Exhibit 10.50
MASTER LEASE AGREEMENT
Dated as of
June 21, 1996
Between
GENERAL ELECTRIC CAPITAL CORPORATION,
FOR ITSELF AND AS AGENT FOR CERTAIN PARTICIPANTS,
Lessor
and
THE CONNECTICUT LIGHT AND POWER COMPANY,
Lessee
MASTER LEASE AGREEMENT
TABLE OF CONTENTS
Page
I. LEASING: 1
II. TERM, RENT AND PAYMENT 1
III. TAXES 2
IV. REPORTS 2
V. DELIVERY, USE AND OPERATION 3
VI. SERVICE 3
VII. STIPULATED LOSS VALUE 4
VIII. LOSS OR DAMAGE 4
IX. INSURANCE 4
X. RETURN OF EQUIPMENT 5
XI. DEFAULT 5
XII. ASSIGNMENT 7
XIII. NET LEASE; NO SET-OFF, ETC. 7
XIV. INDEMNIFICATION 8
XV. DISCLAIMER 9
XVI. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE 10
XVII. OWNERSHIP FOR TAX PURPOSES; GRANT OF SECURITY INTEREST; USURY
SAVINGS 14
XVIII. END OF LEASE OPTIONS 15
(a) Renewal 15
(b) Return 15
(c) Purchase 15
(d) Notice of Election 16
XIX. MISCELLANEOUS 16
XX: CHOICE OF LAW; JURISDICTION 18
XXI: CHATTEL PAPER 18
EXHIBIT NO. 1 - EQUIPMENT SCHEDULE
ANNEX A - DESCRIPTION OF EQUIPMENT
ANNEX B - PURCHASE ORDER ASSIGNMENT AND CONSENT
ANNEX C - CERTIFICATE OF ACCEPTANCE
ANNEX D - STIPULATED LOSS VALUE TABLE
ANNEX E - AMORTIZATION SCHEDULE
ANNEX F - RETURN PROVISIONS
ANNEX G - ESTOPPEL/WAIVER AGREEMENT
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of June 21, 1996 ("Agreement"),
between GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT FOR
CERTAIN PARTICIPANTS, with an office at 303 International Circle, Suite 300,
Hunt Valley, Maryland 21031 (hereinafter called, together with its successors
and assigns, if any, "Lessor"), and THE CONNECTICUT LIGHT AND POWER COMPANY,
a Connecticut corporation with its mailing address and chief place of
business at 107 Selden Street, Berlin, Connecticut 06037-1616 (hereinafter
called "Lessee").
WITNESSETH:
I. LEASING:
(a) This Agreement shall be effective from and after the date of
execution hereof. Subject to the terms and conditions set forth below,
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the
equipment ("Equipment") described in Annex A to any schedule hereto
("Schedule"). Terms defined in a Schedule and not otherwise defined herein
shall have the meanings ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase the Equipment from the
manufacturer or supplier thereof ("Supplier") and to lease the same to Lessee
under any Schedule shall be subject to receipt by Lessor, prior to the Lease
Commencement Date (with respect to such Equipment), of each of the following
documents in form and substance satisfactory to Lessor: (i) a Schedule
relating to the Equipment then to be leased hereunder, (ii) a Purchase Order
Assignment and Consent in the form of Annex B to the applicable Schedule,
unless Lessor shall have delivered its purchase order for such Equipment,
(iii) evidence of insurance which complies with the requirements of Section
IX; (iv) an opinion of counsel for Lessee in form and substance satisfactory
to Lessor; (v) certified resolutions of Lessee's Board of Directors in form
and substance satisfactory to Lessor; (vi) an Estoppel/Waiver Agreement in
the form of Annex G to the applicable Schedule; and (vii) such other
documents as Lessor may reasonably request. As a further condition to such
obligations of Lessor, Lessee shall, upon delivery of such Equipment (but not
later than the Last Delivery Date specified in the applicable Schedule)
execute and deliver to Lessor a Certificate of Acceptance (in the form of
Annex C to the applicable Schedule) covering such Equipment, and deliver to
Lessor a bill of sale therefor (in form and substance satisfactory to
Lessor). Lessor hereby appoints Lessee its agent for inspection and
acceptance of the Equipment from the Supplier. Upon execution by Lessee of
any Certificate of Acceptance, the Equipment described thereon shall be
deemed to have been delivered to, and irrevocably accepted by, Lessee for
lease hereunder.
(c) This Agreement and the obligations of Lessee hereunder are in no way
contingent upon Lessee obtaining any authorizations or approvals from any
Federal or state regulatory authority to enter into and perform under this
Agreement, or upon Lessee recovering from its customers any Rents or other
payments arising hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder (the "Rent") and Lessee's right to use
the Equipment shall commence on the date of execution by Lessee of the
Certificate of Acceptance for such Equipment ("Lease Commencement Date").
The Term of this Agreement (the "Term") shall be the period specified in the
applicable Schedule. If any Term is extended, the word "Term" shall be
deemed to refer to all extended terms, and all provisions of this Agreement
shall apply during any extended terms, except as may be otherwise
specifically provided in writing.
(b) Rent shall be paid to Lessor by wire transfer of immediately
available funds to: Bankers Trust New York, New York, New York 10006,
Account No. 50-202-962, ABA No. 021-001-033, or to such other account as
Lessor may direct in writing; and shall be effective upon receipt. Payments
of Rent shall be in the amount set forth in, and due in accordance with, the
provisions of the applicable Schedule. In no event shall any Rent payments
be refunded to Lessee. If Rent is not paid within three (3) days of its due
date, Lessee agrees to pay a late charge of Five Cents ($0.05) per dollar on,
and in addition to, the amount of such Rent but not exceeding the lawful
maximum, if any.
III. TAXES:
Lessee shall have no liability for taxes imposed by the United States of
America or any State or political subdivision thereof which are on or
measured by the net income of Lessor. Lessee shall report (to the extent
that it is legally permissible) and pay promptly all other taxes, fees,
charges and assessments due, imposed, assessed or levied against any
Equipment (or the purchase, ownership, delivery, leasing, possession, use or
operation thereof), this Agreement (or any rentals or receipts hereunder),
any Schedule, Lessor or Lessee by any foreign, Federal, state or local
government or regulatory or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and registration
fees, and all sales, use, personal property, excise, gross receipts, gas,
petroleum or other fuel use or import, franchise, stamp or other taxes,
imposts, duties and charges, together with any penalties, fines or interest
thereon (all hereinafter called "Taxes"). Lessee shall (i) reimburse Lessor
upon receipt of written request for reimbursement for any Taxes charged to or
assessed against Lessor, (ii) on request of Lessor, submit to Lessor written
evidence of Lessee's payment of Taxes, (iii) on all reports or returns show
the ownership of the Equipment by Lessee to the extent that it is legally
permissible, and (iv) send a copy thereof to Lessor.
IV. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days after (1)
any tax or other lien shall attach to any Equipment and (2) after Lessee has
knowledge of any Environmental Claim or Environmental Loss (as such terms are
hereinafter defined) with respect to or affecting in any manner the
Equipment, of the full particulars thereof, of the location of such Equipment
on the date of such notification, and of the remediation action to be
undertaken by Lessee and the timing thereof.
(b) Lessee will deliver to Lessor, within ninety (90) days of the close
of each fiscal year of Lessee, Lessee's balance sheet and profit and loss
statement, prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied, certified by a recognized firm of
certified public accountants, together with the Form 10K of Lessee and of
Northeast Utilities ("NU") filed with the Securities and Exchange Commission
("SEC"). Lessee will deliver to Lessor quarterly, within ninety (90) days of
the close of each fiscal quarter of Lessee, in reasonable detail, copies of
Lessee's quarterly financial report certified by the chief financial officer
of Lessee, together with the Form 10Q of Lessee and of NU filed with the SEC.
Lessee will deliver to Lessor, promptly after the date on which they are
filed with the SEC, all Form 8K reports filed with the SEC by Lessee or NU.
In addition, Lessee will deliver to Lessor quarterly, within fifty (50) days
of the close of each fiscal quarter of Lessee a certificate executed by the
chief financial officer of Lessee, certifying as to compliance with the
covenants set forth in Sections XVI (a)(9) and (10) hereof as of the close of
the immediately preceding fiscal quarter, together with the computation of
such covenants. Lessee will deliver to Lessor, within fifteen (15) days
after its filing with the Federal Energy Regulatory Commission (the "FERC"),
a copy of Lessee's FERC Form 1. Lessee will deliver to Lessor, within ten
(10) days of filing, any submittals known to Lessee to have been made by any
person, including without limitation, Lessee and NU to the FERC, the SEC, or
the Connecticut Department of Public Utility Control ("DPUC") the Connecticut
Department of Environmental Protection, the Nuclear Regulatory Commission
("NRC") and the Environmental Protection Agency ("EPA") (collectively or
individually "Regulatory Authorities" or "Regulatory Authority") that would
adversely affect Lessee's ability to perform hereunder including
installation, maintenance and operation of the Equipment, or subject Lessor
or the Participants (as hereinafter defined) to regulation by any Regulatory
Authority.
(c) Lessee will permit Lessor to inspect any Equipment, and all books
and records with respect to the operation and maintenance of the Equipment,
during normal business hours upon reasonable notice.
(d) Lessee will keep the Equipment at the Equipment Location (specified
in the applicable Schedule) in the State of Connecticut. Prior to any
proposed relocation of the Equipment by Lessee, Lessee shall provide Lessor
with ten (10) days' prior written notification of the date and place of such
relocation. Prior to such relocation, Lessee shall provide Lessor with such
reasonable assurances as may be requested by Lessor that such relocation will
not materially adversely affect the performance of any term of this
Agreement.
(e) Lessee will promptly and fully report to Lessor in writing if any
Equipment is lost or damaged (where the estimated repair costs would exceed
$5,000,000.00, or is otherwise involved in an accident causing personal
injury or property damage) (an "Unmatured Default").
(f) Within thirty (30) days after any request by Lessor, Lessee will
furnish a certificate of an authorized officer of Lessee stating that he has
reviewed the activities of Lessee and that, to the best of his knowledge,
there exists no Default (as hereinafter defined) or event which, with the
giving of notice or the lapse of time (or both), would become a Default.
V. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to
Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in
the conduct of its business and in a manner complying with (1) all applicable
Federal, state, and local laws and regulations, including without limitation
the Federal Power Act ("FPA"), 16 U.S.C. Section 791 et seq.; the Public
Utility Holding Company Act of 1935 ("PUHCA"), 15 U.S.C. Section 79 et seq.,
Conn. Gen. Stat. Chapters 277 and 283, and the Clean Air Act ("CAA"), 42
U.S.C. Section 7401 et seq., as amended, and governmental approvals, (2) any
applicable insurance policies, (3) all manufacturers' recommendations, and
(4) standard utility practices; and the Equipment shall not be taken out of
commercial operation in Lessee's business as a public utility (subject to all
requirements of Regulatory Authorities).
(c) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those (1) which result from acts of Lessor , or (2)
liens for fees, taxes, levies, duties or other governmental charges of any
kind, or of mechanics, materialmen, laborers, employees or suppliers and
similar liens arising by operation of law, in each case incurred by Lessee in
the ordinary course of business for sums that are not yet delinquent or are
being contested in good faith by negotiations or by appropriate proceedings
which suspend the collection thereof (provided, however, that such
proceedings do not involve any substantial danger (as determined in Lessor's
sole reasonable discretion) of the sale, forfeiture or loss of the Equipment
or any interest therein).
