect of unfunded vested benefits under ERISA Plans.
"Debt Limit" means the limitation on the incurrence of short-term
debt applicable to the Borrower in effect from time to time either in
accordance with applicable law or a waiver thereof granted by competent
governmental authority, including without limitation, the New Hampshire
Public Utilities Commission.
"Disclosure Documents" means the Information Memorandum, the
Borrower's 1995 Annual Report, the Borrower's Annual Report on Form 10-K
for the year ended December 31, 1995, and any Current Report on Form 8-K
of the Borrower filed by the Borrower with the Securities and Exchange
Commission after January 31, 1996 and furnished to the Banks prior to
the execution and delivery of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a "commonly controlled
entity" of the Borrower within the meaning of the regulations under
Section 414 of the Internal Revenue Code of 1986, as amended from time
to time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject to
Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of the Borrower or any
ERISA Affiliate and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued thereunder
(other than a Reportable Event not subject to the provision for 30-day
notice to the PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of the Borrower
or any of its ERISA Affiliates from an ERISA Plan or an ERISA
Multiemployer Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing
of a notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan or an ERISA
Multiemployer Plan under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate an ERISA Plan or an ERISA Multiemployer Plan
by the PBGC, or (v) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or ERISA
Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Competitive Advance" means a Competitive Advance in
respect of which the Borrower has selected in accordance with
Section 3.03 hereof, and this Agreement provides, interest to be
computed on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance or Eurodollar Competitive Advance comprising
part of the same Borrowing, an interest rate per annum equal to the
average (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such average is not such a multiple) of the rates per annum at
which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period in an amount of $1,000,000
and for a period equal to such Interest Period. The Eurodollar Rate for
the Interest Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Sections 3.06(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of
which the Borrower has selected in accordance with Article III hereof,
and this Agreement provides for, interest to be computed on the basis of
the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender for each Interest
Period for each Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under Regulation D or other regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement, without benefit of or credit for
proration, exemptions or offsets) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Collateral Agency Agreement" means the Collateral Agency
Agreement, dated as of May 1, 1991, among the Borrower, Bankers Trust
Company, as Collateral Agent, Citibank, N.A., as Term Agent, Chemical,
as Revolving Agent, and certain other holders of secured claims referred
to herein.
"Existing Revolving Credit Agreement" means the Revolving Credit
Agreement, dated as of May 1, 1991, among the Borrower, Bankers Trust
Company, Chemical and Citibank, N.A. as Co-Agents and Chemical, as
Administrative Agent, and the lenders from time to time party thereto,
as amended by the First Amendment to the Revolving Credit Agreement,
dated as of May 11, 1994, among the parties to the Revolving Credit
Agreement.
"Facility" means the facility made available to the Borrower by
each of the Lenders under Sections 2.01(a), 3.01 and 3.03 to request,
prepay and repay Advances in connection with each Lender's Commitment.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the Fee Letter, dated as of February 15, 1996,
among the Borrower, NUSCO, Chemical and CSI.
"First Mortgage Bond Amount" means $950,000,000.
"First Mortgage Bonds" means first mortgage bonds in the maximum
aggregate principal amount of up to the First Mortgage Bond Amount
issued or to be issued by the Borrower and secured, directly or
indirectly, collectively or severally, by one or more first-priority
liens on all or part of the Indenture Assets pursuant to the First
Mortgage Indenture or another indenture in form and substance
satisfactory to the Majority Lenders. For purposes hereof, all or part
of the First Mortgage Bonds may be issued as collateral for pollution
control revenue bonds or industrial revenue bonds, whether taxable or
tax exempt, issued by the Borrower or by a governmental authority at the
Borrower's request (any such pollution control revenue bonds or
industrial revenue bonds being included, without duplication as to the
principal amount of First Mortgage Bonds securing the same, within the
definition hereunder of "First Mortgage Bonds").
"First Mortgage Indenture" means the General and Refunding Mortgage
Indenture, between the Borrower and New England Merchants National Bank,
as trustee and to which First Fidelity Bank, National Association, New
Jersey, is successor trustee, dated as of August 15, 1978, as amended
and supplemented through the date hereof, as the same may hereafter be
amended, supplemented or modified from time to time.
"Fixed Rate Competitive Advance" means a Competitive Advance in
respect of which the Borrower has selected in accordance with
Section 3.03(b)(iv) hereof, and this Agreement provides, interest to be
computed on the basis of a fixed percentage rate per annum (expressed in
the form of a decimal to no more than four decimal places) specified by
the Lender making such Advance in its Competitive Bid.
"Governmental Approval" means any authorization, consent, approval,
license, permit, certificate, exemption of, or filing or registration
with, any governmental authority or other legal or regulatory body,
required in connection with any of (i) the execution, delivery or
performance of the Rate Agreement, any Loan Document or any Significant
Contract, (ii) the grant and perfection of any security interest, lien
or mortgage contemplated by the Security Documents, or (iii) the nature
of the Borrower's business as conducted or the nature of the property
owned or leased by it. For purposes of this Agreement, Chapter 362-C of
the Revised Statutes Annotated of New Hampshire, as in effect on the
date hereof, shall be deemed to be a Governmental Approval.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United
States of America or of the State or locality in which the same is
located having or exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Indenture Assets" means fixed assets of the Borrower (including
related Governmental Approvals and regulatory assets, but excluding the
Seabrook Interests) which from time to time are subject to the first-
priority lien under the First Mortgage Indenture.
"Information Memorandum" means the Confidential Information
Memorandum, dated February 1996, regarding the Borrower and NU, as
distributed to the Administrative Agent and the Lenders, including all
schedules and attachments thereto.
"Interest Expense" means, for any period, the aggregate amount of
any interest on Debt (including long-term and short-term Debt).
"Interest Period" has the meaning assigned to that term in
Section 3.06(a) hereof.
"Lender Assignment" means an assignment and agreement entered into
by a Lender and an assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the signature
pages hereof, and each assignee that shall become a party hereto
pursuant to Section 10.07.
"Lien" has the meaning assigned to that term in Section 7.02(a)
hereof.
"Loan Documents" means this Agreement, the Notes and the Security
Documents (as each may be amended, supplemented or otherwise modified
from time to time).
"Major Electric Generating Plants" means the following generating
stations of the Borrower: the Merrimack generating station located in
Bow, New Hampshire; the Newington generating station located in
Newington, New Hampshire; the Schiller generating station located in
Portsmouth, New Hampshire; the White Lake combustion turbine located in
Tamworth, New Hampshire; the Millstone Unit No. 3 generating station
located in Waterford, Connecticut, and the Wyman Unit No. 4 generating
station located in Yarmouth, Maine.
"Majority Lenders" means on any date of determination, Lenders who,
collectively, on such date (i) hold at least 66-2/3% of the then
aggregate unpaid principal amount of the Advances owing to the Lenders
and (ii) have Percentages in the aggregate of at least 66-2/3%.
Determination of those Lenders satisfying the criteria specified above
for action by the Majority Lenders shall be made by the Administrative
Agent and shall be conclusive and binding on all parties absent manifest
error.
"Merger" means (i) the merger on June 5, 1992 of NU Acquisition
Corp., a wholly owned subsidiary of NU, with and into the Borrower and
(ii) the transfer on the same date by the Borrower, as so merged, to
NAEC of the Seabrook Interests in accordance with the Rate Agreement.
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"NAEC" means North Atlantic Energy Corporation, a corporation
wholly owned by NU which acquired the Seabrook Interests from the
Borrower on June 5, 1992.
"Note" means a Contract Note or a Competitive Note, as each may be
amended, supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that
term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated voluntary
business association organized under the laws of the Commonwealth of
Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation and a wholly owned subsidiary of NU.
"Operating Income" means, for any period, the Borrower's operating
income for such period, adjusted as follows:
(i) increased by the amount of income taxes (including New
Hampshire Business Profits Tax and other comparable taxes) paid by
the Borrower during such period, if and to the extent deducted in
the computation of the Borrower's operating income for such period;
and
(ii) increased by the amount of any depreciation deducted by
the Borrower during such period; and
(iii) increased by the amount of any amortization of
acquisition adjustment deducted by the Borrower during such period;
and
(iv) decreased by the amount of any capital expenditures paid
by the Borrower during such period.
"Other Loan Documents" means the Amended and Restated Revolving
Credit Agreement, dated as of April 1, 1996 among the Borrower, the
lenders from time to time parties thereto and Chemical, as
administrative agent thereunder, together with the other "Loan
Documents" referred to therein.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such day by the total of the Commitments on such day, and
multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PSNH Mortgage" means the Mortgage, Assignment, Security Agreement
and Financing Statement, dated as of May 1, 1991, by the Borrower to
Bankers Trust Company, as assigned pursuant to the PSNH Mortgage
Assignment, and as amended by PSNH Mortgage Amendment, as the same may
be further amended, supplemented or otherwise modified from time to
time.
"PSNH Mortgage Amendment" means the First Amendment to the PSNH
Mortgage, dated on or about the Closing Date, by the Borrower and the
Collateral Agent, in substantially the form of Exhibit 1.01D hereto.
"PSNH Mortgage Assignment" means the Replacement of Collateral
Agent, together with Assignment by Mortgagee, Assignee and Secured
Party, dated on or about the Closing Date, among Bankers Trust Company,
as former Collateral Agent, Chemical, as successor Collateral Agent, and
the Borrower.
"Rate Agreement" means the Agreement dated as of November 22, 1989,
as amended by the First Amendment to Rate Agreement dated as of December
5, 1989, the Second Amendment to Rate Agreement dated as of December 12,
1989, the Third Amendment to Rate Agreement dated as of December 28,
1993, the Fourth Amendment to Rate Agreement dated as of September 21,
1994 and the Fifth Amendment to Rate Agreement dated as of September 9,
1994, among NUSCO, the Governor and Attorney General of the State of New
Hampshire and adopted by the Borrower as of July 10, 1990 (excluding the
Unit Contract appended as Exhibit A thereto subsequent to the
effectiveness of such contract).
"Recipient" has the meaning assigned to that term in Section 10.08
hereof.
"Reference Banks" means Chemical, Citibank, N.A. and Bank of
America National Trust and Savings Association.
"Register" has the meaning specified in Section 10.07(c).
"S&P" means Standard and Poor's Ratings Group or any successor
thereto.
"Seabrook" means the nuclear-fueled, steam-electric generating
plant at a site located in Seabrook, New Hampshire, and the real
property interests and other fixed assets of such plant.
"Seabrook Interests" means all right, title and interest of the
Borrower, prior to the Merger, in and to the fixed assets of Seabrook,
nuclear fuel relating to Seabrook and Governmental Approvals relating
thereto, including the undeveloped land adjacent to Seabrook and
described as the "Adjacent Property" in Schedule D to the PSNH Mortgage.
"Secured Party" has the meaning assigned to that term in the
Collateral Agency Agreement.
"Security Documents" means the PSNH Mortgage and the Collateral
Agency Agreement (as the same may be amended, supplemented or otherwise
modified from time to time).
"Series D Reimbursement Agreement" means (a) the Second Series D
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
among the Borrower, Barclays Bank PLC, New York Branch, and the
Participating Banks named therein relating to: (i) the Industrial
Development Authority of the State of New Hampshire Pollution Control
Revenue Bonds (Public Service Company of New Hampshire Project - 1991
Taxable Series D), (ii) Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds (Public Service
Company of New Hampshire Project - 1992 Tax Exempt Series D) and (iii)
any other series of "Tax-Exempt Refunding Bonds" issued from time to
time in respect of the foregoing, as such agreement may from time to
time be amended, modified or supplemented, and (b) any similar agreement
entered into in respect of letters of credit or other credit enhancement
facilities issued in support of any of the foregoing.
"Series E Reimbursement Agreement" means (a) the Second Series E
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
among the Borrower, Swiss Bank Corporation, New York Branch, and the
Participating Banks named therein relating to: (i) 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), (ii) 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) and (iii)
any other series of "Tax-Exempt Refunding Bonds" issued from time to
time in respect of the foregoing, as such agreement may from time to
time be amended, modified or supplemented, and (b) any similar agreement
entered into in respect of letters of credit or other credit enhancement
facilities issued in support of any of the foregoing.
"Sharing Agreement" means the Sharing Agreement, dated as of June
1, 1992, among The Connecticut Light and Power Company, Western
Massachusetts Electric Company, Holyoke Water Power Company, Holyoke
Power and Electric Company, the Borrower and NUSCO.
"Significant Contracts" means the following contracts, in each case
as the same may be amended, modified or supplemented from time to time
in accordance with this Agreement:
(i) the Agreement for Capacity Transfer;
(ii) the Sharing Agreement;
(iii) the Tax Allocation Agreement; and
(iv) the Unit Contract.
"Tax Allocation Agreement" means the Tax Allocation Agreement dated
as of January 1, 1990 among NU and the members of the consolidated group
of which NU is the common parent, including, without limitation, the
Borrower.
"Termination Date" means the earlier to occur of (i) April 29,
1997, (ii) May 15, 1996, if the Closing Date shall not have occurred on
or prior to such date, (iii) the date of termination or reduction in
whole of the Commitments pursuant to Section 2.03 or 8.02 or (iv) the
date of acceleration of all amounts payable hereunder and under the
Notes pursuant to Section 8.02.
"Total Capitalization" means, as of any day, the aggregate of all
amounts that would, in accordance with generally accepted accounting
principles applied on a basis consistent with the standards referred to
in Section 1.03 hereof, appear on the balance sheet of the Borrower as
of such day as the sum of (i) the principal amount of all long-term Debt
of the Borrower on such day, (ii) the par value of, or stated capital
represented by, the outstanding shares of all classes of common and
preferred shares of the Borrower on such day, (iii) the surplus of the
Borrower, paid-in, earned and other, if any, on such day and (iv) the
unpaid principal amount of all short-term Debt of the Borrower on such
day.
"Type" has the meaning assigned to such term (i) in the definition
of "Contract Advance" when used in the such context and (i) in the
definition of "Contract Borrowing" when used in such context.
"Unit Contract" means the Unit Contract, dated as of June 5, 1992,
between the Borrower and NAEC.