VI. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear excepted. Lessee shall,
if at any time reasonably requested by Lessor, affix in a prominent position
on each unit of Equipment plates, tags or other identifying labels showing
the interest therein of Lessor.
(b) Lessee will not, without the prior written consent of Lessor, affix
or install any accessory, equipment or device on any Equipment if such
addition will impair the value, originally intended function or use of such
Equipment. All additions, repairs, parts, supplies, accessories, equipment,
and devices furnished, attached or affixed to any Equipment which are not
readily removable shall be made only in compliance with applicable law, shall
be free and clear of all liens, encumbrances or rights of others, and shall
become the property of Lessor. Lessee will not, without the prior written
consent of Lessor and subject to such conditions as Lessor may impose for its
protection, affix or install any Equipment to or in any other personal
property.
(c) Any alterations or modifications to the Equipment that may, at any
time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessee.
VII. STIPULATED LOSS VALUE:
Lessee shall promptly and fully notify Lessor in writing if any unit of
Equipment shall be or become worn out, lost, stolen, destroyed, irreparably
damaged in the reasonable determination of Lessee, or permanently rendered
unfit for use from any cause whatsoever (such occurrences being hereinafter
called "Casualty Occurrences"). On the Rental Payment Date next succeeding a
Casualty Occurrence (the "Payment Date"), Lessee shall pay Lessor the sum of
(x) the Stipulated Loss Value of such unit calculated in accordance with
Annex D as of the Rent Payment Date next preceding such Casualty Occurrence
("Calculation Date"); and (y) all rental and other amounts which are due
hereunder as of the Payment Date. Upon payment of all sums due hereunder,
the Term as to such unit shall terminate and (except in the case of the loss,
theft or complete destruction of such unit) Lessee shall be entitled to
recover possession of such unit.
VIII. LOSS OR DAMAGE:
Lessee hereby assumes and shall bear the entire risk of any loss, theft,
damage to, or destruction of, any unit of Equipment from any cause whatsoever
(except such as may be caused by the gross negligence or willful misconduct
of Lessor) from the time the Equipment is shipped to Lessee.
IX. INSURANCE:
Lessee agrees, at its own expense, to keep all Equipment insured for
such amounts as specified in Paragraph D of the Equipment Schedule and
against such hazards as Lessor may require, including, but not limited to,
insurance for damage to or loss of such Equipment and liability coverage for
personal injuries, death or property damage, with Lessor named as additional
insured and with a loss payable clause in favor of Lessor, as its interest
may appear, irrespective of any breach of warranty or other act or omission
of Lessee. All such policies shall be with companies, and on terms,
satisfactory to Lessor. Lessee agrees to deliver to Lessor evidence of
insurance satisfactory to Lessor concurrently with execution of each Schedule
and annually thereafter. No insurance shall be subject to any co-insurance
clause. Lessee hereby appoints Lessor as Lessee's attorney-in-fact and
Lessor shall have the exclusive right to make proof of loss and claim for
insurance with respect to property damage, and to make adjustments with
insurers and to receive payment of and execute or endorse all documents,
checks or drafts in connection with payments made as a result of such
insurance policies. Any expense of Lessor in adjusting or collecting
insurance shall be borne by Lessee. Said policies shall provide that the
insurance may not be altered or canceled by the insurer until after thirty
(30) days' written notice to Lessor. Provided that no Default or Unmatured
Default has then occurred, the proceeds of insurance shall be applied to
repair or replace the Equipment or any portion thereof. If a Default or
Unmatured Default shall have occurred, Lessor may, at its option, apply
proceeds of insurance, in whole or in part, to (i) repair or replace the
Equipment or any portion thereof, or (ii) satisfy any obligation of Lessee to
Lessor hereunder.
X. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, unless Lessee shall have exercised its renewal option pursuant to
Section XVIII(a) hereof, or its purchase option pursuant to Section XVIII(c)
hereof, Lessee shall promptly, at its own cost and expense, comply with the
provisions of Annex F to the Schedule.
(b) Until Lessee has fully complied with the requirements of Paragraph
(a) above, Lessee's Rent payment obligation and all other obligations under
this Agreement shall continue from month to month notwithstanding any
expiration or termination of the Term. Lessor may terminate such continued
leasehold interest upon ten (10) days' notice to Lessee. In addition to
these Rents, Lessor shall have all of its other rights and remedies available
as a result of this nonperformance.
XI. DEFAULT:
(a) Lessor may in writing declare this Agreement in default ("Default")
if: (1) Lessee breaches its obligation to pay Rent or any other sum when due
and fails to cure the breach within three (3) days; (2) Lessee breaches any
of its insurance obligations under Section IX hereof; (3) any representation,
warranty or covenant made by Lessee in connection with the Agreement shall be
false or misleading in any material respect; (4) Lessee breaches any
representation, warranty or covenant contained in Section XVI hereof; (5)
Lessee becomes insolvent or ceases to do business as a going concern; (6) any
Equipment is illegally used; (7) a petition is filed by or against Lessee
under any bankruptcy or insolvency laws; (8) Lessee shall have terminated its
corporate existence, consolidated with, merged into, or conveyed or leased
substantially all of its assets as an entirety to any person (such actions
being referred to as an "Event"), unless not less than sixty (60) days prior
to such Event: (x) such person is organized and existing under the laws of
the United States or any state, and executes and delivers to Lessor an
agreement containing an effective assumption by such person of the due and
punctual performance of this Agreement; (y) Lessor is reasonably satisfied as
to the creditworthiness of such person; and (z) Lessor is reasonably
satisfied that the Event will not cause Lessor or any Participant to become
subject to any Federal or state regulation including without limitation (i)
regulation as an "electric utility company", a "public utility company", a
"holding company" or a "subsidiary company" or an "association company" of a
holding company under PUHCA; (iii) regulation as a "public utility" under the
FPA; (iv) as a "public service company" or "electric company" under the Conn.
Gen. Stat.; or (v) regulation under the CAA; (9) effective control of
Lessee's voting capital stock, issued and outstanding from time to time, is
not retained by NU and, as determined by Lessor at its sole discretion, such
change of control results in any degradation in the creditworthiness of
Lessee; (10) Lessee or NU shall be in default under any material obligation
for borrowed money, any material obligation for the deferred purchase price
of property or any material obligation under any lease agreement; (11) [there
shall have been a material adverse change in the business or financial
condition of Lessee from the date of execution hereof]; (12) Lessee shall
fail to comply with all then applicable regulatory requirements of
governmental agencies applicable to it, to the Equipment or to the use or
operation thereof; or (13) Lessee breaches any of its other obligations
hereunder not covered by clauses (1) through (12) of this Section XI(a) and
fails to cure such breach within thirty (30) days after written notice
thereof. Such declaration shall apply to all Schedules except as
specifically excepted by Lessor.
(b) After Default, Lessee shall, without further demand, forthwith pay
to Lessor (i) as liquidated damages for loss of a bargain and not as a
penalty, the Stipulated Loss Value of the Equipment (calculated in accordance
with Annex D as of the Rent Payment Date next preceding the declaration of
default), and (ii) all Rents and other sums then due hereunder. If Lessee
fails to pay the amounts specified in the preceding sentence, then, at the
request of Lessor, Lessee shall comply with the provisions of Section X(a)
hereof. Lessee hereby authorizes Lessor to enter, with or without legal
process, any premises where any Equipment is located and take possession
thereof. Lessor may, but shall not be required to, sell Equipment at
private or public sale, in bulk or in parcels, with or without notice, and
without having the Equipment present at the place of sale; or Lessor may, but
shall not be required to, lease, otherwise dispose of or keep idle all or
part of the Equipment; and Lessor may use Lessee's premises for any or all of
the foregoing (provided that Lessor shall not be entitled to use Lessee's
premises for a lease of the Equipment in place on such premises) without
liability for rent, costs, damages or otherwise. The proceeds of sale, lease
or other disposition, if any, shall be applied in the following order of
priorities: (1) to pay all of Lessor's costs, charges and expenses incurred
in taking, removing, holding, repairing and selling, leasing or otherwise
disposing of Equipment; then, (2) to the extent not previously paid by
Lessee, to pay Lessor all sums due from Lessee hereunder; then (3) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages;
and (4) any surplus shall be paid to Lessee. Lessee shall pay any deficiency
in clauses (1) and (2) forthwith. Nothing in this Agreement shall cause
Lessor to operate the Equipment, or otherwise undertake any action that will
cause Lessor to become subject to regulation under the FPA, PUHCA, Conn. Gen.
Stats., or CAA. Upon satisfaction in full of all of Lessee's obligations
hereunder, if the Equipment has not then been sold or re-leased by Lessor in
the course of the exercise of its remedies hereunder, if the Equipment has
not then been sold or re-leased by Lessor in the course of the exercise of
its remedies hereunder, Lessor will transfer, on an AS IS, WHERE IS BASIS,
without recourse or warranty, express or implied, of any kind whatsoever ("AS
IS BASIS"), all of Lessor's interest in and to the Equipment. Lessor shall
not be required to make and may specifically disclaim any representation or
warranty as to the condition of such Equipment and other matters (except that
Lessor shall warrant that it has conveyed whatever interest it received in
the Equipment, free and clear of any lien or encumbrance created by Lessor).
Lessor shall execute and deliver to Lessee such Uniform Commercial Code
Statements of Termination and other documents and instruments as reasonably
may be required in order to convey or terminate any interest of Lessor in and
to the Equipment
(c) In the event that Lessor or any Participant for any reason arising
out of this Agreement becomes, or may become, subject to Federal or state
regulation, including without limitation, regulation as an "electric utility
company", a "public utility company", a "holding company" or a "subsidiary
company" or an "associate company" of a holding company under PUHCA; as a
"public utility" under the FPA; as a "public service company" or "electric
company" under the Conn. Gen. Stat.; or under the CAA or the AEA (hereinafter
"Change in Status"), Lessee shall promptly take such actions as Lessor
reasonably believes are necessary to remove or remedy such Change in Status,
including such reasonable actions as are necessary to assure Lessor that it
will not become subject to a Change in Status during the Term. Such actions
and assurances may include, but are not limited to, (i) such modifications of
this Agreement as are necessary to assure Lessor that it will not now or
during the Term become subject to a Change in Status, or (ii) if the Change
in Status cannot be remedied through modification of this Agreement, at
Lessor's option, upon written demand from Lessor, Lessee shall pay to Lessor
the sum of: (x) the Stipulated Loss Value of the Equipment calculated in
accordance with Annex D as of the Rent Payment Date next preceding the date
of such demand; and (y) all Rent and other amounts which are due hereunder as
of the next succeeding Rent Payment Date. Upon payment of all sums due
hereunder, Lessor will transfer, on an AS IS BASIS, all of Lessor's interest
in and to the Equipment. Lessor shall not be required to make and may
specifically disclaim any representation or warranty as to the condition of
such Equipment and other matters (except that Lessor shall warrant that it
has conveyed whatever interest it received in the Equipment, free and clear
of any lien or encumbrance created by Lessor). Lessor shall execute and
deliver to Lessee such Uniform Commercial Code Statements of Termination and
other documents and instruments as reasonably may be required in order to
convey or terminate any interest of Lessor in and to the Equipment. Such
actions or assurances, where necessary, shall be made retroactive to the date
on which the Change in Status was deemed to have occurred.