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
SECTION 1.02 Computation of Time Periods. In the computation of
periods of time under this Agreement any period of a specified number of days
or months shall be computed by including the first day or month occurring
during such period and excluding the last such day or month. In the case of
a period of time "from" a specified date "to" or "until" a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles applied on a basis consistent with the application
employed in the preparation of the financial projections referred to in
Section 5.01 hereof.
SECTION 1.04 Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount outstanding on any date under this
Agreement, such reference shall refer to the sum of the aggregate principal
amount of all Advances outstanding on such date in each case after giving
effect to all Advances to be made on such date and the application of the
proceeds thereof.
ARTICLE II
COMMITMENTS
SECTION 2.01 The Commitments. (a) Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the
Borrower from time to time on any Business Day during the period from the
Closing Date until the Termination Date in an aggregate outstanding amount
not to exceed on any day such Lender's Available Commitment (after giving
effect to all Advances to be made on such day and the application of the
proceeds thereof). Within the limits of each Lender's Available Commitment,
the Borrower may request Advances hereunder, repay or prepay Advances and
utilize the resulting increase in the Available Commitments for further
Advances in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive
any Advance under subsection (a) that would cause the total principal amount
advanced pursuant to thereto to exceed the Available Commitment. In no event
shall the Borrower be entitled to request or receive any Advance that would
cause the total principal amount outstanding hereunder to exceed the
Commitments.
(c) In addition to each Lender's Commitment under subsection (a) above,
but subject nevertheless to the provisions of subsection (b) above, the
Borrower may request Competitive Advances to be made at the discretion of
each Lender, in accordance with Section 3.03 hereof.
SECTION 2.02 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee on the
amount of such Lender's Commitment (whether used or unused) at the Applicable
Facility Fee Rate, effective as of April 15, 1996 (as if the Commitments were
effective as of such date), in the case of each Bank, and from the effective
date specified in the Lender Assignment pursuant to which it became a Lender,
in the case of each other Lender, until the Termination Date, payable
quarterly in arrears on the last day of each March, June, September and
December, commencing the first such date following the Closing Date, with
final payment payable on the Termination Date.
(b) The Borrower agrees to pay to the Administrative Agent and to CSI
the fees specified in the Fee Letter, together with such other fees as may be
separately agreed to between the Borrower and the Administrative Agent.
SECTION 2.03 Reduction of the Commitments. (a) The Borrower may, upon
at least five Business Days' notice to the Administrative Agent, terminate in
whole or reduce ratably in part the Available Commitments of the respective
Lenders; provided (i) that any such partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (ii) that in no event shall the aggregate Commitments be
reduced hereunder to an amount less than the principal amount outstanding
hereunder and (iii) that in no event shall the Commitments be reduced to an
amount less than the aggregate principal amount of Advances then outstanding.
(b) If the Closing Date does not occur on or prior to May 15, 1996, the
Commitment of each Lender shall automatically terminate.
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
SECTION 3.01 Contract Advances. Each Contract Borrowing shall consist
of Contract Advances of the same Type and Interest Period made on the same
Business Day by the Lenders ratably according to their respective
Commitments. The Borrower may request that more than one Borrowing be made
on the same day. Each Contract Borrowing shall be made on notice, given not
later than 11:00 a.m. (New York City time) (i) in the case of Eurodollar Rate
Advances, on the third Business Day prior to the date of the proposed
Borrowing and (ii) in the case of Base Rate Advances, on the day of the
proposed Borrowing, by the Borrower to the Administrative Agent, who shall
give to each Lender prompt notice thereof on the same day such notice is
received. Each such notice of a Contract Borrowing (a "Notice of Contract
Borrowing") shall be in substantially the form of Exhibit 3.01A hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing and (iii) Interest Period for each such
Advance. Each proposed Borrowing shall be subject to the provisions of
Sections 3.02, 4.03 and Article V hereof.
SECTION 3.02 Terms Relating to the Making and of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than ten different Contract Borrowings
be outstanding hereunder;
(ii) each Contract Borrowing hereunder shall be in an aggregate
principal amount of not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, or such lesser amount as shall be equal to
the total amount of the Available Commitments for Contract Advances on
such date after giving effect to all other Contract Borrowings to be
made on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate principal
amount of not less than $10,000,000.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
SECTION 3.03 (a) Competitive Advances. Each Competitive Borrowing
shall consist of Competitive Advances of the same Type and Interest Period
made by the Lenders in accordance with this Section 3.03 and shall be in a
minimum aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, except as otherwise provided pursuant to
Section 3.03(b)(iv) hereof. Competitive Advances shall be made in the
amounts accepted by the Borrower in accordance with Section 3.03(b)(iv).
Each Competitive Advance, regardless of which Lender makes such Advance, will
reduce the Available Commitments of all Lenders pro rata as provided in the
definition of "Available Commitments" in Section 1.01 hereof. Promptly after
each Competitive Borrowing, the Administrative Agent will notify each Lender
of the amount of the Competitive Borrowing, the amount by which such Lender's
Available Commitment has been reduced, the date of the Competitive Borrowing
and the Interest Period with respect thereto.
(b) Competitive Bid Procedures.
(i) In order to request Competitive Bids, (A) in the case of any
request for Eurodollar Competitive Advances, the Borrower shall hand
deliver, telex or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit 3.03A-1 to be received by
the Administrative Agent not later than 10:00 a.m. (New York City time),
four Business Days prior to a proposed Competitive Borrowing to consist
of Eurodollar Competitive Advances and (B) in the case of any request
for Fixed Rate Competitive Advances, the Borrower shall give telephonic
notice of a proposed Competitive Borrowing to consist of Fixed Rate
Competitive Advances to the Administrative Agent not later than
9:15 a.m. (New York City time) on the day of a proposed Competitive
Borrowing (with written confirmation of the information given by
telephone substantially in the form of Exhibit 3.03A-2 delivered by
hand, telecopy or telex by the Borrower to the Administrative Agent no
later than 5:00 p.m. (New York City time) on the day of such Competitive
Borrowing.) No Contract Advances shall be requested in or made pursuant
to a Competitive Bid Request. A Competitive Bid Request which requests
Eurodollar Competitive Advances that does not conform substantially to
the form of Exhibit 3.03A-1 or 3.03A-2, as applicable, may be rejected
in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by telex or
telecopier. Such request shall refer to this Agreement and specify
(1) the Lenders selected by the Borrower to make a Competitive Bid
(which shall be no more than six Lenders), (2) the date of such
Competitive Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof (which shall not be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof), (3) the Interest
Period with respect thereto and (4) whether the Borrowing then being
requested is to consist of Eurodollar Competitive Advances or Fixed Rate
Competitive Advances. Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, the Administrative Agent
shall (A) in the case of a proposed Competitive Borrowing to consist of
Eurodollar Competitive Advances, invite by telex or telecopier (in the
form of Exhibit 3.03B hereto) the selected Lenders to bid to make
Competitive Advances pursuant to the Competitive Bid Request and (B) in
the case of a proposed Competitive Borrowing to consist of Fixed Rate
Competitive Advances, not later than 9:30 a.m. (New York City time) on
the day of such Competitive Bid Request, invite the selected Lenders by
telephone to make Competitive Advances pursuant to the Competitive Bid
Request, in accordance with the terms and conditions of this Agreement.
(ii) Each selected Lender may, in its sole discretion, make one or
more Competitive Bids to the Borrower which shall be responsive to the
Competitive Bid Request. Each Competitive Bid by such Lender must be
received by the Administrative Agent (A) in the case of a proposed
Competitive Borrowing to consist of Eurodollar Competitive Advances, by
telex or telecopier (in the form of Exhibit 3.03C-1 hereto) not later
than 9:30 a.m. (New York City time), three Business Days prior to a
proposed Competitive Borrowing and (B) in the case of a proposed
Competitive Borrowing to consist of Fixed Rate Competitive Advances not
later than 9:45 a.m. (New York City time) on the day of a proposed
Competitive Borrowing (subsequently confirmed in writing, not later than
11:00 a.m. (New York City time) substantially in the form of
Exhibit 3.03C-2 hereto). Multiple bids will be accepted by the
Administrative Agent. Competitive Bids, with respect to Eurodollar
Competitive Advances, that do not conform substantially to the format of
Exhibit 3.03C-1 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such non-conforming
bid of such rejection as soon as practicable. Each bid (a "Competitive
Bid") shall refer to this Agreement and specify (A) the principal amount
(which shall be a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may be up to the aggregate
amount of the proposed Competitive Borrowing regardless of the
Commitment of the Lender) of the Competitive Advance that the Lender is
willing to make to the Borrower and (B) the Competitive Bid Rate or
Rates at which the Lender is prepared to make the Competitive Advances.
If any selected Lender shall elect not to make a Competitive Bid, such
Lender shall so notify the Administrative Agent (A) in the case of a
proposed Competitive Borrowing to consist of Eurodollar Competitive
Advances, by telex or telecopier, not later than 9:30 a.m. (New York
City time), three Business Days prior to a proposed Competitive
Borrowing, and (B) in the case of a proposed Competitive Borrowing to
consist of Fixed Rate Competitive Advances, by telephone, telex or
telecopier not later than 9:45 a.m. (New York City time) on the day of a
proposed Competitive Borrowing; provided, however, that failure by any
Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Advance. A Competitive Bid submitted by a
Lender pursuant to this subsection (ii) shall be irrevocable.
(iii) The Administrative Agent shall (A) in the case of a
proposed Borrowing to consist of Eurodollar Competitive Advances,
promptly notify the Borrower by telex or telecopier and (B) in the case
of a proposed Borrowing to consist of Fixed Rate Competitive Advances,
notify the Borrower by telephone not later than 10:00 a.m. (New York
City time) on the day of such proposed Competitive Borrowing of the
Competitive Bids made, the Competitive Bid Rate, the principal amount of
each Competitive Bid and the identity of the Lender that made each
Competitive Bid.
(iv) The Borrower may, in its sole and absolute discretion, subject
only to the provisions of this subsection (iv), accept or reject any
Competitive Bid. The Borrower shall notify the Administrative Agent by
telephone whether and to what extent it has decided to accept or reject
any or all of the Competitive Bids (specifying each Lender selected by
it to make Competitive Advances, the principal amount of such Advances
and the Competitive Bid Rate) (A) in the case of a Borrowing to consist
of Eurodollar Competitive Advances, by not later than 10:15 a.m. (New
York City time) three Business Days before a proposed Competitive
Borrowing (promptly confirmed by a Competitive Bid Letter, hand
delivered, telexed or telecopied by the Borrower to the Administrative
Agent), and (B) in the case of a Borrowing to consist of Fixed Rate
Competitive Advances, not later than 10:15 a.m. (New York City time) on
the day of a proposed Competitive Borrowing (confirmed in writing
substantially in the form of Exhibit 3.03A-2, hand delivered, telexed or
telecopied to the Administrative Agent not later than 5:00 p.m. (New
York City time) on the day of the proposed Competitive Borrowing);
provided, however, that (1) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
subsection (iii) above, (2) the Borrower shall not accept a bid made at
a particular Competitive Bid Rate if the Borrower has decided to reject
a bid made at a lower Competitive Bid Rate, (3) the aggregate amount of
the Competitive Bids accepted by the Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (4) if the
Borrower shall determine to accept Competitive Bids made at a particular
Competitive Bid Rate but the aggregate amount of all Competitive Bids
made at such Competitive Bid Rate, when added to the aggregate amount of
all Competitive Bids at lower Competitive Bid Rates, would cause the
total amount of Competitive Bids to be accepted by the Borrower to
exceed the principal amount specified in the Competitive Bid Request,
then the Borrower shall accept all such Competitive Bids at such
Competitive Bid Rate in an aggregate amount reduced to eliminate such
excess, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made ratably in accordance with the
amount of each such Competitive Bid (subject to clause (5) below), and
(5) no Competitive Bid shall be accepted for a Competitive Advance
unless such Competitive Advance is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000 in excess thereof;
provided further, however, that if a Competitive Advance must be in an
amount of less than $5,000,000 because of the provisions of (4) above,
such Competitive Advance may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid
Rate pursuant to (4) above, the amounts shall be rounded to integral
multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. Notice given by the Borrower pursuant to this
subsection (iv) shall be irrevocable.
(v) The Administrative Agent shall notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what
principal amount and at what Competitive Bid Rate) (A) in the case of a
proposed Borrowing to consist of Eurodollar Competitive Advances,
promptly by telex or telecopier and (B) in the case of a proposed
Borrowing to consist of Fixed Rate Competitive Advances, by telephone
(such information to be confirmed in writing by the Administrative Agent
to the Lenders not later than 12:00 noon (New York City time) on such
day), not later than 10:30 a.m. (New York City time) on the day of the
Competitive Borrowing and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Advance in respect of which its bid has been accepted. The
Administrative Agent shall not be required to disclose to any Lender any
other information with respect to the Competitive Bids submitted, but
the Administrative Agent may, at the request of any Lender, and at the
instruction of the Borrower, provide to such Lender certain information
with respect to Competitive Bids made and accepted as deemed appropriate
by the Borrower.
(vi) Neither the Administrative Agent nor any Lender shall be
responsible to the Borrower for (A) a failure to fund a Competitive
Advance on the date such Advance is requested by the Borrower or (B) the
funding of such Advance at a Competitive Bid Rate or in an amount other
than that confirmed pursuant to subsections (iv) and (v) above due in
each case to delays in communications, miscommunications (including,
without limitation, any variance between telephonic bids or acceptances
and the written notice provided by the Administrative Agent to the
Lenders pursuant to Sections (v) above or the written confirmation
supplied by the Borrower pursuant to subsection (iv) above) and the like
among the Borrower, the Administrative Agent and the Lenders, and the
Borrower agrees to indemnify each Lender for all reasonable costs and
expenses incurred by it in accordance with the terms of Section 4.03(e)
hereof, as a result of any such delay, miscommunication or the like that
results in a failure to fund a Competitive Advance or the funding of a
Competitive Advance at a Competitive Bid Rate or in an amount other than
that set forth in the written notice provided by the Administrative
Agent to the Lenders pursuant to subsection (v) above or the written
confirmation supplied by the Borrower pursuant to subsection (iv) above.
(vii) If the Administrative Agent has elected to submit a
Competitive Bid in its capacity as Lender, such bid must be submitted
directly to the Borrower one quarter of an hour earlier than the latest
time at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to subsection (ii) above.
(viii) A Competitive Bid Request for Eurodollar Competitive
Advances shall not be made within five Business Days after the date of
any previous Competitive Bid Request for Eurodollar Competitive
Advances.
(ix) All notices required by this Section 3.03 must be made in
accordance with Section 10.02.
(x) To facilitate the administration of this Agreement and the
processing of Competitive Bids, each Lender has submitted, or will
submit upon becoming a Lender pursuant to Section 10.07 hereof, to the
Administrative Agent a completed administrative questionnaire in the
form specified by the Administrative Agent, and each Lender agrees to
promptly notify the Administrative Agent in writing of any change in the
information so provided.
SECTION 3.04 Making of Advances. (a) Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent
at the Administrative Agent's address referred to in Section 10.02, in same
day funds, such Lender's portion of such Borrowing. Contract Advances shall
be made by the Lenders pro rata and Competitive Advances shall be made by the
Lender or Lenders whose Competitive Bids therefor have been accepted pursuant
to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article V, the Administrative Agent will make such
funds available to the Borrower at the Administrative Agent's aforesaid
address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.04, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
any such Lender (a "non-performing Lender") shall not have so made such
ratable portion available to the Administrative Agent, the non-performing
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. Nothing herein shall in any way limit, waive or
otherwise reduce any claims that any party hereto may have against any non-
performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.05 Repayment of Advances. The Borrower shall repay the
principal amount of each Advance on the last day of the Interest Period for
such Advance, which last day shall be the maturity date for such Advance.
SECTION 3.06 Interest. (a) Interest Periods. The period commencing
on the date of each Advance and ending on the last day of the period selected
by the Borrower with respect to such Advance pursuant to the provisions of
this Section 3.06 is referred to herein as an Interest Period (the "Interest
Period"). The duration of each Interest Period shall be (i) in the case of
any Eurodollar Rate Advance or Eurodollar Competitive Advance, 1, 2, 3 or 6
months, (ii) in the case of any Base Rate Advance, 90 days following the date
on which such Advance was made and (iii) in the case of any Fixed Rate
Competitive Advance, any number of days, but no more than 270 days; provided,
however, that no Interest Period may be selected by the Borrower if such
Interest Period would end after the Termination Date.
(b) Interest Rates. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances and Eurodollar Competitive Advances.
If such Advance is a Eurodollar Rate Advance or Eurodollar Competitive
Advance, interest thereon shall be payable on the last day of the
Interest Period therefor and, if any such Interest Period has a duration
of more than three months, also on the day of the third month during
such Interest Period which corresponds to the first day of such Interest
Period (or, if any such month does not have a corresponding day, then on
the last day of such third month); provided that any amount of principal
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to (A) for the remaining term, if any, of the
Interest Period for such Advance, 2% per annum above the Applicable Rate
for such Advance for such Interest Period, and (B) thereafter, 2% per
annum above the Applicable Rate in effect from time to time for Base
Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly on the last day of each
March, June, September and December and on the date such Base Rate
Advance shall be paid in full; provided that any amount of principal
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per
annum equal at all times to 2% per annum above the Applicable Rate in
effect from time to time for Base Rate Advances.
(iii) Fixed Rate Competitive Advances. If such Advance is a
Fixed Rate Competitive Advance, interest thereon shall be payable on the
last day of the Interest Period therefor and, if any Interest Period has
a duration of more than 90 days, on each day which occurs during such
Interest Period every 90 days from the first day of such Interest
Period, provided that any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times
to (A) for the remaining, if any, of the original stated maturity of
such Advance, 2% per annum above the rate of interest applicable to such
Advance immediately prior to the date on which such amount became due,
and (B) thereafter, 2% per annum above the sum of the Alternate Base
Rate in effect from time to time plus the Applicable Rate in effect from
time to time for Base Rate Advances.
(c) Other Amounts. Any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all
times to 2% per annum above the Applicable Rate in effect from time to time
for Base Rate Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance. Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish such timely
information, the Administrative Agent shall determine such interest rate on
the basis of the timely information furnished by the other two Reference
Banks.
ARTICLE IV
PAYMENTS
SECTION 4.01 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the other Loan Documents not later than
12:00 noon (New York City time) on the day when due in U.S. Dollars to the
Administrative Agent at its address referred to in Section 10.02 in same day
funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest, fees
or other amounts payable to the Lenders, to the respective Lenders to whom
the same are payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to Section 10.07, from
and after the effective date specified in such Lender Assignment, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Lender Assignment shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent and each
Lender, if and to the extent payment owed to the Administrative Agent or such
Lender, as the case may be, is not made when due hereunder (or, in the case
of a Lender, under the Note held by such Lender), to charge from time to time
against any or all of the Borrower's accounts with the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Alternate Base Rate when
based on the Prime Rate and of fees payable pursuant to Section 2.02(a) shall
be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be. All computations of interest and other amounts
pursuant to Section 4.03 shall be made by the Lender claiming such interest
or other amount, on the basis of a year of 360 days. All other computations
of interest and fees hereunder (including computations of interest based on
the Eurodollar Rate and the Federal Funds Rate (including the Alternate Base
Rate if and so long as such Rate is based on the Federal Funds Rate) and any
interest rate applicable to a Competitive Advance) shall be made by the
Administrative Agent on the basis of a year of 360 days. In each such case,
such computation shall be made for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each such determination by the Administrative
Agent or a Lender shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under any other Loan Document
shall be stated to be due, or the last day of an Interest Period hereunder
shall be stated to occur, on a day other than a Business Day, such payment
shall be made and the last day of such Interest Period shall occur on the
next succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest and fees hereunder;
provided, however, that if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances or Eurodollar Competitive Advances
to be made, or the last day of an Interest Period for a Eurodollar Rate
Advance or a Eurodollar Competitive Advance to occur, in the next following
calendar month, such payment shall be made on the next preceding Business Day
and such reduction of time shall in such case be included in the computation
of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02 Prepayments. (a) The Borrower shall have no right to
prepay any principal amount of any Contract Advances except in accordance
with subsection (b) below. The Borrower shall have no right to prepay any
principal amount of any Competitive Advance.
(b) The Borrower may, upon at least one Business Days' notice to the
Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given, the Borrower shall, prepay
the outstanding principal amounts of Contract Advances comprising part of the
same Borrowing, in whole or ratably in part, together with accrued interest
to the date of such prepayment on the principal amount prepaid; provided,
however, that each partial prepayment shall be in an aggregate principal
amount not less than $5,000,000.
SECTION 4.03 Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to any Lender of the principal of or interest on any Eurodollar Rate Advance
or Competitive Advance made by such Lender or any fees or other amounts
payable hereunder (other than changes in respect of taxes imposed on the
overall net income of such Lender or its Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or in which such
Applicable Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against commitments or
assets of, deposits with or for the account of, or credit extended by, such
Lender, or (iii) shall impose on such Lender or the London interbank market
any other condition affecting this Agreement or Eurodollar Rate Advances or
Competitive Advances made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender of agreeing to make,
making or maintaining any Advance or to reduce the amount of any sum received
or receivable by such Lender hereunder or under the Notes (whether of
principal, interest or otherwise), then the Borrower will pay to such Lender
upon demand such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any change after
the date hereof in any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any Applicable Lending Office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect (i) of reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, as a consequence of this
Agreement, the Commitment of such Lender hereunder or the Advances made by
such Lender pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining the amount
of capital required or expected to be maintained by such Lender or such
Lender's holding company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such Lender
pursuant hereto and other similar such commitments, agreements or assets,
then from time to time the Borrower shall pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each Lender upon
demand, so long as such Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender, from the date of such Advance until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate
for the Interest Period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest Period. Such
additional interest shall be determined by such Lender and notified to the
Borrower and the Administrative Agent.
(d) Breakage Indemnity. The Borrower shall indemnify each Lender
against any loss, cost or reasonable expense which such Lender may sustain or
incur as a consequence of (i) any failure by the Borrower to fulfill on the
date of any Borrowing hereunder of Eurodollar Rate Advances or Competitive
Advances the applicable conditions set forth in Article V, (ii) any failure
by the Borrower to borrow any Eurodollar Rate Advance or Competitive Advance
hereunder after irrevocable Notice of Borrowing has been given pursuant to
Section 3.01, (iii) any payment or prepayment of a Eurodollar Rate Advance or
Competitive Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Eurodollar Rate Advance or
Competitive Advance or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable notice of
prepayment or otherwise) or (v) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain any Advance or any part
thereof as a Eurodollar Rate Advance or Competitive Advance. Such loss, cost
or reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of obtaining the funds
for the Eurodollar Rate Advance or Competitive Advance being paid, prepaid or
not borrowed for the period from the date of such payment, prepayment or
failure to borrow to the last day of the Interest Period for such Advance
(or, in the case of a failure to borrow, the Interest Period for such Advance
which would have commenced on the date of such failure) over (B) the amount
of interest (as reasonably determined by such Lender) that would be realized
by such Lender in reemploying the funds so paid, prepaid or not borrowed for
such period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any Eurodollar Rate
Advance or Eurodollar Competitive Advance, each Lender shall have funded each
such Advance with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such Lender's
claim for compensation hereunder and the amount necessary to compensate such
Lender or its holding company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrower and the Administrative Agent
and shall be conclusive and binding for all purposes, absent manifest error.
The Borrower shall pay each Lender directly the amount shown as due on any
such certificate within 10 days after its receipt of the same. The failure
of any Lender to provide such notice or to make demand for payment under this
Section 4.03 shall not constitute a waiver of such Lender's rights hereunder;
provided that such Lender shall not be entitled to demand payment pursuant to
subsections (a) through (d) of this Section 4.03, in respect of any loss,
cost, expense, reduction or reserve, if such demand is made more than one
year following the later of such Lender's incurrence or sufferance thereof or
such Lender's actual knowledge of the event giving rise to such Lender's
rights pursuant to such subsections. Each Lender shall use reasonable
efforts to ensure the accuracy and validity of any claim made by it
hereunder, but the foregoing shall not obligate any Lender to assert any
possible invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Rate Advance or
Eurodollar Competitive Advance or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Rate Advance or Eurodollar
Competitive Advance, then, by written notice to the Borrower and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances and Eurodollar
Competitive Advances will not thereafter be made by such Lender
hereunder, whereupon the right of the Borrower to select Eurodollar Rate
Advances for any Borrowing and any Competitive Borrowing consisting of
Eurodollar Competitive Advances shall be forthwith suspended until such
Lender shall withdraw such notice as provided hereinbelow or shall cease
to be a Lender hereunder pursuant to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances and
Eurodollar Competitive Advances made by it be repaid as of the effective
date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify the other Lenders. Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Borrower and the
Administrative Agent withdrawing such prior notice (but the failure to do so
shall impose no liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and obligations
hereunder in accordance with Section 10.07(g)), the Administrative Agent
shall deliver notice thereof to the Borrower and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrower under this subsection (f), such Lender shall use reasonable efforts
to change the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender. Any notice to the
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance
and Eurodollar Competitive Advance on the last day of the Interest Period
currently applicable to such Eurodollar Rate Advance or Eurodollar
Competitive Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrower and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances or Eurodollar Competitive
Advances in connection with any proposed Borrowing or (ii) if the Majority
Lenders shall notify the Administrative Agent that the Eurodollar Rate will
not adequately reflect the cost to such Majority Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances or Eurodollar
Competitive Advances, the right of the Borrower to select or receive
Eurodollar Rate Advances or Eurodollar Competitive Advances for any Borrowing
shall be forthwith suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist, and until such notification from the Administrative Agent each
requested Borrowing of Eurodollar Rate Advances and each requested Borrowing
of Eurodollar Competitive Advances hereunder shall be deemed to be a request
for Base Rate Advances.
SECTION 4.04 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise, but excluding any proceeds received by assignments or
sales of participation in accordance with Section 10.07 hereof to a Person
that is not an Affiliate of the Borrower) on account of the Advances owing to
it (other than pursuant to Section 4.03 hereof) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such
participation in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation.
Notwithstanding the foregoing, if any Lender shall obtain any such excess
payment involuntarily, such Lender may, in lieu of purchasing participation
from the other Lenders in accordance with this Section 4.04, on the date of
receipt of such excess payment, return such excess payment to the
Administrative Agent for distribution in accordance with Section 4.01(a).
SECTION 4.05 Taxes. (a) All payments by the Borrower hereunder and
under the other Loan Documents shall be made in accordance with Section 4.01,
free and clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender
or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed
on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any other Loan
Document to any Lender or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.05) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Any Lender's claim for such indemnification shall be set forth in a
certificate of such Lender setting forth in reasonable detail the amount
necessary to indemnify such Lender pursuant to this subsection (c) and shall
be submitted to the Borrower and the Administrative Agent and shall be
conclusive and binding for all purposes, absent manifest error. The Borrower
shall pay each Lender directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any Taxes or Other
Taxes for which a Lender or the Administrative Agent has received payments
from the Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as the case
may be, shall promptly forward to the Borrower any such refunded amount. The
Borrower's, the Administrative Agent's and each Lender's obligations under
this Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent, at its address referred to in
Section 10.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Each Lender shall, on or prior to the date it becomes a Lender
hereunder, deliver to the Borrower and the Administrative Agent such
certificates, documents or other evidence, as required by the Internal
Revenue Code of 1986, as amended from time to time (the "Code"), or treasury
regulations issued pursuant thereto, including Internal Revenue Service
Form 4224 and any other certificate or statement of exemption required by
Treasury Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed by such
Lender establishing that it is (a) not subject to withholding under the Code
or (b) totally exempt from United States of America tax under a provision of
an applicable tax treaty. Each Lender shall promptly notify the Borrower and
the Administrative Agent of any change in its Applicable Lending Office and
shall deliver to the Borrower and the Administrative Agent together with such
notice such certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith efforts to
apprise the Borrower as promptly as practicable of any impending change in
its tax status that would give rise to any obligation by the Borrower to pay
any additional amounts pursuant to this Section 4.05. Unless the Borrower
and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under the Notes
are not subject to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United States of
America. Each Lender represents and warrants that each such form supplied by
it to the Administrative Agent and the Borrower pursuant to this
Section 4.05, and not superseded by another form supplied by it, is or will
be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrower or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 Conditions Precedent to Effectiveness. The effectiveness
of this Agreement is subject to the fulfillment of the following conditions
precedent:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and
substance satisfactory to each Lender and in sufficient copies for each
Lender (except for the Notes):
(i) This Agreement, duly executed by the Borrower.