(d) In addition to the foregoing rights, Lessor may terminate this
Agreement as to any or all of the Equipment.
(e) Each of the foregoing remedies, together with any and all other
rights that Lessor may have under this Agreement or under statute or at law
or in equity or otherwise, shall be cumulative, and the exercise by Lessor of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or subsequent exercise by Lessor of any or all such other
rights, powers or remedies. Lessee waives notice of sale or other
disposition (and the time and place thereof), and the manner and place of any
advertising. If permitted by law, Lessee shall pay reasonable attorney's
fees actually incurred by Lessor in enforcing the provisions of this Lease
and any ancillary documents. Waiver of any default shall not be a waiver of
any other or subsequent default.
(f) Any default under the terms of this or any other agreement between
Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
XII. ASSIGNMENT:
(a) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT OR ANY INTEREST OR RIGHTS OF LESSEE HEREUNDER WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR.
(b) For a period ending sixty (60) days from the date of this Agreement,
Lessor may, without the consent of Lessee, assign this Agreement or any
Schedule, or the right to enter into any Schedule, to any Institutional
Investor or any party specified on Exhibit No. 2 attached hereto and any such
assignee may further assign this Agreement or any Schedule, or the right to
enter into any Schedule, to an entity affiliated with such assignee, without
the consent of Lessee. As used herein, "Institutional Investor" shall mean
any insurance organization who engages in the activity of investing in public
or private financial instruments, any pension fund or any mutual or money
management fund. After sixty (60) days from the date of this Agreement,
Lessor may, without the consent of Lessee, assign this Agreement or any
Schedule, or the right to enter into any Schedule. Lessee agrees that it
will pay all Rent and other amounts payable under each Schedule to the Lessor
named therein; provided, however, if Lessee receives written notice of an
assignment from Lessor, Lessee will pay all Rent and other amounts payable
under any assigned Schedule to such assignee or as instructed by Lessor.
Each Schedule, incorporating by reference the terms and conditions of this
Agreement, constitutes a separate instrument of lease, and the Lessor named
therein or its assignee shall have all rights as "Lessor" thereunder
separately exercisable by such named Lessor or assignee as the case may be,
exclusively and independently of Lessor or any assignee with respect to other
Schedules executed pursuant hereto. Without limiting the generality of the
foregoing, the grant of security interest in Section XVII(b) hereof shall, as
it relates to the Equipment leased under each Schedule (and to the proceeds
and other collateral referred to in Section XVII(b)), be deemed to have been
granted solely to the Lessor named therein, or to its assignee, as applicable
and such Equipment (and other related collateral) shall not be deemed to
collateralize Lessee's obligations under any of the Schedules to which such
named Lessor or assignee, as the case may be, is not a party. Lessee further
agrees to confirm in writing receipt of a notice of assignment as reasonably
may be requested by assignee. Lessee hereby waives and agrees not to assert
against any such assignee any defense, set-off, recoupment claim or
counterclaim which Lessee has or may at any time have against Lessor or any
other person for any reason whatsoever; provided, however, that Lessee
reserves the right to assert in a separate cause of action against Lessor or
any other person any claim which Lessee has or may at any time have against
Lessor or any other person.
(c) Lessee acknowledges that it has been advised that General Electric
Capital Corporation is acting hereunder for itself and as agent for certain
third parties (each being herein referred to as a "Participant" and,
collectively, as the "Participants"); that the interest of the Lessor in this
Agreement, the Equipment Schedules, related instruments and documents and/or
the Equipment may be conveyed to, in whole or in part, and may be used as
security for financing obtained from, one or more third parties without the
consent of Lessee (the "Syndication"). Lessee agrees reasonably to cooperate
with Lessor in connection with the Syndication, including the execution and
delivery of such other documents, instruments, notices, opinions,
certificates and acknowledgments as reasonably may be required by Lessor or
such Participant; provided, however in no event shall Lessee be required to
consent to any change that would adversely affect any of the material terms
of the transactions contemplated herein.
(d) Subject always to the foregoing, this Agreement inures to the
benefit of, and is binding upon, the successors and assigns of the parties
hereto.
XIII. NET LEASE; NO SET-OFF, ETC.:
This Agreement is a net lease. Lessee's obligation to pay Rent and
other amounts due hereunder shall be absolute and unconditional. Lessee
shall not be entitled to any abatement or reductions of, or set-offs against,
said Rent or other amounts, including, without limitation, those arising or
allegedly arising out of claims (present or future, alleged or actual, and
including claims arising out of strict liability in tort or negligence of
Lessor) of Lessee against Lessor under this Agreement or otherwise. This
Agreement shall not terminate and the obligations of Lessee shall not be
affected by reason of (a) any denial by any Federal or state regulatory,
legislative or judicial authority of any recovery from, or pass through to,
ratepayers of any rents paid or other expenses, obligations or liabilities
arising out of this Agreement including, without limitation, fuel expenses,
Equipment maintenance, insurance coverage and payment of all applicable
Taxes; or (b) any defect in or damage to, or loss of possession, use or
destruction of, any Equipment from whatsoever cause. It is the intention of
the parties hereto that Rents and other amounts due hereunder shall continue
to be payable in all events in the manner and at the times set forth herein
unless the obligation to do so shall have been terminated pursuant to the
express terms hereof.
XIV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless Lessor,
the Participants, and their respective Affiliates, successors and assigns,
shareholders, partners, directors, officers, employees and agents (each an
"Indemnified Party"), from and against any and all liability, losses,
damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature, which may at any time be imposed or
incurred by or asserted against such Indemnified Party (other than such as
may be caused by the gross negligence or wilful misconduct of such
Indemnified Party) arising from or in any way connected to: (1) this
Agreement or the transactions contemplated hereby; (2) the selection,
manufacture, purchase, acceptance or rejection of Equipment, the ownership of
Equipment during the Term, and the delivery, lease, possession, maintenance,
uses, condition, return or operation of the Equipment (including, without
limitation, (A) any breach of any representation, warranty or covenant made
by Lessee under Section XVI hereof, (B) claims or penalties arising from any
violation of law or liability in tort (strict or otherwise), (C) loss of or
damage to any property or the environment or death or injury to any Person,
(D) latent or other defects, whether not discoverable, (E) any claim for
patent, trademark, service-mark or copyright infringement, and (F) any claim
of Lessor incurred in the administration of this Agreement, the other
Documents or any Schedule attached hereto); (3) the condition of the
Equipment sold or disposed of after use by Lessee, any sublessee or employees
of Lessee; or (4) any misrepresentation or failure by Lessee to perform its
obligations hereunder. Lessee shall, upon request, defend any actions based
on, or arising out of, any of the foregoing.
(b) In addition to the foregoing, Lessee shall defend, indemnify and
hold harmless each Indemnified Party from and against any Environmental Claim
or Environmental Loss and, unless Lessee is then contesting in good faith
such Environmental Claim or Environmental Loss and Lessee has set aside on
its books appropriate reserves therefor, Lessee shall fully and promptly pay,
perform and discharge any such Environmental Claim or Environmental Loss.
As used herein,
(1) "Adverse Environmental Condition" shall refer to (i) the
existence or the continuation of the existence, of an Environmental
Emission (including, without limitation, a sudden or non-sudden
accidental or non-accidental Environmental Emission), of, or
exposure to, any Contaminant, odor or audible noise in violation of
any Applicable Environmental Law, at, in, by, from or related to
any Equipment, (ii) the environmental aspect of the transportation,
storage, treatment or disposal of materials in connection with the
operation of any Equipment in violation of any Applicable
Environmental Law, or (iii) the violation, or alleged violation, of
any Environmental Law connected with any Equipment.
(2) "Affiliate" shall refer, with respect to any given
Person, to any Person that directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, such Person (other than the Supplier in its
capacity as the Supplier).
(3) "Contaminant" shall refer to those substances which are
regulated by or form the basis of liability under any Environmental
Law, including, without limitation, asbestos, polychlorinated
biphenyls ("PCBs"), and radioactive substances.
(4) "Environmental Claim" shall refer to any accusation,
allegation, notice of violation, claim, demand, abatement or other
order or direction (conditional or otherwise) by any governmental
authority or any Person for personal injury (including sickness,
disease or death), tangible or intangible property damage, damage
to the environment or other adverse effects on the environment, or
for fines, penalties or restrictions, resulting from or based upon
any Adverse Environmental Condition.
(5) "Environmental Emission" shall refer to any actual or
threatened release, spill, omission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, or into or out of any of the
Equipment, including, without limitation, the movement of any
Contaminant or other substance through or in the air, soil, surface
water, groundwater, or property.
(6) "Environmental Law" shall mean any Federal, foreign,
state or local law, rule or regulation pertaining to the protection
of the environment, including, but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA") (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et
seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. Section 651 et seq.), as these laws have been
amended or supplemented, and any analogous foreign, Federal, state
or local statutes, and the regulations promulgated pursuant
thereto.
(7) "Environmental Loss" shall mean any loss, cost, damage,
liability, deficiency, fine, penalty or expense (including, without
limitation, reasonable attorneys' fees, engineering and other
professional or expert fees), investigation, removal, cleanup and
remedial costs (voluntarily or involuntarily incurred) and damages
to, loss of the use of or decrease in value of the Equipment
arising out of or related to any Adverse Environmental Condition.
(8) "Person" shall mean any individual, partnership, firm,
corporation, trust, limited liability company, limited liability
partnership, association, joint venture, unincorporated
organization, government or political subdivision or
instrumentality or department or agency thereof and any other
entity.
(c) All of Lessee's obligations and all of Lessor's rights, privileges
and indemnities contained in this Section shall survive the expiration or
other termination of this Agreement. Lessor's rights, privileges and
indemnities contained in this Section are expressly made for the benefit of,
and shall be enforceable by Lessor, its successors and assigns.
XV. DISCLAIMER:
LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY
ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO
THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY
PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT
INFRINGEMENT, OR TITLE (except that Lessor warrants that it has received such
title to the Equipment as was conveyed to it, free and clear of all liens and
encumbrances created by Lessor). All of the foregoing risks, as between
Lessor and Lessee, are to be borne by Lessee. Without limiting the
foregoing, Lessor shall have no responsibility or liability to Lessee or any
other person with respect to any of the following (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any
Equipment, any inadequacy thereof, any deficiency or defect (latent or
otherwise) therein, or any other circumstance in connection therewith; (ii)
the use, operation or performance of any Equipment or any risks relating
thereto; (iii) any interruption of service, loss of business or anticipated
profits or consequential damages; or (iv) the delivery, operation, servicing,
maintenance, repair, improvement or replacement of any Equipment. If, and so
long as, no default exists under this Agreement, Lessee shall be, and hereby
is, authorized during the term of this Agreement to assert and enforce, at
Lessee's sole cost and expense, from time to time, in the name of and for the
account of Lessor and/or Lessee, as their interests may appear, whatever
claims and rights Lessor may have against any Supplier of the Equipment.