(ii) The Notes made to the order of the respective Lenders, duly
executed by the Borrower.
(iii) The Collateral Agency Agreement, duly executed by the
Borrower and by Chemical as the Collateral Agent and Administrative
Agent.
(iv) The PSNH Mortgage Amendment, duly executed by the Borrower and
the Collateral Agent, together with:
(A) acknowledgment copies of Financing Statements (Form
UCC-3) dated on or before the Closing Date duly executed by Bankers
Trust Company and indicating the assignment effected by the PSNH
Mortgage Assignment, and
(B) oral confirmation from Sulloway & Hollis of completion of
all recordings and filings of the Security Documents and all other
actions, as may be necessary or, in the opinion of the Collateral
Agent, desirable to perfect (or continue the perfection of) the
Liens created by the Security Documents.
(v) The PSNH Mortgage Assignment, duly executed by the Borrower,
Bankers Trust Company and the Collateral Agent.
(vi) A certificate of the Secretary or Assistant Secretary of the
Borrower certifying (A) that attached thereto are true and correct
copies of (1) the Articles of Incorporation of the Borrower, and all
amendments thereto, as in effect on such date, (2) the By-laws of the
Borrower, as in effect on such date and (3) resolutions of the Board of
Directors of the Borrower approving this Agreement, the other Loan
Documents and the other documents to be delivered by the Borrower
hereunder and thereunder, and of all documents evidencing other
necessary corporate action, if any, with respect to the execution,
delivery and performance by the Borrower of this Agreement and the other
Loan Documents, (B) that such resolutions have not been modified,
revoked or rescinded and are in full force and effect on such date and
(C) the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the other Loan Documents and the
other documents to be delivered hereunder and thereunder.
(vii) Financial projections (contained in the Information
Memorandum), on assumptions acceptable to the Banks, demonstrating
projected compliance with Section 7.01(j) hereof and the terms of this
Agreement and the Other Loan Documents.
(viii) An audited balance sheet of the Borrower as at
December 31, 1995 and the related statements of the Borrower's results
of operations, changes in retained earnings and cash flows as of and
for the year then ended, together with copies of all Current Reports on
Form 8-K, if any, filed by the Borrower with the Securities and Exchange
Commission since December 31, 1995.
(ix) A certificate of a duly authorized officer of the Borrower
certifying that attached thereto are true and correct copies of all
Governmental Approvals referred to in clause (i) of the definition of
"Governmental Approval" required to be obtained or made by the Borrower
in connection with the execution and delivery of this Agreement or any
Loan Document.
(x) A certificate of a duly authorized officer of the Borrower to
the effect that there is no pending or known threatened action or
proceeding (including, without limitation, any action or proceeding
relating to any environmental protection laws or regulations) affecting
the Borrower or its properties before any court, governmental agency or
arbitrator (A) which affects or purports to affect the legality,
validity or enforceability of the Loan Documents or any of them or
(B) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, prospects or
operations of the Borrower; except, for purposes of clause (B) only,
such as is described in the Disclosure Documents.
(xi) A certificate signed by the Treasurer or Assistant Treasurer
of the Borrower, certifying as to the absence of any material adverse
change in the financial condition, operations, properties or prospects
of the Borrower since December 31, 1995 except as disclosed in the
Disclosure Documents.
(xii) A certificate signed by the Chief Financial Officer,
Treasurer or Assistant Treasurer of NU, certifying as to the absence of
any material adverse change in the financial condition, operations,
properties or prospects of NU since December 31, 1995 except as
disclosed in the disclosure documents referred to in such certificate.
(xiii) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and warranties contained
in Section 6.01 are correct, in all material respects, on and as of the
Closing Date before and after giving effect to the Advances to be made
on such date and the application of the proceeds thereof, and (ii) no
event has occurred and is continuing which constitutes an Event of
Default or Unmatured Default, or would result from such initial Advances
or the application of the proceeds thereof and
(xiv) Favorable opinions of:
(A) Jeffrey C. Miller, Assistant General Counsel to NUSCO, in
substantially the form of Exhibit 5.01A and as to such other
matters as the Majority Lenders, through the Administrative Agent,
may reasonably request;
(B) Robert A. Bersak, Assistant General Counsel of the
Borrower, in substantially the form of Exhibit 5.01B and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(C) Sulloway & Hollis, special New Hampshire counsel to the
Borrower, in substantially the form of Exhibit 5.01C and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(D) Drummond Woodsum & MacMahon, special Maine counsel to the
Borrower, in substantially the form of Exhibit 5.01D and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request;
(E) Zuccaro, Willis & Bent, special Vermont counsel to the
Borrower, in substantially the form of Exhibit 5.01E and as to such
other matters as the Majority Lenders, through the Administrative
Agent, may reasonably request; and
(F) King & Spalding, counsel to the Administrative Agent, in
substantially the form of Exhibit 5.01F, and as to such other
matters as the Majority Lenders, through the Administrative Agent,
may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.02 hereof
or pursuant to the Fee Letter shall have been paid (to the extent then due
and payable).
(c) All principal of and interest arising under, and all other amounts
payable in connection with the Existing Revolving Credit Agreement and the
notes issued thereunder shall have been paid in full.
(d) The Administrative Agent shall have received such other approvals,
opinions and documents as the Majority Lenders, through the Administrative
Agent, may reasonably request as to the legality, validity, binding effect or
enforceability of the Loan Documents or the financial condition, properties,
operations or prospects of the Borrower.
SECTION 5.02 Conditions Precedent to Certain Contract Advances and all
Competitive Advances. The obligation of any Lender to make any Contract
Advance to the Borrower (except as set forth in Section 5.03) including the
initial Advance to the Borrower, or to make any Competitive Advance shall be
subject to the conditions precedent that, on the date of such Contract
Advance or Competitive Advance and after giving effect thereto:
(a) the following statement shall be true (and each of the giving of
the applicable notice or request with respect to such Advance and the
performance of such Advance without prior correction by the Borrower shall
constitute a representation and warranty by the Borrower that on the date of
such Advance such statements are true):
(i) the representations and warranties contained in Section 6.01
of this Agreement and in Section 1.02 of the PSNH Mortgage are correct
on and as of the date of such Advance, before and after giving effect to
such Advance and to the application of the proceeds therefrom, as though
made on and as of such date,
(ii) no Event of Default or Unmatured Default has occurred and
is continuing, or would result from such Advance or from the application
of the proceeds thereof, and
(iii) the making of such Advance, when aggregated with all
other outstanding and requested Advances and all other short-term debt
of the Borrower would not cause the Borrower's Debt Limit then in effect
to be exceeded; and
(b) the Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender, through the
Administrative Agent, may reasonably request as to the legality, validity,
binding effect or enforceability of the Loan Document.
SECTION 5.03 Conditions Precedent to Other Contract Advances. The
obligation of the Bank to make any Contract Advance that would not cause the
aggregate outstanding amount of the Contract Advances made by such Lender
(outstanding immediately prior to and after the making of such Contract
Advance) to increase shall be subject to the conditions precedent that, on
the date of such Contract Advance and after giving effect thereto:
(a) the following statement shall be true (and each of the giving of
the applicable notice or request with respect to such Contract Advance and
the acceptance of such Contract Advance without prior correction by the
Borrower shall constitute a representation and warranty by the Borrower that
on the date of such Contract Advance such statements are true):
(i) the representations and warranties contained in Section 6.01
of this Agreement (other than those set forth in the last sentence of
Section 6.01(e) and Section 6.01(f)) and in Section 1.02(b) of the PSNH
Mortgage are correct on and as of the date of such Contract Advance,
before and after giving effect to such Contract Advance and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no Event of Default has occurred and is continuing, or would
result from such Advance or from the application of the proceeds
thereof, and
(iii) the making of such Advance, when aggregated with all
other outstanding and requested Advances and all other short-term debt
of the Borrower would not cause the Borrower's Debt Limit then in effect
to be exceeded; and
(b) the Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender, through the
Administrative Agent, may reasonably request as to the legality, validity,
binding effect or enforceability of the Loan Documents.
SECTION 5.04 Reliance on Certificates. The Lenders and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of the Borrower, NU and
the other parties to the Significant Contracts as to the names, incumbency,
authority and signatures of the respective persons named therein until such
time as the Administrative Agent may receive a replacement certificate, in
form acceptable to the Administrative Agent, from an officer of such Person
identified to the Administrative Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Person thereafter authorized to act on behalf
of such Person, and, in all cases, the Lenders and the Administrative Agent
may rely on the information set forth in any such certificate including,
without limitation, information relating to the Debt Limit.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized and validly existing
under the laws of the State of New Hampshire. The Borrower is duly qualified
to do business in, and is in good standing in, all other jurisdictions where
the nature of its business or the nature of property owned or used by it
makes such qualifications necessary.
(b) The execution, delivery and performance by the Borrower of the Rate
Agreement, each Loan Document and each Significant Contract to which it is a
party are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not and will not contravene (i) the
Borrower's charter or by-laws or (ii) any law or legal or contractual
restriction binding on or affecting the Borrower; and such execution,
delivery and performance do not or will not result in or require the creation
of any Lien (other than pursuant hereto or pursuant to the Security Documents
or the First Mortgage Indenture) upon or with respect to any of its
properties.
(c) All Governmental Approval referred to in clauses (i) and (ii) of
the definition of "Governmental Approvals" have been duly obtained or made,
and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired. The Borrower has obtained all Governmental
Approvals referred to in clause (iii) of the definition of "Governmental
Approvals", except those not yet required but which are obtainable in the
ordinary course of business as and when required and those the absence of
which would not materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(d) This Agreement, the Rate Agreement, each other Loan Document and
each Significant Contract are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms; subject to the qualifications, however, that the enforcement of the
rights and remedies herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and remedies of
creditors, that the remedy of specific performance or of injunctive relief is
subject to the discretion of the court before which any proceedings therefor
may be brought, and that indemnification against violations of securities and
similar laws may be subject to matters of public policy.
(e) The audited balance sheet of the Borrower as at December 31, 1995,
and the related statements of the Borrower setting forth the results of
operations, retained earnings and cash flows of the Borrower for the fiscal
year then ended, copies of which have been furnished to each Bank, fairly
present in all material respects the financial condition, results of
operations, retained earnings and cash flows of the Borrower at and for the
year ended on such date, and have been prepared in accordance with generally
accepted accounting principles consistently applied. Except as reflected in
such financial statements, the Borrower has no material non-contingent
liabilities, and all contingent liabilities have been appropriately reserved.
The financial projections referred to in Section 5.01(a)(iv), have each been
prepared in good faith and on reasonable assumptions. Since December 31,
1995, there has been no material adverse change in the Borrower's financial
condition, operations, properties or prospects other than as disclosed in the
Disclosure Documents.
(f) Except as set forth in the Disclosure Documents, there is no
pending or known threatened action or proceeding (including, without
limitation, any action or proceeding relating to any environmental protection
laws or regulations) affecting the Borrower or its properties before any
court, governmental agency or arbitrator, (i) which affects or purports to
affect the legality, validity or enforceability of the Loan Documents, the
Rate Agreement or any Significant Contract or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(g) All insurance required by Section 7.01(c) hereof will be in full
force and effect.
(h) No ERISA Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any ERISA Plan which would materially
adversely affect the financial condition, properties, prospects or operations
of the Borrower, except as disclosed to and consented by the Majority Lenders
in writing. Since the date of the most recent Schedule B (Actuarial
Information) to the annual report of the Borrower (Form 5500 Series), if any,
there has been no material adverse change in the funding status of the ERISA
Plans referred to therein and no "prohibited transaction" has occurred with
respect thereto, except as described in the Borrower's Annual Report on Form
10-K for the year ended December 31, 1995 and except as the same may be
exempt pursuant to Section 408 of ERISA and regulations and orders
thereunder. Neither the Borrower nor any of its ERISA Affiliates has
incurred nor reasonably expects to incur any material withdrawal liability
under ERISA to any ERISA Multiemployer Plan, except as disclosed to and
consented by the Majority Lenders in writing.
(i) The Major Electric Generating Plants are on land in which the
Borrower owns a full or an undivided fee interest subject only to Liens
permitted by Section 7.02(a) hereof, which do not materially impair the
usefulness to the Borrower of such properties; the electric transmission and
distribution lines of the Borrower in the main are located in New Hampshire
and on land owned in fee by the Borrower or over which the Borrower has
easements, or are in or over public highways or public waters pursuant to
adequate statutory or regulatory authority, and any defects in the title to
such transmission and distribution lands or easements are in the main curable
by the exercise of the Borrower's right of eminent domain upon a finding that
such eminent domain proceedings are necessary to meet the reasonable
requirements of service to the public; the Borrower enjoys peaceful and
undisturbed possession under all of the leases under which it is operating,
none of which contains any unusual or burdensome provision which will
materially affect or impair the operation of the Borrower; and the Security
Documents create valid Liens in the Collateral, subject only to Liens
permitted by Section 7.02(a) hereof, and, all filings and other actions
necessary to perfect and protect such security interests (to the extent such
security interests may be perfected or protected by filing) have been taken.
(j) No material part of the properties, business or operations of the
Borrower are materially adversely affected by any fire, explosion, accident,
strike, lockout or other labor disputes, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (except for any
such circumstance, if any, which is covered by insurance which coverage has
been confirmed and not disputed by the relevant insurer or by fully-funded
self-insurance programs).
(k) The Borrower has filed all tax returns (Federal, state and local)
required to be filed and paid taxes shown thereon to be due, including
interest and penalties, or, to the extent the Borrower is contesting in good
faith an assertion of liability based on such returns, has provided adequate
reserves in accordance with generally accepted accounting principles for
payment thereof.