XVI. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE:
(a) Lessee hereby represents, warrants and covenants to Lessor as
follows:
(1) Lessee has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents (together, the
"Documents") and is duly qualified to do business wherever necessary to carry
on its present business and operations, including the jurisdiction(s) where
the Equipment is or is to be located.
(2) The Documents have been duly authorized, executed and
delivered by Lessee and constitute valid, legal and binding agreements,
enforceable in accordance with their terms, except to the extent that the
enforcement of remedies therein provided may be limited under applicable
bankruptcy and insolvency laws.
(3) No approval, consent or withholding of objections is required
from any governmental authority or instrumentality with respect to the entry
into or performance by Lessee of the Documents except such as have already
been obtained.
(4) The entry into and performance by Lessee of the Documents will
not: (i) violate any judgment, order, law or regulation applicable to
Lessee or any provision of Lessee's articles of incorporation, charter or
by-laws; or (ii) result in any breach of, constitute a default under or
result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument (other than this
Agreement) to which Lessee is a party.
(5) Except as disclosed in the Disclosure Documents, there are no
suits or proceedings pending or threatened in court or before any commission,
board or other administrative agency against or affecting Lessee, which will
have a material adverse effect on the ability of Lessee to fulfill its
obligations under this Agreement. As used herein, "Disclosure Documents"
means Lessee's Annual Report for the fiscal year ended December 31, 1995, on
Form 10K, Lessee's Quarterly Report for the quarter ended March 31, 1996, on
Form 10Q and Lessee's reports dated 1996, on Form 8K.
(6) Each financial statement delivered to Lessor has been prepared
in accordance with GAAP, and since the date of the most recent financial
statement, there has been no material adverse change except as disclosed in
the Disclosure Documents.
(7) Lessee is duly incorporated and will be at all times validly
existing and in good standing under the laws of the state of its
incorporation (specified in the first sentence of this Agreement) and in each
state in which it is doing business.
(8) The Equipment will at all times be used for commercial or
business purposes.
(9) During the Term, Lessee shall maintain at all times a ratio of
Common Equity to Total Capitalization as follows: (i) 0.31:1.00 for fiscal
year 1996, (ii) 0.32:1.00 for fiscal year 1997, and (iii) 0.33:1.00 for
fiscal year 1998 and each fiscal year thereafter. As used herein, the
following terms shall have the following meanings:
"Common Equity" of Lessee shall mean for any period, an
amount equal to the sum of the aggregate of the par value
of, or stated capital represented by, the outstanding
common shares of Lessee and its subsidiaries and the
surplus, paid-in, earned and other, if any, of Lessee and
its subsidiaries as determined on a consolidated basis in
accordance with generally accepted accounting principles;
and
"Total Capitalization" of Lessee shall mean the sum of
the Common Equity, preferred stock and all long-term and
short-term Debt of Lessee and its consolidated
subsidiaries (including the current portion thereof); and
"Debt" of any person shall mean, without duplication, (i)
indebtedness of such person for borrowed money, including
but not limited to obligations of such person evidenced
by bonds, debentures, notices or other similar
instruments, (ii) obligations of such person to pay the
deferred purchase price of property or services
(excluding any obligation of such person to the United
States Department of Energy or its successor with respect
to disposition of spent nuclear fuel burned prior to
April 3, 1983), (iii) obligations of such person as
lessee under leases which shall have been or should be,
in accordance with generally accepted accounting
principles, recorded as capital leases, (iv) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations
of others of the kinds referred to in clause (i) through
(iv) above, and (v) liabilities in respect of unfunded
vested benefits under ERISA Plans.
(10) During the Term, Lessee will be required to maintain for each
fiscal quarter in each fiscal year a ratio of Operating Income to Interest
Expense as follows: (i) 3.50:1.00 for each of fiscal year 1996 and fiscal
year 1997 and (ii) 4.50:1.00 for fiscal year 1998 and each fiscal year
thereafter. As used herein, the following terms shall have the following
meanings:
"Operating Income" of Lessee shall mean, for any
period, Lessee's consolidated operating income for
such period, adjusted as follows:
(i) increased by the amount of income taxes paid by
Lessee and its consolidated subsidiaries during
such period, if and to the extent deducted in
the computation of Lessee's consolidated
operating income for such period; and
(ii) increased by the amount of any depreciation and
amortization deducted in the computation of
Lessee's consolidated operating income for such
period; and
(iii) decreased by the amount of any capital
expenditures paid by Lessee or its
consolidated subsidiaries to the extent
not deducted in the computation of
Lessee's consolidated operating income for
such period; and
"Interest Expense" of Lessee shall mean for any
period, the aggregate amount of any interest on
consolidated Debt of Lessee and its subsidiaries
(including long-term and short-term Debt).
(11) Except as disclosed in the Disclosure Documents, Lessee and
its parents, subsidiaries and affiliates have all necessary licenses,
authorizations, approvals, waivers, exemptions and permits required under any
applicable Federal, state and local laws, including without limitation, the
FPA, PUHCA, CAA, the Atomic Energy Act of 1954, as amended, the Connecticut
General Statutes, and all rules, regulations, orders, decisions and written
policies promulgated or issued thereunder (collectively or individually,
"Regulatory Law" or "Laws"), including without limitation, those necessary
for Lessee and its parents, subsidiaries and affiliates to own and operate
their respective properties and to carry on their respective businesses as
now conducted and as proposed to be conducted throughout the Term, and with
respect to Lessee, to perform under this Agreement, the other Documents and
Schedules.
(12) Except as disclosed in the Disclosure Documents, all Lessee's
and its parents', subsidiaries' or affiliates' licenses, authorizations,
approvals, waivers, permits, exemptions and orders are valid and in full
force and effect, free and clear of any disqualifications or restrictions,
and any conditions that would impair Lessee's ability to execute and perform
(including without limitation, the ability to install, maintain and operate
the Equipment) under this Agreement, the other Documents or Schedules.
Neither Lessee nor any of its parents, subsidiaries or affiliates have
received, or have reason to believe that Lessee or any of its parents,
subsidiaries or affiliates will receive, any notice that any Regulatory
Authority intends to cancel, terminate, review, modify, amend or not renew
any of the material licenses, authorizations, approvals, waivers, permits,
exemptions and orders of Lessee or any of its parents, subsidiaries or
affiliates the absence of which would impair their ability to carry on their
respective businesses as now conducted and as proposed to be conducted
throughout the Term, and with respect to Lessee, to perform under this
Agreement, the other Documents and Schedules.
(13) Except as disclosed in the Disclosure Documents, Lessee and
its parents, subsidiaries and affiliates are in compliance with all
Regulatory Laws and no condition exists or event has occurred with respect to
any license, authorization, approval, order, waiver, exemption or permit
that, in itself or with the giving of notice or lapse of time, or both, does
or would: (a) constitute or result in a violation of any Regulatory Law; or
(b) result in a forfeiture or the suspension, termination, revocation,
impairment, modification, amendment or non-renewal of any such license,
authorization, approval, order, waiver, exemption or permit.
(14) Except as disclosed in the Disclosure Documents, there are no
judgments, decrees or orders that have been issued by any Regulatory
Authority against Lessee or any of its parents, subsidiaries or affiliates
that could impair Lessee's ability to (A) install, maintain and operate the
Equipment, and/or (B) enter into and perform under this Agreement, the other
Documents or Schedules; and there are no Regulatory Authority or judicial
proceedings pending or threatened against Lessee or any of its parents,
subsidiaries or affiliates, including, without limitation, any notice of
violation, notice of apparent liability, notice of investigation, order to
show cause or other order, or investigative proceeding, that could impair
Lessee's ability to (x) install, maintain and operate the Equipment, and/or
(y) enter into and perform under this Agreement, the other Documents or
Schedules.
(15) No consents, notices, authorizations, approvals,
registrations, declarations or filings by or with any Regulatory Authority
are required by Lessee to install, maintain or operate the Equipment, or to
enter into and perform under this Agreement, the other Documents or Schedules
except such as have been or on or before the date hereof will have been duly
obtained, given or accomplished.
(16) Neither Lessor nor any Participant will be or become, solely
by reason of its entering into or performing under this Agreement, the other
Documents or Schedules to which it is a party, or as a result of the
transactions contemplated hereby or thereby, subject to regulation as an
electric utility company, an electric company, a public service company, a
public utility or a holding company of a public utility company, electric
utility company, electric company or public service company or a subsidiary
company or an associate company of a holding company, by any Regulatory
Authority.
(17) Except as consistent with applicable Environmental Laws, no
Hazardous Substances or pollutants regulated under any Environmental Law are
present on or below the surface of Lessee's real property or leased premises,
and neither Lessee nor any of its parents, subsidiaries or affiliates or any
present or former owner or operator of such real property or leased premises
has been identified as a potentially responsible party for cleanup liability
with respect to the emission, discharge or release of any Hazardous
Substance.
(18) Lessee and its parents, subsidiaries, and affiliates have all
permits, licenses, registrations or other authorizations required by
Environmental Laws for the ownership by Lessee or its parents, subsidiaries
or affiliates of their respective assets, present use or occupancy of the
real property or leased premises included in those assets, and the present
operation of their respective businesses (including Lessee's installation,
operation and maintenance of the Equipment).
(b) The representations, warranties and covenants of Lessee made
hereunder shall be true as of the date hereof and on the date of execution of
each Schedule, and except for Section XVI(a)(5) hereof, shall be continuing
in nature and true throughout the Term.
XVII. OWNERSHIP FOR TAX PURPOSES; GRANT OF SECURITY INTEREST; USURY
SAVINGS:
(a) For income tax purposes, Lessor will treat Lessee as the owner of
the Equipment. Accordingly, Lessor agrees (1) to treat Lessee as the owner
of the Equipment on Lessor's Federal income tax return, (2) not to take
actions or positions inconsistent with such treatment on or with respect to
its federal income tax return, and (3) not claim any tax benefits available
to an owner of the Equipment on or with respect to its Federal income tax
return. The foregoing undertakings by Lessor shall not be violated by
Lessor's taking a tax position through inadvertence so long as such
inadvertent tax position is reversed by Lessor promptly upon its discovery.
Lessor shall in no event be liable to Lessee if Lessee fails to secure any of
the tax benefits available to Lessee as the owner of the Equipment except to
the extent that such failure is caused by Lessor's gross negligence or
willful misconduct.
(b) In order to secure the prompt payment of the Rent and all of the
other amounts from time to time outstanding under and with respect to the
Schedules, and the performance and observance by Lessee of all the
agreements, covenants and provisions thereof (including, without limitation,
all of the agreements, covenants and provisions of the Agreement that are
incorporated therein), Lessee hereby grants to Lessor a first priority
security interest in the Equipment leased under the Schedules, together with
all additions, attachments, accessories and accessions thereto whether or not
furnished by the supplier of the Equipment and any and all substitutions,
replacements or exchanges therefor, in each such case in which Lessee shall
from time to time acquire an interest, and any and all insurance and/or other
proceeds (but without power of sale) of the property in and against which a
security interest is granted hereunder.
(c) It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that any Schedule is determined to be
subject to such laws; accordingly, it is agreed that, notwithstanding any
provision to the contrary in any Schedule or this Agreement, in no event
shall any Schedule require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such
excess interest is contracted for, charged or received under any Schedule or
this Agreement, or in the event that all of the principal balance shall be
prepaid, so that under any of such circumstances the amount of interest
contracted for, charged or received under any Schedule or this Agreement
shall exceed the maximum amount of interest permitted by applicable law, then
in such event (1) the provisions of this paragraph shall govern and control,
(2) neither Lessee nor any other person or entity now or hereafter liable for
the payment of which hereunder shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest
permitted by applicable law, (3) any such excess which may have been
collected by Lessor shall be either applied as a credit against the then
unpaid principal balance or refunded to Lessee, at the option of Lessor, and
(4) the effective rate of interest shall be automatically reduced to the
maximum lawful contract rate allowed under applicable law as now or hereafter
construed by the courts having jurisdiction thereof. It is further agreed
that without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received under any Schedule or this
Agreement which are made for the purpose of determining whether such rate
exceeds the maximum lawful contract rate, shall be made, to the extent
permitted by applicable law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated term of the
indebtedness evidenced hereby, all interest at any time contracted for,
charged or received from Lessee or otherwise by Lessor in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable
state law, so that it becomes lawful for Lessor to receive a greater interest
per annum rate than is presently allowed, the Lessee agrees that, on the
effective date of such amendment or preemption, as the case may be, the
lawful maximum rate hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States
of America (but not in excess of the interest rate contemplated hereunder).
XVIII. END OF LEASE OPTIONS.
Provided that Lessee is not then in default under this Agreement or any
Schedule or any other agreement between Lessor and Lessee, Lessee shall have
the option, upon the expiration of the Term of each Schedule, to return,
purchase, or renew the Term with respect to, all (but not less than all) of
the Equipment leased under all Schedules executed hereunder subject to the
following terms and conditions.
(a) Renewal. Lessee shall have the option, upon the expiration of
the initial sixty (60) months of the term of the first Schedule to be
executed under this Agreement (the "Initial Term") and/or each of the first
four (4) Renewal Terms of the first Schedule to be executed under this
Agreement, to renew the Agreement with respect to all, but not less than all,
of the Equipment leased under all Schedules executed hereunder for an
additional term of twelve (12) months (each, a "Renewal Term"). Including
all Renewal Terms, the maximum term of the first Schedule to be executed
under this Agreement shall be ten (10) years (the Initial Term plus five (5)
Renewal Terms) (the "Maximum Lease Term"), and the maximum term of each
additional Schedule shall not exceed the then remaining Maximum Lease Term.
The Rent during any Renewal Term shall be calculated by reference to the then
applicable Interest Rate, which will be reset at the end of the Basic Term
and shall be applicable to all Renewal Terms at a prevailing interest rate
representing a spread over the then-current LIBOR Rate, commensurate with the
then credit quality of Lessee (such credit quality to be based on the then
current evaluation of Lessee by a reputable credit rating agency), such
spread to be determined to the mutual satisfaction of Lessor and Lessee. If
the parties are unable mutually to agree, Lessee's exercise of the renewal
option shall be deemed to be the exercise of Lessee's option to purchase the
Equipment pursuant to Paragraph (c) of this Section.
(b) Return. Lessee shall have the option, upon the expiration of
the Term of each Schedule, to return all (but not less than all) of the
Equipment described on all Schedules executed hereunder, to Lessor upon the
following terms and conditions: If Lessee desires to exercise this option,
Lessee shall (i) pay to Lessor on the last day of the Term with respect to
each individual Schedule, in addition to the scheduled Rent then due on such
date and all other sums then due hereunder, a terminal rental adjustment
amount equal to the Fixed Purchase Price of such Equipment, and (ii) return
the Equipment to Lessor in accordance with Section X hereof. Thereafter, upon
return of all of the Equipment described on all Schedules executed hereunder,
Lessor and Lessee shall arrange for the commercially reasonable sale, scrap
or other disposition of the Equipment. Upon satisfaction of the conditions
specified in this Paragraph (b), Lessor will transfer, on an AS IS BASIS, all
of Lessor's interest in and to the Equipment. Lessor shall not be required
to make and may specifically disclaim any representation or warranty as to
the condition of such Equipment and other matters (except that Lessor shall
warrant that it has conveyed whatever interest it received in the Equipment,
free and clear of any liens or encumbrances created by Lessor). Lessor shall
execute and deliver to Lessee such Uniform Commercial Code Statements of
Termination and other documents and instruments as reasonably may be required
in order to convey or terminate any interest of Lessor in and to the
Equipment. Upon the sale, scrap or other disposition of the Equipment the
net sales proceeds with respect to the Equipment sold will be paid to, and
held by, Lessor. Lessor shall promptly thereafter pay to Lessee an amount
equal to the Residual Risk Amount (as specified in the Schedule) of the
Equipment (less all reasonable costs, expenses and fees, including storage,
reasonable and necessary maintenance and other remarketing fees incurred in
connection with the sale, scrap, or disposition of such Equipment) plus all
net proceeds, if any, of such sale in excess of the Residual Risk Amount of
the Equipment and applicable taxes, if any.
(c) Purchase. Lessee shall have the option, upon the expiration
of the Term of each Schedule, to purchase all (but not less than all) of the
Equipment described on all Schedules executed hereunder upon the following
terms and conditions: If Lessee desires to exercise this purchase option
with respect to the Equipment, Lessee shall pay to Lessor on the last day of
the Term with respect to each individual Schedule (the "Termination Date"),
in addition to the scheduled Rent (if any) then due on such date and all
other sums then due hereunder, in cash the purchase price for the Equipment
so purchased, determined as hereinafter provided. The purchase price of the
Equipment shall be an amount equal to the Fixed Purchase Price of such
Equipment (as specified on the Schedule), plus all taxes and charges upon
sale and all other reasonable and documented expenses incurred by Lessor in
connection with such sale, including, without limitation, any such expenses
incurred based on a notice from Lessee to Lessor that Lessee intended to
return any such items of Equipment. Upon satisfaction of the conditions
specified in this Paragraph (c), Lessor will transfer, on an AS IS BASIS, all
of Lessor's interest in and to the Equipment. Lessor shall not be required to
make and may specifically disclaim any representation or warranty as to the
condition of such Equipment and other matters (except that Lessor shall
warrant that it has conveyed whatever interest it received in the Equipment,
free and clear of any lien or encumbrance created by Lessor). Lessor shall
execute and deliver to Lessee such Uniform Commercial Code Statements of
Termination and other documents and instruments as reasonably may be required
in order to convey or terminate any interest of Lessor in and to the
Equipment.
(d) Notice of Election. Lessee shall give Lessor irrevocable
written notice of its election of the options specified in this Section not
less than one hundred eighty (180) days nor more than three hundred sixty-
five (365) days before the expiration of the Basic Term or any Renewal Term
of the first Schedule to be executed under this Agreement. Such election
shall be effective with respect to all Equipment described on all Schedules
executed hereunder. If Lessee fails timely to provide such notice, without
further action Lessee automatically shall be deemed to have elected (1) to
renew the Term of this Agreement pursuant to Paragraph (a) of this Section if
a Renewal Term is then available hereunder, or (2) to purchase the Equipment
pursuant to Paragraph (c) of this Section if a Renewal Term is not then
available hereunder.
XIX. MISCELLANEOUS:
(a) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN LESSEE AND LESSOR. The scope of this waiver is intended to be all
encompassing of any and all disputes that may be filed in any court
(including, without limitation, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims). THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
(b) Any cancellation or termination by Lessor, pursuant to the
provisions of this Agreement, any Schedule, supplement or amendment hereto,
or the lease of any Equipment hereunder, shall not release Lessee from any
then outstanding obligations to Lessor hereunder. Any obligations of Lessor
to be performed after the expiration of the Term shall survive the expiration
of the Term.
(c) It is the intent of the parties that all Equipment shall at all
times remain personal property regardless of the degree of its annexation to
any real property and shall not by reason of any installation in, or
affixation to, real or personal property become a part thereof.
(d) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith.
(e) Lessee agrees, upon Lessor's request, to execute any instrument
necessary or expedient for filing, recording or perfecting the security
interest of Lessor.
(f) All notices required to be given hereunder shall be in writing,
personally delivered, delivered by overnight courier service, sent by
facsimile transmission (with confirmation of receipt), or sent by certified
mail, return receipt requested, addressed to the other party at its
respective address stated above or at such other address as such party shall
from time to time designate in writing to the other party; and shall be
effective from the date of receipt.
(g) This Agreement and any Schedule and Annexes thereto constitute the
entire agreement of the parties with respect to the subject matter hereof.
NO VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS
PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
(h) The representations, warranties and covenants of Lessee herein shall
be deemed to survive the closing hereunder and, except as otherwise stated,
be continuing as if remade on each day of this Agreement. Lessor's
obligations to acquire and lease specific items of Equipment shall be
conditioned upon Lessee providing to Lessor such information with respect to
Lessee's financial condition as Lessor may require, and Lessor being
satisfied that there shall have been no material adverse change in the
business or financial condition of Lessee from the date of execution hereof.
The obligations of Lessee under Sections III, X, XIV and XIX(l) which accrue
during the term of this Agreement and obligations which by their express
terms survive the termination of this Agreement, shall survive the
termination of this Agreement.
(i) In case of a failure of Lessee to comply with any provision of this
Agreement, Lessor shall have the right, but shall not be obligated, to effect
such compliance, in whole or in part; and all moneys spent and expenses and
obligations incurred or assumed by Lessor in effecting such compliance
(together with interest thereon at the rate specified in Paragraph (j) of
this Section) shall constitute additional Rent due to Lessor within five (5)
days after the date Lessor sends notice to Lessee requesting payment.
Lessor's effecting such compliance shall not be a waiver of Lessee's default.
(j) In addition to the late charge specified in Section II(b) hereof,
any Rent or other amount not paid to Lessor when due hereunder shall bear
interest, both before and after any judgment or termination hereof, at the
lesser of eighteen percent (18%) per annum or the maximum rate allowed by
law.
(k) Any provisions in this Agreement and any Schedule which are in
conflict with any statute, law or applicable rule shall be deemed omitted,
modified or altered to conform thereto.
(l) Lessee agrees to pay on demand all reasonable costs and expenses
incurred by Lessor in connection with the preparation, execution, delivery,
filing, recording, and administration of any of the Documents, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for Lessor, and all costs and expenses, if any, in connection with the
enforcement of any of the Documents (including instruments of further
assurance). In addition, Lessee shall pay any and all stamp and other taxes
and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of any of the Documents and the
other documents to be delivered under the Documents, and agrees to save
Lessor harmless from and against any and all liabilities with respect to or
resulting from any delay attributed to Lessee in paying or failing to pay
such taxes and fees.
(m) Provided that no Default has then occurred hereunder, neither Lessor
nor any person claiming through Lessor shall interfere with Lessee's right
peaceably and quietly to possess and use the Equipment during the Term.
XX: CHOICE OF LAW; JURISDICTION: THIS AGREEMENT AND THE OTHER
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT. The parties agree that any action or proceeding arising out of or
relating to this Agreement may be commenced in the United States District
Court for the Southern District of New York.
XXI: CHATTEL PAPER: To the extent that any Equipment Schedule would
constitute chattel paper, as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction, no security interest
therein may be created through the transfer or possession of this Agreement
in and of itself without the transfer or possession of the original of an
Equipment Schedule executed pursuant to this Agreement and incorporating the
Agreement by reference; and no security interest in this Agreement and an
Equipment Schedule may be created by the transfer or possession of any
counterpart of the Equipment Schedule other than the original thereof, which
shall be identified as the document marked "Original" and all other
counterparts shall be marked "Duplicate".