(l) No exhibit, schedule, report or other written information provided
by the Borrower or its agents to the Lenders in connection with the
negotiation, execution and closing of this Agreement (including, without
limitation, the Information Memorandum) knowingly contained when made any
material misstatement of fact or knowingly omitted to state any material fact
necessary to make the statements contained therein not misleading in light of
the circumstances under which they were made.
(m) No event has occurred and is continuing which constitutes a
material default under the Rate Agreement or any Significant Contract.
(n) All proceeds of the Advances shall be used for general working
capital and for the payment in full of all amounts outstanding under the
Existing Revolving Credit Agreement. No proceeds of any Advance will be used
(i) to acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934 or (ii) to buy or carry any
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) or to extend credit to others for
such purpose. The Borrower (i) is not an "investment company" within the
meaning ascribed to that term in the Investment Company Act of 1940 and
(ii) is not engaged in the business of extending credit for the purpose of
buying or carrying margin stock.
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01 Affirmative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Majority Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance solely as
specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the same shall
become delinquent, all taxes, assessments and governmental charges, royalties
or levies imposed upon it or upon its property except to the extent the
Borrower is contesting the same in good faith by appropriate proceedings and
has set aside adequate reserves for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance (including appropriate plans of self-insurance) covering the
Borrower and its properties in effect at all times in such amounts and
covering such risks as may be required by law and in addition as is usually
carried by companies engaged in similar businesses and owning similar
properties.
(d) Preservation of Existence, Etc. Preserve and maintain its
corporate existence, material rights (statutory and otherwise) and franchises
except as otherwise expressly provided for in the Security Documents.
(e) Compliance with Laws, Etc. Comply in all material respects with
the requirements of all applicable laws, rules, regulations and orders of any
governmental authority, including without limitation any such laws, rules,
regulations and orders relating to utilities, zoning, environmental
protection, use and disposal of Hazardous Substances, land use, construction
and building restrictions, and employee safety and health matters relating to
business operations, except to the extent (i) that the Borrower is contesting
the same in good faith by appropriate proceedings or (ii) that any such non-
compliance, and the enforcement or correction thereof, would not materially
adversely affect the financial condition, properties, prospects or operations
of the Borrower as a whole.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents and
representatives to examine and make copies of and abstracts from the records
and books of account of, and the properties of, the Borrower and to discuss
the affairs, finances and accounts of the Borrower with the Borrower and of
its officers, directors and accountants.
(g) Keeping of Books. Keep proper records and books of account, in
which full and correct entries shall be made of all financial transactions of
the Borrower and the assets and business of the Borrower, in accordance with
good accounting practices consistently applied.
(h) Performance of Related Agreements. From and after the effective
date of the Rate Agreement and each Significant Contract, (i) perform and
observe all material terms and provisions of such agreements to be performed
or observed by the Borrower and (ii) take all reasonable steps to enforce
such agreements substantially in accordance with their terms and to preserve
the rights of the Borrower thereunder; provided, that the foregoing
provisions of this Section 7.01(h) shall not preclude the Borrower from any
waiver, amendment, modification, consent or termination permitted under
Section 7.02(g) hereof.
(i) Collection of Accounts Receivable. Promptly bill, and diligently
pursue collection of, in accordance with customary utility practices, all
accounts receivable owing to the Borrower and all other amounts that may from
time to time be owing to the Borrower for services rendered or goods sold.
(j) Maintenance of Financial Covenants.
(i) Operating Income to Interest Expense. Maintain a ratio of
Operating Income to Interest Expense of not less than (A) 1.75 to 1.00
for each period of four consecutive fiscal quarters on each quarter-end
ending on or prior to June 30, 1997 and (B) 2.00 to 1.00 for each period
of four consecutive fiscal quarters, ending on each quarter-end after
such date.
(ii) Common Equity to Total Capitalization. Maintain at all times
a ratio of Common Equity to Total Capitalization of not less than (A)
0.285 to 1.00 during each fiscal quarter ending on or prior to June 30,
1997 and (B) 0.30 to 1.00 during each fiscal quarter ending after such
date.
(k) Maintenance of Properties, Etc. (c) As to properties of the type
described in Section 6.01(i) hereof, maintain title of the quality described
therein; and (d) preserve, maintain, develop, and operate in substantial
conformity with all laws, material contractual obligations and prudent
practices prevailing in the industry, all of its properties which are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent such non-conformity
would not materially adversely affect the financial condition, properties,
prospects or operations of the Borrower as a whole.
(l) Governmental Approvals. Duly obtain on or prior to such date as
the same may become legally required, and thereafter maintain in effect at
all times, all Governmental Approvals on its part to be obtained, except
those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of the Borrower as a
whole.
(m) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or that any Lender through the Administrative Agent may reasonably request in
order to fully give effect to the interests and properties purported to be
covered by the Security Documents.
SECTION 7.02 Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall
not, without the prior written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist any lien,
security interest, or other charge or encumbrance (including the lien or
retained security title of a conditional vendor) of any kind, or any other
type of preferential arrangement the intent or effect of which is to assure a
creditor against loss or to prefer one creditor over another creditor upon or
with respect to any of its properties of any character (any of the foregoing
being referred to herein as a "Lien") whether now owned or hereafter
acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction a financing statement which names the Borrower as debtor, sign
any security agreement authorizing any secured party thereunder to file such
financing statement, or assign accounts, excluding, however, from the
operation of the foregoing restrictions the Liens created or perfected under
the Loan Documents and the following, whether now existing or hereafter
created or perfected:
(i) Liens on property specifically reserved, excepted and excluded
by subparagraphs (c) through (g) and subparagraph (j) following the
Granting Clauses section of the First Mortgage Indenture;
(ii) Permitted Encumbrances (as defined in the PSNH Mortgage)
on the Indenture Assets (except Liens referred to in paragraphs (s) and
(t) of Schedule C to the PSNH Mortgage hereafter directly created by the
Borrower, provided, however, that the Borrower may create any such Lien
with the prior consent of the Majority Lenders if such Lien would not
materially adversely affect the security granted under the PSNH
Mortgage, as determined by the Majority Lenders in their reasonable
discretion), provided that in no event shall the outstanding principal
amount of the First Mortgage Bonds exceed at any time the First Mortgage
Bond Amount;
(iii) Liens referred to in paragraphs (b) through (t) of Schedule C
to the PSNH Mortgage on realty or personalty that is subject to the Lien
of the First Mortgage Indenture but is not also subject to the Lien of
the PSNH Mortgage; provided, however, that the aggregate principal
amount of the Debt at any one time outstanding secured by purchase money
Liens permitted by paragraph (m) of Schedule C to the PSNH Mortgage
including Liens of a conditional vendor that are the functional
equivalent of purchase money Liens, shall not exceed $20,000,000; and
(iv) Liens created or perfected under or in connection with (A)the
Other Loan Documents and (B) the Pledge Agreements referred to in the
Series D Reimbursement Agreement and the Series E Reimbursement
Agreement.
(b) Debt. Create, incur or assume any Debt unless, after giving effect
thereto, (i) no Event of Default or Unmatured Default shall have occurred and
be continuing on the date of such creation, incurrence or assumption
(determined in the case of Section 7.01(j)(i) as though such Debt were
created, incurred or assumed as of the first day of the immediately preceding
fiscal quarter and using the Borrower's most recent annual actuarial
determinations in the computation of Debt referred to in clause (ix) of the
definition of "Debt") and (ii) the Borrower shall have determined that, on
the basis of the assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant to
Section 7.03(iv) hereof (which the Borrower continues to believe to be
reasonable), the Borrower will continue to be in compliance at all times with
the provisions of Section 7.01(j) hereof. The Borrower will furnish evidence
of its compliance with this subsection (b) for each fiscal quarter pursuant
to Section 7.03(ii) hereof.
(c) Mergers, Etc. Merge with or into or consolidate with or into, or
acquire all or substantially all of the assets of, any Person.
(d) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of all or any substantial part of its assets (other than sales, transfers or
other dispositions of receivables) whether in a single transaction or series
of transactions during any consecutive 12-month period except for sales,
leases, transfers or other dispositions in the ordinary course of the
Borrower's business in accordance with ordinary and customary terms and
conditions.
For purposes of this subsection (d) any transaction or series of
transactions during any consecutive 12-month period shall be deemed to
involve a "substantial part" of the Borrower's assets if, in the aggregate,
(A) the value of such assets equals or exceeds 10% of the total assets of the
Borrower reflected in the financial statements of the Borrower delivered
pursuant to Section 7.03(ii) or 7.03(iii) hereof in respect of the fiscal
quarter or year ending on or immediately prior to the commencement of such
12-month period or (B) for the four calendar quarters ending on or
immediately prior to commencement of such 12-month period, the gross revenue
derived by the Borrower from such assets shall equal or exceed 10% of the
total gross revenue of the Borrower.
(e) Restricted Payments. Declare or pay any dividend, or make any
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any share of any class of capital
stock of the Borrower (other than stock splits and dividends payable solely
in equity securities of the Borrower), or purchase, redeem, retire, or
otherwise acquire for value any shares of any class of capital stock of the
Borrower or any warrants, rights, or options to acquire any such Debt or
shares, now or hereafter outstanding, or make any distribution of assets to
any of its shareholders (any such transaction being a "Restricted Payment")
except for Restricted Payments made in compliance with the following
conditions:
(i) The Borrower may not make any Restricted Payments if an Event
of Default or Unmatured Default shall have occurred and be continuing.
(ii) The Borrower may not make any Restricted Payments during any
fiscal quarter if, after giving effect thereto (and to the other
computations set forth below in this clause (ii)), the Borrower would
not be in full compliance with Section 7.01(j) hereof. For purposes of
determining compliance with Section 7.01(j) under this clause (ii),
computations under Section 7.01(j) shall be made as of the date of such
Restricted Payment, except that, retained earnings shall be determined
as of the last day of the immediately preceding fiscal quarter (adjusted
for all Restricted Payments made after the last day of such preceding
fiscal quarter).
(iii) The Borrower may not make any Restricted Payments unless,
after giving effect thereto, the Borrower shall have determined that, on
the basis of the assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant to Section
7.03(iv) hereof (which the Borrower continues to believe to be
reasonable) the Borrower will continue to be in compliance at all times
with the provisions of Section 7.01(j) hereof.
(f) Compliance with ERISA.
(i) Terminate, or permit any ERISA Affiliate to terminate, any
ERISA Plan so as to result in any material (in the opinion of the Majority
Lenders) liability of the Borrower to the PBGC, or (ii) permit to exist any
occurrence of any Reportable Event (as defined in
Title IV of ERISA), or any other event or condition, which presents a
material (in the opinion of the Majority Lenders) risk of such a termination
by the PBGC of any ERISA Plan and such a material liability to the Borrower.
(g) Related Agreements.
(i) Amendments. Amend, modify or supplement or give any consent,
acceptance or approval to any amendment, modification or supplement or
deviation by any party from the terms of, the Rate Agreement or any
Significant Contract, except, with respect only to the Significant
Contracts, any amendment, modification or supplement thereto that would
not reduce the rights or entitlements of the Borrower thereunder in any
material way.
(ii) Termination. Cancel or terminate (or consent to any
cancellation or termination of) the Rate Agreement or any Significant
Contract prior to the expiration of its stated term, provided that this
subsection (ii) shall not restrict the rights of the Borrower to enforce
any remedy against any obligor under any Significant Contract in the
event of a material breach or default by such obligor thereunder if and
so long as the Borrower shall have provided to the Administrative Agent
at least 30 days prior written notice of the enforcement action proposed
to be undertaken by the Borrower.
(h) Change in Nature of Business. Engage in any material business
activity other than those established and engaged in on the date hereof.
(i) Ownership in Seabrook and Nuclear Plants. Acquire, directly or
indirectly, any ownership interest or any additional ownership interest of
any kind in any nuclear-powered electric generating plant.
(j) Subsidiaries. Create or suffer to exist any active subsidiaries
other than Properties, Inc., a New Hampshire corporation; or permit any
material assets or business to be maintained at or conducted by any
subsidiary except for the assets owned by Properties, Inc. not exceeding
$20,000,000.
(k) Debt Limit. At any time, cause or permit the Debt Limit to be
exceeded, by voluntary incurrence of short-term debt or by other means.
SECTION 7.03 Reporting Obligations. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall,
unless the Majority Lenders shall otherwise consent in writing, furnish to
the Administrative Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within five (5) days
after the occurrence of each Event of Default or Unmatured Default
continuing on the date of such statement, a statement of the Chief
Financial Officer, Treasurer or Assistant Treasurer of the Borrower
setting forth details of such Event of Default or Unmatured Default
and the action which the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event within fifty (50)
days after the end of each of the first three quarters of each
fiscal year of the Borrower, (A) if and so long as the Borrower is
required to submit to the Securities and Exchange Commission a
report on Form 10-Q, a copy of the Borrower's report on Form 10-Q
submitted to the Securities and Exchange Commission with respect to
such quarter and (B) if the Borrower ceases to be required to
submit such report, a balance sheet of the Borrower as of the end
of such quarter and statements of income and retained earnings and
of cash flows of the Borrower for the period commencing at the end
of the previous fiscal year and ending with the end of such
quarter, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 6.01(e) hereof, in each
such case, delivered together with a certificate of said officer
(1) stating that no Event of Default or Unmatured Default has
occurred and is continuing or, if an Event of Default or Unmatured
Default has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower proposes to take
with respect thereto and (2) (y) demonstrating compliance with
Section 7.01(j) for and as of the end of such fiscal quarter and
compliance with Section 7.02(b), as of the dates on which any Debt
was created, incurred or assumed (using the Borrower's most recent
annual actuarial determinations in the computation of Debt referred
to in clause (ix) in the definition of "Debt"), and (z)
demonstrating, after giving effect to the incurrence of any Debt
created, incurred or assumed during such fiscal quarter (using the
Borrower's most recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the definition of
"Debt"), compliance with Section 7.01(j) for the remainder of the
fiscal year of the Borrower based on the operating budget/forecast
of operations delivered pursuant to Section 7.03(iv) hereof for
such fiscal year, in each case, such demonstration to be in a
schedule (in form satisfactory to the Majority Lenders) which sets
forth the computations used by the Borrower in determining such
compliance;
(iii) as soon as available and in any event within 105
days after the end of each fiscal year of the Borrower, (A) if and
so long as the Borrower is required to submit to the Securities and
Exchange Commission a report on Form 10-K, a copy of the Borrower's
report on Form 10-K submitted to the Securities and Exchange
Commission with respect to such year and (B) if the Borrower ceases
to be required to submit such report, a copy of the annual audit
report for such year for the Borrower including therein a balance
sheet of the Borrower as of the end of such fiscal year and
statements of income and retained earnings and of cash flows of the
Borrower for such fiscal year, in each case certified by a
nationally-recognized independent public accountant, in each such
case delivered together with a certificate of the Chief Financial
Officer, Treasurer or Assistant Treasurer (A) (1) stating that the
financial statements were prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of financial statements referred to in Section 6.01(e)
hereto, and (2) no Event of Default or Unmatured Default has
occurred and is continuing, or if an Event of Default or Unmatured
Default has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower proposes to take
with respect thereto and (B) demonstrating compliance with Section
7.01(j) for and as of the end of such fiscal year and compliance
with Section 7.02(b), as of the dates on which any Debt was
created, incurred or assumed (using the Borrower's most recent
annual actuarial determinations in the computation of Debt referred
to in clause (ix) in the definition of "Debt"), such demonstration
to be in a schedule (in form satisfactory to the Majority Lenders)
which sets forth the computations used by the Borrower in
determining such compliance.