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Lessee and Lessor have caused this Master Lease
Agreement to be executed by their duly authorized representatives as of the
date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION, THE CONNECTICUT LIGHT AND POWER
FOR ITSELF AND AS AGENT FOR CERTAIN COMPANY
PARTICIPANTS
By: /s/William C. Badgio By: /s/ David R. McHale
Title: Transaction & Syndication Manager Title: Assistant Treasurer
EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
Lessor & Mailing Address: Lessee & Mailing Address:
GENERAL ELECTRIC CAPITAL CORPORATION, THE CONNECTICUT LIGHT AND POWER
FOR ITSELF AND AS AGENT FOR CERTAIN COMPANY
PARTICIPANTS 107 Selden Street
303 International Circle Berlin, Connecticut 06037-1616
Suite 300
Hunt Valley, Maryland 21031
This Equipment Schedule is executed pursuant to, and incorporates by
reference the terms and conditions of, and capitalized terms not defined
herein shall have the meanings assigned to them in, the Master Lease
Agreement identified above ("Agreement;" said Agreement and this Schedule
being collectively referred to as "Lease"). This Equipment Schedule,
incorporating by reference the Agreement, constitutes a separate instrument
of lease.
A. Equipment.
Pursuant to the terms of the Lease, Lessor agrees to acquire and lease
to Lessee the Equipment listed on Annex A attached hereto and made a part
hereof.
B. Financial Terms.
1. Capitalized Lessor's Cost: $50,957,807.32 (to be adjusted as
provided in Paragraph C.1. below)
2. Basic Term: sixty (60) months.
3. Basic Term Commencement Date: August 1, 1996.
4. Equipment Location: Off Naugatuck Avenue, Devon, Connecticut 06460.
5. Lessee Federal Tax ID No.: 06-0303850
6. Supplier: GE Power Systems
7. Last Delivery Date: August 1, 1996.
8. Lessee agrees and acknowledges that the Capitalized Lessor's Cost
of the Equipment as stated on the Schedule is equal to the fair
market value of the Equipment on the date hereof.
9. Renewal Terms: five (5) twelve (12) month terms.
10. Maximum Lease Term: Ten (10) years.
11. Stipulated Loss Values: See Annex D.
C. Term and Rent.
1. Interim Period. For the period from and including the Lease
Commencement Date to the Basic Term Commencement Date ("Interim Period"),
interest shall accrue at the Interest Rate on the Capitalized Lessor's Cost
of the Equipment, which amount shall be capitalized and added to the
Capitalized Lessor's Cost on the Basic Term Commencement Date.
2. Basic Term and Renewal Term Rent. Commencing on September 1, 1996,
and on the same day of each month thereafter (each, a "Rent Payment Date")
during the Basic Term ("Basic Term Rent") and any Renewal Term ("Renewal Term
Rent"), Lessee shall pay as Rent monthly installments, in arrears, calculated
to amortize the Capitalized Lessor's Cost of the Equipment over the Term,
together with Lessor's return on its investment, each installment in the
principal amount specified on the attached Amortization Schedule together
with interest on the Unamortized Principal Balance specified on the attached
Amortization Schedule as of the immediately preceding Rent Payment Date
(after application of the Rent paid on such date) at the Interest Rate for
the Interest Period following such immediately preceding Rent Payment Date.
Interest shall be calculated on the basis of a 360 day year for the actual
number of days elapsed.
As used herein, the following terms shall have the following meanings:
"Interest Period" shall mean the period beginning on the Lease
Commencement Date and ending on the next Rent Payment Date, and each
subsequent monthly period.
"Interest Rate" shall mean that percentage per annum calculated as the
sum of (a) the LIBOR Rate redetermined monthly, plus (b) during the Basic
Term, one hundred (100) basis points (subject to adjustment as specified in
the next sentence), and during any Renewal Term, such number of basis points
as may mutually be agreed upon by Lessor and Lessee, commensurate with the
then credit quality of Lessee (such credit quality to be based on the then
current evaluation of Lessee by a reputable credit rating agency), pursuant
to Section XVIII (a) of the Agreement. If during the Basic Term, Lessee's
credit rating is downgraded by either Standard and Poor's Ratings Group, a
division of McGraw-Hill, Inc. ("S&P") or Moody's Investors Service, Inc.
("Moody's"), then the Interest Rate shall mean that percentage per annum
calculated as the sum of (x) the LIBOR Rate redetermined monthly, plus (y)
one hundred (100) basis points if Lessee carries either a S&P BBB- or Moody's
Baa3 credit rating; one hundred twenty-five (125) basis points if Lessee
carries either a S&P BB+ or Moody's Ba1 credit rating; one hundred fifty
(150) basis points if Lessee carries either a S&P BB or Moody's Ba2 credit
rating; one hundred seventy-five (175) basis points if Lessee carries either
a S&P BB- or Moody's Ba3 credit rating; and two hundred (200) basis points if
Lessee carries either a S&P B+ or lower credit rating or Moody's B1 or lower
credit rating. Any such change in the Interest Rate shall be effective
immediately upon any and each change in Lessee's credit rating.
"LIBOR Rate" shall mean, with respect to any Interest Period occurring
during the Term, an interest rate per annum equal at all times during such
Interest Period to the quotient of (1) the rate per annum as determined on
the basis of the average of the rates offered by a majority of the banks in
the London interbank market for deposits in U.S. Dollars for thirty (30)
days, to the extent the rates offered by these banks appear on Telerate Page
3750 two (2) Business Days before the commencement of such Interest Period,
divided by (2) a number equal to 1.00 minus the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of the LIBOR
Reserve Requirements current on the date two (2) Business Days prior to the
first day of the Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (a sample of which is attached hereto as Exhibit A) (or such
other page as may replace Page 3750 on that service or such other service as
may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association Interest
Settlement Rates for U.S. Dollar deposits).
"LIBOR Reserve Requirements" shall mean the daily average for the
applicable Interest Period of the maximum rate applicable to Lessor or its
Participants at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or
any successor) on "Eurocurrency liabilities", as defined in such Board's
Regulation D (or in respect of any other category of liabilities that include
deposits by reference to which the interest rates on Eurodollar loans is
determined or any category of extensions of credit or other assets that
include loans by non-United States offices of any lender to United States
residents), having a term equal to such Interest Period, subject to any
amendments of such reserve requirement by such Board or its successor, taking
into account any transitional adjustments thereto.
If at any time Lessor or any Participant (or, without duplication, the
bank holding company of which such Participant is a subsidiary) determines
that either adequate and reasonable means do not exist for ascertaining the
LIBOR Rate, or it becomes impractical for Lessor or any Participant to obtain
funds to make or maintain the financing hereunder with interest at the LIBOR
Rate, or Lessor or any Participant shall have determined that the LIBOR Rate
will not adequately and fairly reflect the cost to Lessor or any Participant
of making, maintaining, or funding the transaction hereunder at the LIBOR
Rate, or Lessor or any Participant reasonably determines that, as a result of
changes to applicable law after the date of execution of the Agreement, or
the adoption or making after such date of any interpretations, directives or
regulations (whether or not having the force of law) by any court,
governmental authority or reserve bank charged with the interpretation or
administration thereof, it shall be or become unlawful or impossible to make,
maintain, or fund the transaction hereunder at the LIBOR Rate, then Lessor
promptly shall give notice to Lessee of such determination, and Lessor and
Lessee shall negotiate in good faith a mutually acceptable alternative method
of calculating the Interest Rate and shall execute and deliver such documents
as reasonably may be required to incorporate such alternative method of
calculating the Interest Rate in this Schedule, within thirty (30) days after
the date of Lessor's notice to Lessee. If the parties are unable mutually to
agree to such alternative method of calculating the Interest Rate in a timely
fashion, on the Rent Payment Date next succeeding the expiration of such
thirty (30) day period Lessee shall purchase all (but not less than all) of
the Equipment described on all Schedules executed pursuant to the Agreement
and shall pay to Lessor, in cash, the purchase price for the Equipment so
purchased, determined as hereinafter provided. The purchase price of the
Equipment shall be an amount equal to the Stipulated Loss Value of such
Equipment calculated in accordance with Annex D as of the date of payment,
together with all rent and other sums then due on such date, plus all taxes
and charges upon sale and all other reasonable and documented expenses
incurred by Lessor in connection with such sale. Upon satisfaction of the
conditions specified in this paragraph, Lessor will transfer, on an AS IS
BASIS, all of Lessor's interest in and to the Equipment. Lessor shall not be
required to make and may specifically disclaim any representation or warranty
as to the condition of the Equipment and other matters (except that Lessor
shall warrant that it has conveyed whatever interest it received in the
Equipment, free and clear of any liens or encumbrances created by Lessor).
Lessor shall execute and deliver to Lessee such Uniform Commercial Code
statements of termination and other documents and instruments as reasonably
may be required in order to convey or terminate any interest of Lessor in and
to the Equipment.
3. If any Rent Payment Date is not a Business Day, the Rent otherwise
due on such date shall be payable on the immediately preceding Business Day.
As used herein, "Business Day" shall mean any day other than Saturday,
Sunday, and any day on which banking institutions located in the States of
Connecticut or Maryland are authorized by law or other governmental action to
close.
4. Lessee shall pay to Lessor, for the account of each Participant,
from time to time the amounts as such Participant may determine to be
necessary to compensate it for any increased costs which such Participant
determines are attributable to its making or maintaining its interest in the
Lease and the Equipment (the "Interest") or any reduction in any amount
receivable by such Participant in respect of any such Interest (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change (as defined below)
which:
(i) changes the basis of taxation of any amounts payable to Lessor
for the account of such Participant in respect of such Interest (other than
taxes imposed on or measured by the overall net income of such Participant in
respect of the Interest by the jurisdiction in which such Participant has its
principal office or its lending office, or where the Participant is otherwise
subject to taxation); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Participant; or
(iii) imposes any other condition affecting this Lease or any
Interest.
For purposes hereof, "Regulatory Change" shall mean any change after the date
of this Lease in United States Federal, state or foreign law or regulations
(including, without limitation, Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as amended or supplemented from
time to time) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks including
any Participant or under any United States Federal, state or foreign law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
Without limiting the effect of the foregoing paragraph (but without
duplication), Lessee shall pay to Lessor, for the account of each
Participant, from time to time on request such amounts as such Participant
may determine to be necessary to compensate such Participant (or, without
duplication, the bank holding company of which such Participant is a
subsidiary) for any increased costs which it determines are attributable to
the maintenance by such Participant (or any lending office or such bank
holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law) of any court or
governmental or monetary authority (i) following any Regulatory Change or
(ii) implementing any risk-based capital guideline or requirement (whether or
not having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level
the Basle Accord (including, without limitation, the Final Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 208, Appendix A; 12 C.F.R. Part 225, Appendix A) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller of the
Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of such
Participant's Interest (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of
such Participant (or any lending office or bank holding company) to a level
below that which such Participant (or any lending office or bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request). For purposes of this paragraph, "Basle Accord" shall
mean the proposals for risk-based capital framework described by the Basle
Committee on Banking Regulations and Supervisory Practices in its paper
entitled "International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, modified and supplemented and in
effect from time to time or any replacement thereof.