(iv) as soon as available and in any event before March 31 of
each fiscal year a copy of an operating budget/forecast of
operations of the Borrower as approved by the Board of Directors of
the Borrower in form satisfactory to the Lenders for the next
fiscal year of the Borrower, together with a certificate of the
Chief Financial Officer, Treasurer or Assistant Treasurer of the
Borrower stating that such budget/forecast was prepared in good
faith and on reasonable assumptions;
(v) as soon as available and in any event no later than the
New Hampshire Public Utilities Commission shall have received the
Borrower's annual submission, if any, relating to the "return on
equity collar" referred to in the Rate Agreement, a copy of such
annual submission of the Borrower;
(vi) as soon as possible and in any event (A) within 30 days
after the Borrower knows or has reason to know that any ERISA Plan
Termination Event described in clause (i) of the definition of
ERISA Plan Termination Event with respect to any ERISA Plan or
ERISA Multiemployer Plan has occurred and (B) within 10 days after
the Borrower knows or has reason to know that any other ERISA Plan
Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the Borrower
describing such ERISA Plan Termination Event and the action, if
any, which the Borrower proposes to take with respect thereto;
(vii) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from the PBGC, copies of each notice
received by the Borrower or any such ERISA Affiliate of the PBGC's
intention to terminate any ERISA Plan or ERISA Multiemployer Plan
or to have a trustee appointed to administer any ERISA Plan or
ERISA Multiemployer Plan;
(viii) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each ERISA Plan (if any) to which the
Borrower is a contributing employer;
(ix) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from an ERISA Multiemployer Plan
sponsor, a copy of each notice received by the Borrower or any of
its ERISA Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount of at least
$10,000,000 pursuant to Section 4202 of ERISA in respect of which
the Borrower may be liable;
(x) promptly after the Borrower becomes aware of the
occurrence thereof, notice of all actions, suits, proceedings or
other events (A) of the type described in Section 6.01(f), or
(B) which purport to affect the legality, validity or
enforceability of any of the Loan Documents or Significant
Contracts;
(xi) promptly after the sending or filing thereof, copies of
all such proxy statements, financial statements, and reports which
the Borrower sends to its public security holders (if any) or files
with, and copies of all regular, periodic and special reports and
all registration statements and periodic or special reports, if
any, which the Borrower files with, the Securities and Exchange
Commission or any governmental authority which may be substituted
therefor, or with any national securities exchange;
(xii) promptly after receipt thereof, any assertion of the
character described in Section 8.01(h) hereof and the action the
Borrower proposes to take with respect thereto;
(xiii) promptly after knowledge of any material default
under the Rate Agreement or any Significant Contract, notice of
such default and the action the Borrower proposes to take with
respect thereto;
(xiv) promptly after knowledge of any amendment,
modification, or other change to the Rate Agreement or any
Significant Contract or to any Governmental Approval affecting the
Rate Agreement, notice of such amendment, modification or other
change, it being understood that for purposes of this clause (xiv)
any filing by the Borrower in the ordinary course of the Borrower's
business with, or order issued or action taken by, a governmental
authority or regulatory body to implement the terms of the Rate
Agreement shall not be considered an amendment, modification or
change to a Governmental Approval affecting the Rate Agreement; and
(xv) promptly after requested, such other information
respecting the financial condition, operations, properties,
prospects or otherwise, of the Borrower as the Administrative Agent
or Majority Lenders may from time to time reasonably request in
writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01 Events of Default. The following events shall each
constitute an "Event of Default" if the same shall occur and be continuing
after the grace period and notice requirement (if any) applicable thereto:
(a) The Borrower shall fail to pay any principal of any Note when due
or shall fail to pay any interest on any Note, fees or other amounts within
two days after the same becomes due; or
(b) Any representation or warranty made by the Borrower (or any of its
officers or agents) in this Agreement, any other Loan Document, certificate
or other writing delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any term or covenant
on its part to be performed or observed contained in Sections 7.01(a), (d) or
(j), Section 7.02 or Section 7.03(i) hereof; or
(d) The Borrower shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in this Agreement
or any Loan Document and any such failure shall remain unremedied, after
written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender, for a period of 30 days; or
(e) The Borrower shall fail to pay any of its Debt when due (including
any interest or premium thereon but excluding Debt evidenced by the Notes and
excluding other Debt aggregating in no event more than $10,000,000 in
principal amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in any
agreement or instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or as a
result of the Borrower's exercise of a prepayment option) prior to the stated
maturity thereof; unless in each such case the obligee under or holder of
such Debt or the trustee with respect to such Debt shall have waived in
writing such circumstance without consideration having been paid by the
Borrower so that such circumstance is no longer continuing; or
(f) The Borrower shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make an assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of its debts
under any law relating to bankruptcy, insolvency, or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of a proceeding instituted against the
Borrower, either the Borrower shall consent thereto or such proceeding shall
remain undismissed or unstayed for a period of 90 days or any of the actions
sought in such proceeding (including without limitation the entry of an order
for relief against the Borrower or the appointment of a receiver, trustee,
custodian or other similar official for the Borrower or any of its property)
shall occur; or the Borrower shall take any corporate or other action to
authorize any of the actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or its properties and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and shall not have been stayed or (ii) there
shall be any period of 15 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(h) Any material provision of any Loan Document, the Rate Agreement or
any Significant Contract shall for any reason other than the express terms
thereof or the exercise of any right or option expressly contained therein
cease to be valid and binding on any party thereto except as otherwise
expressly permitted by the exceptions and provisos contained in
Section 7.02(g) hereof; or any party thereto other than the Lenders shall so
assert in writing provided that in the case of any party other than the
Borrower making such assertion in respect of the Rate Agreement or any
Significant Contract, such assertion shall not in and of itself constitute an
Event of Default hereunder until (i) such asserting party shall cease to
perform under and in compliance with the Rate Agreement or such Significant
Contract, (ii) the Borrower shall fail to diligently prosecute, by
appropriate action or proceedings, a rescission of such assertion or a
binding determination as to the merits thereof or (e) such a binding
determination shall have been made in favor of such asserting party's
position; or
(i) The Security Documents after delivery under Article V hereof shall
for any reason, except to the extent permitted by the terms thereof, fail or
cease to create valid and perfected Liens (to the extent purported to be
granted by such documents and subject to the exceptions permitted thereunder)
in any of the Collateral, provided, that such failure or cessation relating
to any non-material portion of such Collateral shall not constitute an Event
of Default hereunder unless the same shall not have been corrected within 30
days after the Borrower becomes aware thereof; or
(j) The Borrower shall not have in full force and effect any or all
insurance required under Section 7.01(c) hereof or there shall be incurred
any uninsured damage, loss or destruction of or to the Borrower's properties
in an amount not covered by insurance (including fully-funded self-insurance
programs) which the Majority Lenders consider to be material; or
(k) Any "Event of Default" (as therein defined) shall occur and be
continuing under the Other Loan Documents, or a default by the Borrower shall
have occurred under the Rate Agreement and shall not have been effectively
cured within the time period specified therein for such cure (or, if no such
time period is specified therein, 10 days); or, a default by any party shall
have occurred under any Significant Contract and such default shall not have
been effectively cured within 30 days after notice from the Administrative
Agent to the Borrower stating that, in the opinion of the Majority Lenders,
such default may have a material adverse effect upon the financial condition,
operations, properties or prospects of the Borrower as a whole; or
(l) Any Governmental Approval (whether federal, state or local)
required to give effect to the Rate Agreement (including, without limitation,
Chapter 362-C of the New Hampshire Revised Statutes and the enabling order of
The New Hampshire Public Utilities Commission issued pursuant thereto) shall
be amended, modified or supplemented, or any other regulatory or legislative
action or change (whether federal, state or local) having the effect,
directly or indirectly, of modifying the benefits or entitlements of the
Borrower under the Rate Agreement shall occur, and in any such case such
amendment, modification, supplement, action or change may have, in the
opinion of the Majority Lenders, a material adverse effect upon the financial
condition, operations, properties or prospects of the Borrower as a whole; or
(m) NU shall cease to own all of the outstanding common stock of the
Borrower, free and clear of any Liens.
SECTION 8.02 Remedies Upon Events of Default. Upon the occurrence and
during the continuance of any Event of Default, then, and in any such event,
the Administrative Agent shall at the request, or may with the consent, of
the Majority Lenders, upon notice to the Borrower (i) declare the Commitments
and the obligation of each Lender to make Advances to be terminated,
provided, that any such request or consent shall be made solely by the
Lenders having Percentages in the aggregate of not less 66-2/3%, whereupon
the same shall forthwith terminate, (ii) declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the Security
Documents to be forthwith due and payable, provided, that any such request or
consent shall be made solely by the Lenders holding at least 66-2/3% of the
then aggregate unpaid principal amount of the Advances owing to the Lenders,
whereupon the Notes, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower,
and (iii) exercise in respect of any and all collateral, in addition to the
other rights and remedies provided for herein and in the Security Documents
or otherwise available to the Administrative Agent, the Collateral Agent or
the Lenders, all the rights and remedies of a secured party on default under
the Uniform Commercial Code in effect in the State of New York and in effect
in any other jurisdiction in which Collateral is located at that time;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code,
(A) the Commitments and the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided
for by any Loan Documents (including, without limitation, enforcement or
collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided, however, that
the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary
to this Agreement or applicable law. The Administrative Agent agrees to
deliver promptly to each Lender notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 9.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or wilful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by the Lender which is the payee of
such Note, as assignor, and an assignee, as provided in Section 10.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for the Information Memorandum or any other
statements, warranties or representations made in or in connection with any
Loan Document; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of the Borrower to be performed or observed, or
to inspect any property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document, Significant Contract or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of any
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03 Chemical and Affiliates. With respect to its Commitment
and the Note issued to it, Chemical shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Chemical in its
individual capacity. Chemical and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its subsidiaries and any
Person who may do business with or own securities of the Borrower or any such
subsidiary, all as if Chemical was not the Administrative Agent and without
any duty to account therefor to the Lenders.
SECTION 9.04 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the Information Memorandum and other financial
information referred to in Section 6.01(e) and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement.
SECTION 9.05 Indemnification. The Lenders agree to indemnify CSI and
the Administrative Agent (to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the Notes then held
by each of them (or if no Notes are at the time outstanding, ratably
according to the respective Commitments of the Lenders or if any Notes or
Commitments are held by the Borrower or Affiliates thereof, any ratable
apportionment hereunder shall exclude the principal amount of the Notes held
by the Borrower or its Commitment hereunder), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against CSI or the
Administrative Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by CSI or the Administrative Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from CSI s or the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse CSI and the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by CSI or the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement to the extent that CSI or
the Administrative Agent are entitled to reimbursement for such expenses
pursuant to Section 10.04 but is not reimbursed for such expenses by the
Borrower.
SECTION 9.06 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and
the Borrower, with any such resignation to become effective only upon the
appointment of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent, which shall be a Lender or
another commercial bank or trust company reasonably acceptable to the
Borrower organized or licensed under the laws of the United States, or of any
State thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be Lender or
shall be another commercial bank or trust company organized or licensed under
the laws of the United States or of any State thereof reasonably acceptable
to the Borrower. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent and the execution and delivery by the Borrower and the
successor Administrative Agent of an agreement relating to the fees to be
paid to the successor Administrative Agent under Section 2.02(b) hereof in
connection with its acting as Administrative Agent hereunder, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement, any Note or any Security Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive, modify or eliminate any of the
conditions specified in Article V, (b) increase the Commitment of any Lender
hereunder or increase the Commitments of the Lenders that may be maintained
hereunder or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Notes, any Applicable Margin or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder (other than fees payable to the Administrative
Agent pursuant to Section 2.02(b) hereof), (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders which shall be required for the Lenders or any of them to
take any action hereunder, (f) amend this Agreement, any Note or any Security
Document in a manner intended to prefer one or more Lenders over any other
Lenders, (g) amend this Section 10.01, or 1. release all or substantially all
of the Collateral otherwise than in accordance with the provisions for such
release contained in the Security Documents, or change any provision of any
Security Document providing for the release of all or substantially all of
the Collateral; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition
to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note.
SECTION 10.02 Notices, Etc. Except as otherwise provided in
Section 3.03 hereof, all notices and other communications provided for
hereunder and under the other Loan Documents shall be in writing (including
telegraphic, telex, telecopy or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered, (i) if to the Borrower, at its
address at 1000 Elm Street, Manchester, New Hampshire 03105 (telecopy no.
603.669.2438), Attention: Treasurer, with a copy to Northeast Utilities
Service Company at its address at 107 Selden Street, Berlin, Connecticut
06037 (telecopy no. 203.665.5457), Attention: Assistant Treasurer; (ii) if
to any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; (iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment pursuant to which it became
a Lender; and (iv) if to the Administrative Agent, at its address at 140 East
45th Street, New York, New York 10017, Attention: Janet Belden; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied or cabled, be effective
five days after when deposited in the mails, or when delivered to the
telegraph company, confirmed by telex answerback, telecopied or delivered to
the cable company, respectively, except that notices and communications to
the Administrative Agent pursuant to Article II, III, IV or IX shall not be
effective until received by the Administrative Agent. With respect to any
telephone notice given or received by the Administrative Agent pursuant to
Section 3.03 hereof, the records of the Administrative Agent shall be
conclusive for all purposes.
SECTION 10.03 No Waiver of Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 10.04 Costs, Expenses and Indemnification. (a) The Borrower
agrees to pay when due, in accordance with the terms hereof, all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), of (i) the Administrative Agent and CSI in connection with the
preparation, negotiation, execution and delivery of the Loan Documents and
the administration of the Loan Documents, the care and custody of any and all
collateral, and any proposed modification, amendment, or consent relating
thereto; and (ii) the Administrative Agent, CSI and each Lender in connection
with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes or any other Loan Document.
(b) The Borrower hereby agrees to indemnify and hold each Lender, CSI,
the Administrative Agent and their respective officers, directors, employees,
professional advisors and affiliates (each, an "Indemnified Person") harmless
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable attorney's fees and expenses, whether or not
such Indemnified Person is named as a party to any proceeding or
investigation or is otherwise subjected to judicial or legal process arising
from any such proceeding or investigation) which any of them may incur or
which may be claimed against any of them by any person or entity (except to
the extent such claims, damages, losses, liabilities, costs or expenses arise
from the gross negligence or willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution, delivery or
performance of any of the Loan Documents or any transaction contemplated
thereby, or the use by the Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of the Borrower
or any of its Affiliates at any time and in any place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution
and delivery of any of the Loan Documents.
(c) The Borrower's obligations under this Section 10.04 shall survive
the assignment by any Lender pursuant to Section 10.07 and shall survive as
well the repayment of all amounts owing to the Lenders and the Administrative
Agent under the Loan Documents and the termination of the Commitment of any
Lender and the termination of the Commitments. If and to the extent that the
obligations of the Borrower under this Section 10.04 are unenforceable for
any reason, the Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
SECTION 10.05 Right of Set-off. (a) Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 8.02 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 8.02, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations hereunder, and that
the obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of the
Borrower's rights to any independent claim that the Borrower may have against
the Administrative Agent or any Lender, but no Lender shall be liable for the
conduct of the Administrative Agent or any other Lender, and the
Administrative Agent shall not be liable for the conduct of any Lender.
SECTION 10.06 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender and
their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 10.07 Assignments and Participation. (a) Each Lender may
assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement, the Notes and the Security Documents
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it) with the prior written
consent of the Borrower to the extent the assignee thereunder is not then a
Lender or an Affiliate of a Lender (which consent shall not be unreasonably
withheld); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement, (ii) to the extent the assignee
thereunder is not then a Lender or an Affiliate of a Lender, the amount of
the Commitment or Note of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Lender Assignment with
respect to such assignment) shall in no event be less than the lesser of the
amount of such Lender's Commitment and $3,000,000, and (iii) the parties to
each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, a Lender Assignment,
together with any Note or Notes subject to such assignment and a processing
and recordation fee of $2,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Lender
Assignment, which effective date shall be at least five Business Days after
the execution thereof, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Lender Assignment, have the rights and obligations of
a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it to an
assignee pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of a
Lender Assignment covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto); provided, however, if an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have declared
all Advances to be immediately due and payable hereunder a Lender may assign
all or a portion of its rights and obligations without the prior written
consent of the Borrower but otherwise in accordance with this Section.
(b) By executing and delivering a Lender Assignment, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as
provided in such Lender Assignment, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other
instrument or document furnished pursuant thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of each Loan Document, together
with copies of the financial statements referred to in Section 6.01(e) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Lender Assignment;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement, the Notes and the Security Documents; (v) such assignee
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement, the Notes and
the Security Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this Agreement,
the Notes and the Security Documents are required to be performed by it as a
Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 10.02 a copy of each Lender Assignment delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Lender Assignment has
been completed and is in substantially the form of Exhibit 10.07 hereto,
(i) accept such Lender Assignment, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Lender Assignment and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or Notes shall be
in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Lender Assignment and shall otherwise be in substantially the form of
Exhibit 1.01A or Exhibit 1.01B hereto, as the case may be.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the
Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and (v) the holder of
any such participation, other than an Affiliate of such Lender, shall not be
entitled to require such Lender to take or omit to take any action hereunder,
except action (A) extending the time for payment of interest on, or the final
maturity of any portion of the principal amount of, the Notes, (B) reducing
the principal amount of or the rate of interest payable on the Notes or
(C) releasing all or substantially all of the Collateral otherwise than in
accordance with the provisions for such release contained in the Security
Documents.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.07,
disclose to the assignee or participant or proposed assignee or participant,
any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree, in
accordance with the terms of Section 10.08, to preserve the confidentiality
of any Confidential Information received by it from such Lender.
(g) If any Lender shall have delivered a notice to the Administrative
Agent described in Section 4.03(a), (b), (c) or (f) hereof, or shall become a
non-performing Lender under Section 3.04(b) hereof, and if and so long as
such Lender shall not have withdrawn such notice or corrected such non-
performance in accordance with Section 3.04(b), the Borrower or the
Administrative Agent may demand that such Lender assign in accordance with
Section 10.07 hereof, to one or more assignees designated by either the
Borrower or the Administrative Agent (and reasonably acceptable to the
other), all (but not less than all) of such Lender's Commitment, Advances,
participation and other rights and obligations hereunder; provided that any
such demand by the Borrower during the continuance of an Event of Default or
an Unmatured Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the Administrative
Agent or the Borrower, any such assignee so designated shall fail to tender
such assignment on terms reasonably satisfactory to the Lender, or the
Borrower and the Administrative Agent shall have failed to designate any such
assignee, then such demand by the Borrower or the Administrative Agent shall
become ineffective, it being understood for purposes of this provision that
such assignment shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled to tender
such assignment forthwith, if such assignee (1) shall agree to such
assignment in substantially the form of the Lender Assignment and (2) shall
tender payment to such Lender in an amount equal to the full outstanding
dollar amount accrued in favor of such Lender hereunder (as computed in
accordance with the records of the Administrative Agent.)
(h) Anything in this Section 10.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.08 Confidentiality. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower
has furnished and will from time to time furnish to the Administrative Agent
and the Lenders (each, a "Recipient") written information which is identified
to the Recipient when delivered as confidential (such information, other than
any such information which (i) was publicly available, or otherwise known to
the Recipient, at the time of disclosure, (ii) subsequently becomes publicly
available other than through any act or omission by the Recipient or
(iii) otherwise subsequently becomes known to the Recipient other than
through a Person whom the Recipient knows to be acting in violation of his or
its obligations to the Borrower, being hereinafter referred to as
"Confidential Information"). The Recipient will not knowingly disclose any
such Confidential Information to any third party (other than to those persons
who have a confidential relationship with the Recipient), and will take all
reasonable steps to restrict access to such information in a manner designed
to maintain the confidential nature of such information, in each case until
such time as the same ceases to be Confidential Information or as the
Borrower may otherwise instruct. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so exchange
Confidential Information shall be conditioned upon any such prospective
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not
prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or (iii) otherwise, as required by law; in the event of any
required disclosure under clause (ii) or (iii), above, the Recipient agrees
to use reasonable efforts to inform the Borrower as promptly as practicable.
SECTION 10.09 Certain Authorizations and Consent. Each Bank by its
acceptance hereof, and each other Lender by its execution and delivery of the
Lender Assignment pursuant to which it became a Lender, consents to,
authorizes, ratifies and confirms in all respects:
(i) the execution, delivery, acceptance and performance by the
Administrative Agent and by the Collateral Agent of the Collateral
Agency Agreement, as the same may be from time to time amended in
accordance with the terms thereof;
(ii) the execution, delivery and acceptance by the Collateral Agent
of, and the taking by the Collateral Agent of all actions under, the
Security Documents, as the same may be from time to time amended in
accordance with Section 10.01 hereof, and any and all documents that may
from time to time after the date hereof constitute Security Documents;
and
(iii) that, the Collateral Agency Agreement shall supersede the
Existing Collateral Agency Agreement and Bankers Trust Company shall be
replaced as Collateral Agent under the Existing Collateral Agency
Agreement by Chemical as successor Collateral Agent under the Collateral
Agency Agreement;
the execution and delivery of this Agreement by such Bank, or the execution
and delivery of such Lender Assignment by such Lender, as the case may be,
constituting (without further act or deed) such Bank's or Lender's, as the
case may be, acceptance and approval of, and agreement to the terms of, the
Collateral Agency Agreement and the other Security Documents.
SECTION 10.10 Waiver of Jury Trial. The Borrower, the Administrative
Agent, and the Lenders each hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of or relating to
this Agreement or any other Loan Document, or any other instrument or
document delivered hereunder or thereunder.
SECTION 10.11 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Borrower, the Lenders and the Administrative Agent each
(i) irrevocably submits to the jurisdiction of any New York State Court or
Federal court sitting in New York City in any action arising out of any Loan
Document, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service of process
by mail. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 10.12 Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document,
or actions taken or to be taken by any party thereunder, shall be construed
to create a partnership, association, or joint venture between such parties
or any of them. No term or provision of the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege to, any
Person other than the parties hereto.
SECTION 10.13 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
CHEMICAL BANK,
as Administrative Agent
By /s/ Jane Ritchie
Name: Jane Ritchie
Title: Vice President
Commitment Lender
$10,000,000.00 CHEMICAL BANK
By /s/ Jane Ritchie
Name: Jane Ritchie
Title: Vice President
Commitment Lender
$8,888,888.89 BANK OF AMERICA ILLINOIS
By /s/ Felipe A. Gomez
Name: Felipe A. Gomez
Title: Authorized Officer
Commitment Lender
$8,888,888.89 CITIBANK, N.A.
By /s/ Paul T. Addison
Name: Paul T. Addison
Title: Attorney In Fact
Commitment Lender
$8,888,888.89 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior Vice President
Commitment Lender
$8,888,888.89 THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Norobu Kubota
Name: Noboru Kubota
Title: Deputy General Manager
Commitment Lender
$4,444,444.44 FLEET NATIONAL BANK
By /s/ Suresh Chivukula
Name: Suresh Chivukula
Title: Vice President
Commitment Lender
$4,444,444.44 THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By /s/ Gina Kearns
Name: Gina Kearns
Title: Vice President & Manager
Commitment Lender
$4,444,444.44 THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By /s/ Robert W. Ramage, Jr.
Name: Robert W. Ramage, Jr.
Title: Senior Vice President
Commitment Lender
$4,444,444.44 MELLON BANK, N.A.
By /s/ Jocelin Reed
Name: Jocelin Reed
Title: Officer
Commitment Lender
$4,444,444.44 THE NIPPON CREDIT BANK, LTD.
By /s/ Yoshihide Watanabe
Name: Yoshihide Watanabe
Title: Vice President and Manager
Commitment Lender
$8,888,888.89 CIBC INC.
By /s/ Margaret E. McTigue
Name: Margaret E. McTigue
Title: Director
Commitment Lender
$8,888,888.89 TORONTO DOMINION (NEW YORK),
INC.
By /s/ Debbie A. Greene
Name: Debbie A. Greene
Title: Vice President
Commitment Lender
$3,333,333.33 BARCLAYS BANK PLC
By /s/ Sydney G. Dennis
Name: Sydney G. Dennis
Title: Director
Commitment Lender
$3,333,333.33 THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Madeline N. Pember
Name: Madeline N. Pember
Title: Corporate Banking Officer
Commitment Lender
$4,444,444.44 THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH
By /s/ Y. Kobayashi
Name: Y. Kobayashi
Title: Deputy General Manager
Commitment Lender
$3,333,333.33 THE FIRST NATIONAL BANK
OF BOSTON
By /s/ Frank T. Smith
Name: Frank T. Smith
Title: Director
SCHEDULE I
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
U.S. $100,000,000 REVOLVING CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Eurodollar
Name of Bank Domestic Lending Office Lending Office
Chemical Bank 140 East 45th Street 140 East 45th Street
New York, NY 10017 New York, NY 10017
Bank America Illinois 231 South LaSalle Street 231 South LaSalle
Street
Chicago, IL 60697 Chicago, IL 60697
Citibank, N.A. One Court Square One Court Square
7th Floor, Zone 2 7th Floor, Zone 2
Long Island City, NY 11120 Long Island City, NY
11120
Credit Lyonnais, New Credit Lyonnais Building Credit Lyonnais
York Branch 1301 Avenue of the Americas Building
New York, NY 10019 1301 Avenue of the
Americas
New York, NY 10019
The Long-Term Credit 165 Broadway 165 Broadway
Bank of Japan, Limited, New York, NY 10006 New York, NY 10006
New York Branch
Fleet National Bank 1 Federal Street 1 Federal Street
Boston, MA 02211 Boston, MA 02211
The Fuji Bank, Limited, Two World Trade Center Two World Trade Center
New York Branch New York, NY 10048 New York, NY 10048
The Industrial Bank of 245 Park Avenue, 23rd Floor 245 Park Avenue, 23rd
Japan Trust Company New York, NY 10167 Floor
New York, NY 10167
Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank
Pittsburgh, PA 15259-0003 Center
Pittsburgh, PA 15259-0003
The Nippon Credit Bank, 245 Park Avenue, 30th Floor 245 Park Avenue, 30th
Ltd. New York, NY 10167 Floor
New York, NY 10167
CIBC Inc. Two Paces West Two Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Toronto Dominion 900 Fannin, Suite 1700 900 Fannin, Suite 1700
(New York), Inc. Houston, TX 77010 Houston, TX 77010
Barclays Bank PLC 222 Broadway, 11th Floor 222 Broadway, 11th
New York, NY 10038 Floor
New York, NY 10038
The First National Bank of One First National Plaza One First
Chicago Chicago, IL 60670 National Plaza
Chicago, IL 60670
The Yasuda Trust & 666 Fifth Avenue, Suite 801 666 Fifth Avenue,
Banking Company, New York, NY 10103 Suite 801
Limited, New York Branch New York NY 10103
First National Bank of 100 Federal Street 100 Federal Street
Boston Boston, MA 02106 Boston, MA 02106
EXECUTION COPY
PSNH MORTGAGE AMENDMENT
FIRST AMENDMENT TO MORTGAGE,
ASSIGNMENT, SECURITY AGREEMENT
AND FINANCING STATEMENT
This FIRST AMENDMENT ("First Amendment to Mortgage") dated as
of April 1, 1996 to the Mortgage (as defined below) is made between PUBLIC
SERVICE COMPANY OF NEW HAMPSHIRE, a New Hampshire corporation,
as mortgagor, assignor and debtor hereunder ("Grantor") and CHEMICAL
BANK, a banking corporation organized under New York law, with a mailing
address of 140 East 45th Street, New York, NY 10017, Attention: Loan
Servicing, as Collateral Agent for the Secured Parties named therein under
that certain Amended and Restated Collateral Agency Agreement, dated as of
April 1, 1996, among Grantor and Chemical Bank, as Collateral Agent and as
Administrative Agent under the Revolving Credit Agreements referred to below
(said Amended and Restated Collateral Agency Agreement, as it may be further
amended, modified or supplemented from time to time, the "Amended and
Restated Collateral Agency Agreement"), and as mortgagee, assignee and
secured party under the Mortgage and this First Amendment to Mortgage.