Each Participant shall notify Lessee of any event occurring after the
date of this Lease that will entitle such Participant to compensation under
the preceding two paragraphs as promptly as practicable, but in any event
within forty-five (45) days, after such Participant obtains actual knowledge
thereof; provided, that (i) if such Participant fails to give such notice
within forty-five (45) days after it obtains actual knowledge of such an
event, such Participant shall, with respect to compensation payable pursuant
to the preceding two paragraphs in respect of any costs resulting from such
event, only be entitled to payment under the referenced paragraphs for costs
incurred from and after the date forty-five (45) days prior to the date that
such Participant does give such notice, and (ii) such Participant will
designate a different lending office for the Interest if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Participant, be disadvantageous to such
Participant. Each Participant will furnish to Lessee a certificate setting
forth the basis and amount of each request by such Participant for
compensation under the preceding two paragraphs. Determinations and
allocations by each Participant for purposes of the preceding two paragraphs
shall be conclusive, absent manifest error.
D. Insurance.
1. Public Liability: $25,000,000.00, total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
E. Fixed Purchase Price and Residual Risk Amount
END OF YEAR FIXED PURCHASE PRICE RESIDUAL RISK AMOUNT
5 66.365722 14.000000
6 58.243544 7.200000
7 49.582795 6.300000
8 40.347762 5.400000
9 30.500366 4.400000
10 20.000000 3.300000
This Schedule is not binding or effective with respect to the Agreement
or Equipment until executed on behalf of Lessor and Lessee by authorized
representatives of Lessor and Lessee, respectively.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION, THE CONNECTICUT LIGHT AND POWER
FOR ITSELF AND AS AGENT FOR CERTAIN COMPANY
PARTICIPANTS
By:\S\ William C. Badgio By:\S\ David R. McHale
Name: William C. Badgio Name: David R. McHale
Title: Transaction & Syndication Manager Title: Assistant Treasurer
Finance
ANNEX A
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
DESCRIPTION OF EQUIPMENT
Manufacturer Serial Numbers Type and Model Number of Unit
of Equipment
[See Attachment
No. 1 to Annex
A attached hereto]
Attachment No. 1 to Annex A
SCHEDULE NO. 001
Three (3) GE LM-6000 simple cycle aeroderivative gas turbines bearing the
serial numbers listed below, together with all equipment, materials,
engineering and construction services for the installation thereof, all as
more fully described in the following proposals:
1. GE Power Systems Equipment and Services Proposal for Gas Turbine
Capacity Addition Project - Commercial Volume - PROPOSAL NO 12581BG.
2. GE Power Systems Equipment and Services Proposal for Five (5) PGLM6000
60 Hertz Combustion Gas Turbine Package Power Plants - Supporting Volume 1 of
2 - PROPOSAL N. IPS-60213.
3. GE Power Systems Equipment and Services Proposal for Gas Turbine
Capacity Addition - Supporting Volume 2 of 2 - PROPOSAL NO. 296T9954.
As further detailed in the proposal letters dated April 29, 1996; May 7,
1996; May 15, 1996; May 17, 1996; and June 17, 1996; and finally, as
described in Purchase Order No. 802823 dated May 31, 1996, as amended on June
17, 1996.
Site Unit Number
11
12
13
Turbine Serial Number
185-213
185-204
185-168
Generator Serial Number
336x614
336x623
338x622
GE MK V Controls Serial Number
TIOJV531CA001004
OJXJN561CA001001
YIVJ572CA001001
GE 15 KV Switchgear DWG. No.
0357A4395
0357A4395
0357A4395
GE MCC Diag. No.
327B7188
327B5658
327B4832
EQUIPMENT LOCATION: Off Naugatuck Avenue, Devon (Town of Milford), CT 06460
SCHEDULE A
DESCRIPTION OF REAL PROPERTY
June 20, 1996
TO: D. P. Venora
FROM: E. F. Fuller - NU East, Ext. 6938
SUBJECT: Devon Jet Turbines
Lease Area
(83-1.1)
The following is a description for area to be leased in the Town of Milford,
County of New Haven, State of Connecticut.
That certain piece or parcel of land containing 23,200 square feet, more or
less, located about 2,000 feet northerly of Interstate Route 95 and about 80
feet easterly of the Housatonic River in the Town of Milford, County of New
Haven, State of Connecticut. Said parcel is shown as "Area to be Leased" on
a map hereinafter referred to, being bounded and described as follows:
Commencing at a point marking the northeasterly corner of the most northerly
turbine foundation and the northeasterly corner of the herein described
parcel; thence the following four (4) courses and distances across land of
the Lessor and being in part along the face of the turbine foundations: 15
degrees 24' 20" W 290.00 feet to a point, marking the southeasterly corner of
the herein described parcel; N 74 degrees 35' 40" W 80.00 feet to a point,
marking the northwesterly corner of the herein described parcel; and S 74
degrees 35' 40" E 80.00 feet to the point and place of commencement.
The "Area to be Leased" is more clearly designated and defined on a map
entitled "Plan Showing Area to be Leased for Turbine Units - Devon Station
Milford, Connecticut Scale: 1" = 40' Date: 6/20/96 Dwg. No. 21767.
THIS PAGE IS A GRAPHIC REPRESENTATION OF THE MAP OF THE "DESCRIPTION OF REAL
PROPERTY"
ANNEX B
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
[INTENTIONALLY OMITTED]
ANNEX C
TO SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation,
for Itself and as Agent for Certain Participants
Pursuant to the provisions of the above Schedule and Master Lease
Agreement (collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related invoice is in good condition and
appearance, installed (if applicable), and in working order; and (b) Lessee
accepts the Equipment for all purposes of the Lease and all attendant
documents. Nothing herein shall be deemed to prejudice the rights of Lessor
or Lessee against the Supplier.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; and (ii) the representations and warranties made
by Lessee pursuant to or under the Lease are true and correct on the date
hereof.
/S/ David R. McHale
Lessee's Authorized Representative
Dated: June 21, 1996
ANNEX D
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
STIPULATED LOSS VALUE
STIPULATED LOSS
PERIOD VALUE
0 100.0000000000
1 99.5233248113
2 99.0440924589
3 98.5622892246
4 98.0779013167
5 97.5909148695
6 97.1013159429
7 96.6090905220
8 96.1142245169
9 95.6167037619
10 95.1165140153
11 94.6136409591
12 94.1080701985
13 93.5997872614
14 93.0887775982
15 92.5750265810
16 92.0585195037
17 91.5392415811
18 91.0171779489
19 90.4923136627
20 89.9646336984
21 89.4341229510
22 88.9007662344
23 88.3645482813
24 87.8254537422
25 87.2834671858
26 86.7385730970
27 86.1907558786
28 85.6399996491
29 85.0862892429
30 84.5296062101
31 83.9699406155
32 83.4072710385
33 82.8415827726
34 82.2728598249
35 81.7010859155
36 81.1262446773
37 80.5483196554
38 79.9672943066
39 79.3831519969
40 78.7958760110
41 78.2054495322
42 77.6118556614
43 77.0150774067
44 76.4150976854
45 75.8118993229
46 75.2054650525
47 74.5957775149
48 73.9828192577
49 73.3665727348
50 72.7470203062
51 72.1241442369
52 71.4979266970
53 70.8683497609
54 70.2353954069
55 69.5990455165
56 68.9592818741
57 68.3160861664
58 67.6694399816
59 67.0193248095
60 66.3657220404
61 65.7086129648
62 65.0479787728
63 64.3838005536
64 63.7160592950
65 63.0447358827
66 62.3698111001
67 61.6912656273
68 61.0090800407
69 60.3232348127
70 59.6337103108
71 58.9404867972
72 58.2435444283
73 57.5428632541
74 56.8384232172
75 56.1302041531
76 55.4181857888
77 54.7023477427
78 53.9826695237
79 53.2591305309
80 52.5317100529
81 51.8003872672
82 51.0651412394
83 50.2359509230
84 49.5827951586
85 48.8356526731
86 48.0845020795
87 47.3293218760
88 46.5700904453
89 45.8067860543
90 45.0393868534
91 44.2678708754
92 43.4922160358
93 42.7124001310
94 41.9284008389
95 41.1401957173
96 40.3477622046
97 39.5510776142
98 38.7501191440
99 37.9448638853
100 37.1352887276
101 36.3213705566
102 35.5030880538
103 34.6804117955
104 33.8533242326
105 33.0217996896
106 32.1858143639
107 31.3453443252
108 30.5003655149
109 29.6508537454
110 28.7967846993
111 27.9381339285
112 27.0748768542
113 26.2069887653
114 25.3344448185
115 24.4572200369
116 23.5752893099
117 22.6886273921
118 21.7972089024
119 20.9010063240
120 0.0000000000
Initials:
/S/ WCB
Lessor
/S/ DCM
Lessee
ANNEX E
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
AMORTIZATION SCHEDULE
All rent payments are due the first day of the month.
Initials /S/ WCB
Lessor
/S/ DCM
Lessee
ANNEX E
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
AMORTIZATION SCHEDULE
All rent payments are due the first day of the month.