PRELIMINARY STATEMENTS:
1. That certain Mortgage, Assignment, Security Agreement and
Financing Statement (the "Mortgage"), dated as of May 1, 1991, given by
Grantor as mortgagor, assignor and debtor thereunder, to BANKERS TRUST
COMPANY, Four Albany Street, New York, NY 10015, as Collateral Agent (as
such agency office is described in the Mortgage) and as mortgagee, assignee
and secured party, was recorded on May 16, 1991 in each Registry of Deeds in
New Hampshire as follows:
Registry of Deeds Book Page
Belknap 1170 679
Carroll 1447 537
Cheshire 1367 549
Coos 778 392
Grafton 1909 321
Hillsborough 5255 1185
Merrimack 1859 1005
Rockingham 2876 677
Strafford 1554 1
Sullivan 938 305
2. Chemical Bank is the successor to Bankers Trust Company as
Collateral Agent under the Amended and Restated Collateral Agency Agreement
and as mortgagee, assignee, and secured party under the Mortgage (reference
being made to the Replacement of Collateral Agent, Together with Assignment
by Mortgagee, Assignee and Secured Party that is being recorded at near or
even date with this First Amendment to Mortgage).
3. Chemical Bank, as such Collateral Agent, together with any
successor Collateral Agent, and as mortgagee, assignee, and secured party
under the Mortgage and this First Amendment to Mortgage, is hereinafter
referred to as the "Mortgagee."
4. The Grantor previously entered into (i) a Revolving Credit
Agreement, dated as of May 1, 1991, among Grantor, Bankers Trust Company,
Chemical Bank and Citibank, N.A., as Co-Agents, and Chemical Bank as
Administrative Agent and the lenders from time to time party thereto, as
amended by the First Amendment to the Revolving Credit Agreement, dated as
of May 11, 1994, among the parties to the Revolving Credit Agreement (as so
amended, being hereinafter referred to as the "Existing Revolving Credit
Agreement") and (ii) a Term Credit Agreement, dated as of May 1, 1991,
among Grantor, Bankers Trust Company, Chemical Bank and Citibank, N.A.
as Co-Agents, and Citibank, N.A. as Administrative Agent and the lenders from
time to time party thereto (the "Term Credit Agreement").
5. The Existing Revolving Credit Agreement has been (i) amended
and restated as the Amended and Restated Revolving Credit Agreement, dated
as of April 1, 1996 (the "Amended and Restated Revolving Credit Agreement"),
among Grantor, Chemical Bank as Administrative Agent and the Banks named
therein and the other Lenders thereunder, and (ii) separately supplemented
and added to by that certain 364-Day Revolving Credit Agreement, dated as of
April 1, 1996 (the "364-Day Revolving Credit Agreement"), among Grantor,
Chemical Bank as Administrative Agent, and the Banks named therein and the
other Lenders thereunder (said revolving credit agreements, as they may be
amended, modified or supplemented from time to time, the "Revolving Credit
Agreements," and said Banks and Lenders and any Lenders that may hereafter
become parties to either or both of the Revolving Credit Agreements,
collectively, the "Lenders" and individually a "Lender").
6. The Term Credit Agreement has terminated, with all obligations
previously outstanding thereunder having been paid in full by Grantor.
7. Pursuant to the Revolving Credit Agreements, the Lenders have
agreed to make principal advances to Grantor in an aggregate principal amount
up to but not exceeding Two Hundred Twenty-Five Million and No/100 U.S.
Dollars ($225,000,000).
8. The total indebtedness and liabilities to be secured by the
Mortgage, as amended by this First Amendment to Mortgage, amount to the
sum of the following (such indebtedness and liabilities or the instruments
evidencing the same, as applicable, being hereinafter collectively called the
"Obligations"):
(i) the aggregate principal of all advances made and to be
made by the Lenders under the Revolving Credit Agreements; plus
(ii) interest on the principal amount of all advances made and
to be made by the Lenders under the Revolving Credit Agreements, as
provided in the Revolving Credit Agreements; plus
(iii) all other amounts payable and all other obligations of
Grantor under the Revolving Credit Agreements, the other Loan
Documents referred to therein, the Mortgage, this First Amendment to
Mortgage, and any other document which relates to any of the Revolving
Credit Agreements or such other Loan Documents or any of the security
therefor, in each case as the same may be amended, modified or
supplemented from time to time (the "Mortgage Documents").
9. As a condition precedent to the obligations of the Lenders to
make advances under the Revolving Credit Agreements, the Lenders have
required Grantor to execute and deliver the Loan Documents referred to
therein (the "Loan Documents"), including this First Amendment to Mortgage
and the Amended and Restated Collateral Agency Agreement, pursuant to which
the Mortgagee has agreed to act as collateral agent for the Lenders.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Grantor and Mortgagee hereby agree as follows:
1. Effective as of April 30, 1996 (the "Effective Date"), the
penultimate "WHEREAS" clause appearing on page 3 of the Mortgage is
deleted in its entirety.
2. The Mortgage is, effective as of the Effective Date, beginning
with the first paragraph immediately following the caption "GRANTING
CLAUSE" appearing on page 3 of the Mortgage and continuing throughout the
remaining pages of the Mortgage, amended as follows:
(a) The term "Obligations," as defined in Preliminary
Statement 8 of this First Amendment to Mortgage, shall replace the term
"Obligations" wherever it so appears.
(b) The term "Revolving Credit Agreements," as defined in
Preliminary Statement 5 of this First Amendment to Mortgage, shall replace
the term "Credit Agreements" wherever it so appears.
(c) The term "Mortgagee" wherever it so appears shall refer
to Chemical Bank, as Collateral Agent under the Amended and Restated
Collateral Agency Agreement, together with any successor Collateral Agent.
(d) The term "Amended and Restated Collateral Agency
Agreement," as defined in the first paragraph of this First Amendment to
Mortgage, shall replace the term "Collateral Agency Agreement," wherever it
so appears (and all references to any term defined in the Collateral Agency
Agreement, wherever any such reference so appears, shall be to the term as
defined in the Amended and Restated Collateral Agency Agreement).
(e) The term "Mortgage Documents," as defined in
Preliminary Statement 8(iii) of this First Amendment to Mortgage, shall
replace the term "Mortgage Documents," wherever it so appears.
(f) The term "Loan Documents," as defined in Preliminary
Statement 9 of this First Amendment to Mortgage, shall replace the term "Loan
Documents" wherever it so appears, except that the term "Mortgage
Documents," as defined in Preliminary Statement 8(iii) shall replace the term
"Loan Documents" as used in the first paragraph on page 3 of the Mortgage
immediately following the caption "GRANTING CLAUSE".
(g) All references to "Secured Swap Agreements" and
"Secured Swap Agreement" are deleted wherever either term so appears, and
Schedule E of the Mortgage is deleted.
(h) The term "Lenders," as defined in Preliminary Statement
5 of this First Amendment to Mortgage, shall replace the term "Lenders"
wherever it so appears.
3. As of the Effective Date, the sentence which reads, "For purposes
of New Hampshire Rev. Stat. Anno. 479:3 this Mortgage secures indebtedness
up to the maximum amount of Two Billion Dollars ($2,000,000,000).", as such
sentence appears on the recorded cover page of the Mortgage, is deleted in
its entirety, and the sentence which reads, "FOR PURPOSES of New Hampshire
Rev. Stat. Anno. 479:3 this Mortgage secures the obligations up to the
maximum amount of Two Billion U.S. Dollars ($2,000,000,000).", as such
sentence appears on page 9 of the Mortgage, is deleted in its entirety.
4. As of the Effective Date, the term "Closing Date," as defined in
the Revolving Credit Agreements, shall replace the term "Funding Date" as it
appears in Section 1.01 of the Mortgage.
5. As of the Effective Date, the penultimate sentence in Section
4.01 of the Mortgage is amended to read as follows: "For purposes of this
Mortgage, the "Default Rate" shall be a rate equal to the lesser of (i) the
rate described in Section 3.06(c) of the Amended and Restated Revolving
Credit Agreement or, if higher, the rate described in Section 3.06(c) of the
364-Day Revolving Credit Agreement and (ii) the maximum rate of interest
permitted by law from time to time."
6. As of the Effective Date, the term "Agents" in the tenth line of
Section 5.05 of the Mortgage is replaced by the term "Administrative Agent."
7. As of the Effective Date, in Section 8.04 of the Mortgage the
name and address for any notice to Mortgagee is changed to read as follows:
"If to Mortgagee: Chemical Bank
140 East 45th Street
New York, NY 10017
Attention: Loan Servicing"
8. As of the Effective Date, in Schedule A to the Mortgage, the
definition of "Board of Directors" is amended to read as follows: "Board of
Directors' shall mean the Board of Directors of Grantor or any committee of
such Board of Directors authorized to exercise the powers of the Board of
Directors."
9. As of the Effective Date, in Schedule C to the Mortgage,
subclause (a) is amended to read as follows:
"(a) the lien of the Indenture, the lien of this Mortgage and all
liens and encumbrances junior to the lien of the Indenture
and the lien of this Mortgage."
10. As of the Effective Date, Section B of Schedule B of the
Mortgage, which is captioned "Property Descriptions and Exceptions", is
supplemented by adding thereto references to certain descriptions of certain
properties acquired in fee simple by Grantor since May 1, 1991, which
properties constitute a portion of the Premises (as defined in the Mortgage)
and are subject to the lien of the Mortgage and this First Amendment to
Mortgage.
Such references are as set forth on Attachment 1 to this First Amendment to
Mortgage, which Attachment 1 is hereby incorporated into and made a part of
Section B of Schedule B of the Mortgage. Also, to the extent any
municipalities listed on Attachment 1 are not included in the catalog of
municipalities on page 5 and 6 of the Mortgage, such catalog is amended as of
the Effective Date by adding the names of any such municipalities under the
appropriate county.
11. Except as amended and modified by this First Amendment to
Mortgage, the Mortgage shall continue in full force and effect. The Mortgage
and this First Amendment to Mortgage shall be read, taken and construed as
one and the same instrument.
12. Grantor hereby ratifies and confirms its grant, pledge and
assignment made to Mortgagee pursuant to the Mortgage.
13. This First Amendment to Mortgage may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and
the same instrument.
14. This First Amendment to Mortgage shall be governed by and
construed in accordance with the laws of the State of New Hampshire.
IN WITNESS WHEREOF, the parties have caused this First Amendment
to Mortgage to be executed and delivered as of the date first above written.
[Execute in black ink] PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
Witness to Execution:
By: /s/
Name: Name:
Title:
[Execute in black ink] CHEMICAL BANK,
as Collateral Agent
Witness to Execution:
By: /s/
Name: Name:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this ______ day
of , 1996, by ,
of Public Service Company of New Hampshire, a New
Hampshire corporation, on behalf of the corporation.
[Execute in black ink]
Notary Public /s/
My commission Expires:
(Notarial Seal)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this ______ day
of , 1996, by ,
of Chemical Bank, a banking corporation organized under
the laws of New York, on behalf of the corporation.
[Execute in black ink]
Notary Public /s/
My commission Expires:
(Notarial Seal)
ATTACHMENT 1
TO FIRST AMENDMENT TO MORTGAGE
Section B of Schedule B of the Mortgage, without limiting the generality of
the provisions of Section A of said Schedule B, is supplemented by adding
thereto references to the following deeds and conveyances. Such deeds and
conveyances are recorded in the Registry of Deeds for the County in New
Hampshire indicated and contain descriptions of certain properties located
in the municipalities indicated and acquired in fee simple by Grantor since
May 1, 1991, which properties constitute a portion of the Premises (as
defined in the Mortgage) and are subject to the lien of the Mortgage:
Date Recording Data Municipality
Grantor of Deed Book Page and County
State Street Bank and 1/22/93 5412 1615 Nashua and
Trust Company, as Peterborough/
Trustee of the Pension Hillsborough
Plan of Public Service
Company of New Hampshire
State Street Bank and 1/22/93 1242 968
Gilford/Belknap
Trust Company, as
Trustee of the Pension
Plan of Public Service
Company of New Hampshire
State Street Bank and 1/22/93 1909 1736 Pittsfield/
Trust Company, as Merrimack
Trustee of the Pension
Plan of Public Service
Company of New Hampshire
Russell L. Marcum and 10/14/93 5482 1020 Hudson/
Marie A. Marcum Hillsborough
Kevin Bujnowski and 11/10/93 5491 459 Hudson/
Teresa Bujnowski Hillsborough