UNAMORTIZED
RENT PAYMENT DATE PRINCIPAL* PRINCIPAL BALANCE*
Aug-96 0.0000000000 100.0000000000
Sep-96 0.4766751887 99.5233248113
Oct-96 0.4792323524 99.0440924589
Nov-96 0.4818032343 98.5622892246
Dec-96 0.4843879079 96.0779013167
Jan-97 0.4869864472 97.5909148695
Feb-97 0.4895989268 97.1013159429
Mar-97 0.4922254208 96.6090905220
Apr-97 0.4948660051 96.1142245169
May-97 0.4975207550 95.6167037619
Jun-97 0.5001897466 95.1165140153
Jul-97 0.5028730582 94.6136409591
Aug-97 0.5055707806 94.1060701985
Sep-97 0.5082829371 93.5997872614
Oct-97 0.5110096632 93.0887775962
Nov-97 0.5137510172 92.5750265810
Dec-97 0.5165070773 92.0585195037
Jan-98 0.5192779228 91.5392415811
Feb-98 0.5220836323 91.0171779489
Mar-98 0.5248642861 90.4923136627
Apr-98 0.5276799643 89.9646336984
May-98 0.5305107475 89.4341229510
Jun-96 0.5333587166 88.9007682344
Jul-98 0.5362179531 88.3645482813
Aug-98 0.5390945390 87.8254537422
Sep-98 0.5419665586 87.2834671856
Oct-98 0.5448940886 86.7385730970
Nov-98 0.5478172184 86.1907558786
Dec-98 0.5507500295 85.6399996491
Jan-99 0.5537106061 85.0662892429
Feb-99 0.5566810328 84.5296082101
Mar-99 0.5596673946 83.9699406155
Apr-99 0.5626697770 83.4072710385
May-99 0.5858882659 82.8415827726
Jun-99 0.5687229477 82.2728598249
Jul-99 0.5717739094 81.7010859155
Aug-99 0.5748412382 81.1262446773
Sep-99 0.5779250219 80.5483196554
Oct-99 0.5810253488 79.9672943066
Nov-99 0.5841423077 79.3831519989
Dec-99 0.5872759878 78.7958760110
Jan-00 0.5904264788 78.2054495322
Feb-00 0.5935938709 77.6118556614
Mar-00 0.5967782546 77.0150774067
Apr-00 0.5999797213 76.4150976854
May-00 0.6031983625 75.8118993229
Jun-00 0.6064342704 75.2054650525
Jul-00 0.6096875376 74.5957775149
Aug-00 0.6129582572 73.9628192577
Sep-00 0.6162465228 73.3665727348
Oct-00 0.6195524287 72.7470203062
Nov-00 0.6228760893 72.1241442369
Dec-00 0.6262175399 71.4979266970
Jan-01 0.6295769361 70.8683497609
Feb-01 0.6329543540 70.2353954089
Mar-01 0.6363498904 69.5990455165
Apr-01 0.6397636424 68.9592818741
May-01 0.6431957078 68.3160661664
Jun-01 0.6466481847 67.6694399616
Jul-01 0.6501151721 67.0193248095
Aug-01 0.6538027891 66.3657220404
Sep-01 0.6571090758 65.7066129648
Oct-01 0.6606341920 65.0479787728
Nov-01 0.6641782192 64.3838005536
Dec-01 0.6677412586 63.7160592950
Jan-02 0.6713234122 63.0447358827
Feb-02 0.6749247826 62.3696111001
Mar-02 0.6785454729 61.6912656273
Apr-02 0.6821855866 61.0090800407
May-02 0.6858452280 60.3232348127
Jun-02 0.6895245019 59.6337103108
Jul-02 0.6932235136 58.9404867972
Aug-02 0.6969423689 58.2435444283
Sep-02 0.7006811743 57.5428632541
Oct-02 0.7044400368 56.8384232172
Nov-02 0.7082190641 56.1302041531
Dec-02 0.7120183643 55.4181857888
Jan-03 0.7158380461 54.7023477427
Feb-03 0.7196782190 53.9826695237
Mar-03 0.7235389928 53.2591305309
Apr-03 0.7274204780 52.5317100529
May-03 0.7313227858 51.8003872672
Jun-03 0.7352460278 51.0651412394
Jul-03 0.7391903164 50.3259509230
Aug-03 0.7431557644 49.5827951586
Sep-03 0.7471424855 48.8356526731
Oct-03 0.7511505936 48.0645020795
Nov-03 0.7551802035 47.3293218760
Dec-03 0.7592314307 46.5700904453
Jan-04 0.7633043910 45.8067880543
Feb-04 0.7673992010 45.0393868534
Mar-04 0.7715159779 44.2678706754
Apr-04 0.7758548397 43.4922160358
May-04 0.7798159047 42.7124001310
Jun-04 0.7839992921 41.9284006289
Jul-04 0.7882051217 41.1401957173
Aug-04 0.7924335137 40.3477622036
Sep-04 0.7966845893 39.5510776142
Oct-04 0.8009584702 38.7501191440
Nov-04 0.8052552787 37.9448638653
Dec-04 0.8095751377 37.1352887276
Jan-05 0.8139181710 36.3213705566
Feb-05 0.8182845029 35.5030660538
Mar-05 0.8226742583 34.6804117955
Apr-05 0.8270875629 33.8533242326
May-05 0.8315245430 33.0217996896
Jun-05 0.8359853257 32.1858143639
Jul-05 0.8404700387 31.3453443252
Aug-05 0.8449788102 30.5003655149
Sep-05 0.8495117695 29.6508537454
Oct-05 0.8540690482 28.7967846993
Nov-05 0.8586507707 27.9381339285
Dec-05 0.8632570744 27.0748768542
Jan-08 0.8678880889 26.2069887653
Feb-08 0.8725439468 25.3344448185
Mar-06 0.8772247816 24.4572200369
Apr-06 0.8819307270 23.5752893099
May-06 0.8866619179 22.6886273921
Jun-06 0.8914184896 21.7972069024
Jul-06 0.8962005784 20.9010083240
Aug-06 20.9010083240 0.0000000000
Initials:/S/ WCB
Lessor
/S/ DCM
Lessee
*The Principal and Unamortized Principal Balance as of any Rent Payment Date
shall be equal to the Capitalized Lessor's Cost of such unit multiplied by
the appropriate percentage derived from the above table.
ANNEX F
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
RETURN PROVISIONS: In addition to the provisions provided for in Section X
of this Lease, and provided that Lessee has elected not to exercise its
purchase option pursuant to Section XVIII(c) of the Lease, Lessee shall, at
its expense:
(a) With respect to maintenance, Lessee may not discriminate in favor
of similar equipment owned by Lessee as against the Equipment with respect to
scheduling of maintenance, parts or service.
(b) The Equipment shall not be taken out of commercial operation in
Lessee's business as a public utility.
(c) Lessor, at its sole discretion, may, from time to time, inspect the
Equipment at Lessor's sole expense. If any of the Equipment is not operating
within manufacturer's specifications or in accordance with current safe
utility practices, Lessor will communicate these discrepancies to Lessee in
writing. Lessee shall have thirty (30) days to rectify these discrepancies
or respond to the report at its sole expense. Lessee shall pay all expenses
for the re-inspection by the Lessor-appointed expert, if corrective measures
are required.
(d) If Lessee intends to return the Equipment at the expiration or
earlier termination of the Term, Lessee shall provide Lessor with one hundred
eighty (180) days' prior written notice (the "Return Notice"). If Lessee
gives Lessor the Return Notice, this Paragraph (d) through and including
Paragraph (p) shall be applicable.
(e) Lessee shall provide to Lessor, at least one hundred eighty (180)
days prior to lease termination a detailed inventory of all components of the
Equipment with consideration to the conditions set forth in Section VI
("Service") of the Lease. The inventory shall include but not be limited to
a detailed listing of all items of the Equipment by both the model and serial
number for all components comprising this Lease.
(f) At least one hundred eighty (180) days prior to the expiration or
earlier termination of the Term, Lessee shall (1) upon receiving reasonable
notice from Lessor, make the Equipment available for operational inspections
(where applicable) by potential purchasers; (2) cause the manufacturer(s), or
other persons expressly authorized by the manufacturer and/or Lessor, to
inspect, examine and test all material and workmanship to ensure the
Equipment is operating within the manufacturer's specifications; (3) provide
to Lessor a written report from the authorized inspector detailing said
inspection and condition of the Equipment; (4) if during such inspection,
examination or test, the authorized inspector finds any of the material or
workmanship to be defective or the Equipment not operating within the
manufacturer's specifications, then Lessee shall repair or replace such
defective material, and after corrective measures are completed, Lessee will
provide for another inspection of the Equipment by the authorized inspector
as outlined above.
(g) At least ninety (90) days prior to the expiration or earlier
termination of the Term and upon request by Lessor, Lessee shall provide, or
cause the Supplier(s) to provide to Lessor, the following documents: (1) one
set of service and operating manuals including replacements and/or additions
thereto, such that all documentation is completely up to date; and (2) one
set of documents detailing equipment configuration, hardware maps, operating
requirements, maintenance records, and other technical data concerning the
set-up and operation of the Equipment including replacements and additions
thereto, such that all documentation is completely up to date.
(h) A potential purchaser of the Equipment shall provide for the
deinstallation, packaging and transportation of the Equipment to include, but
not limited to the following: (1) the manufacturer's representative shall
de-install all Equipment (including all wire, cable and mounting hardware);
(2) the Equipment shall be packed properly and in accordance with the
manufacturer's recommendation, given its destination and mode of transport;
and (3) such potential purchaser shall transport the Equipment in a manner
consistent with the manufacturer's recommendations and practices. In the
event the Lease expires or terminates without a purchaser for the Equipment,
Lessee shall remain liable for all items outlined in this Paragraph (h).
(i) Upon expiration or termination of the Lease, a potential purchaser
of the Equipment shall obtain and pay for a policy of transit insurance for
the delivery period in an amount equal to the replacement value of the
Equipment with the Lessor named as loss payee on all such policies of
insurance, and provide transportation to locations anywhere in the
continental United States, Canada and Mexico as selected by Lessor. In the
event the Lease expires or terminates without a purchaser for the Equipment,
Lessee shall remain liable for all of the items outlined in this Paragraph
(i).
(j) Lessee shall provide safe, secure storage for the Equipment at the
Devon, Connecticut site (the "Site") for a period of up to one hundred eighty
(180) days after expiration or termination of the Lease at an accessible
location satisfactory to Lessor.
(k) Upon expiration or earlier termination of the Term, all Equipment
shall be cleaned and cosmetically acceptable, and in such condition so that
it may be immediately installed and placed into use in a similar operating
environment.
(l) Lessee shall ensure that all Equipment and equipment operation,
including emissions, conform to all applicable local, state, Environmental
Protection Agency ("EPA"), and Federal laws, health and safety guidelines
including current emission standards applicable to the potential purchasers.
(m) If available, Lessee shall make available for a period of three
hundred sixty five (365) days following successful re-installation and test
run of the Equipment, as required, any engineering and technical personnel
necessary for the training of personnel with respect to the operation,
maintenance and repair of the Equipment (said engineering and technical
personnel will be made available by Lessee for an additional sixty (60) day
period for consultation regarding the operation of the Equipment), and the
purchaser of the Equipment shall be responsible for Lessee's out-of-pocket
expenses incurred in connection with providing such engineering and technical
personnel.
(n) Lessee shall be solely responsible for the cost of all repairs,
alterations, inspections, appraisals, storage charges, insurance costs,
demonstration costs, and other related costs necessary to place the Equipment
in such condition as to be in complete compliance with the Lease.
(o) Lessor shall have the right to attempt resale of the Equipment from
Lessee's Site with Lessee's full cooperation and assistance for a period of
one hundred twenty (120) days from the expiration or earlier termination of
the Term. During this period, the Equipment must remain operational with the
necessary electric power, lighting, heat, air-conditioning, water, fuel and
compressed air necessary to maintain and demonstrate the Equipment to any
potential buyer.
(p) Upon return of the Equipment, Lessee shall pay to Lessor such
amount as is required to reimburse Lessor for the costs necessary to perform
any outstanding maintenance work (if required) on the Equipment and a
pro-rata assessment of the cost of combustion, hot gas path, and major
repairs based upon actual hours of use by Lessee of the Equipment through the
date of expiration or earlier termination of the Term.
Initials: /S/ WCB
Lessor
/S/ DCM
Lessee
ANNEX G
TO
SCHEDULE NO. 001
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
ESTOPPEL/WAIVER AGREEMENT
June 21, 1996
Bankers Trust Company
Trustee under Indenture of Mortgage and
Deed of Trust dated as of May 1, 1921,
from The Connecticut Light and Power Company
One Bankers Trust Plaza
New York, New York 10915
Gentlemen/Ladies:
General Electric Capital Corporation, for Itself and as Agent for
Certain Participants ("Lessor"), has entered into, or is about to enter into,
a lease or similar agreement (the "Lease") with The Connecticut Light and
Power Company ("Lessee"), pursuant to which Lessee has leased or will lease
from Lessor certain personal property described in the attached Annex A (such
property, together with any replacements thereof, being referred to as the
"Personal Property"). Some or all of the Personal Property is, or will be,
located at certain premises described on Annex A (the "Premises"). This
letter is being sent to you because of your interest in the Premises.
By your signature below, you hereby agree (and we shall rely on your
agreement) that: (i) the Personal Property is, and shall remain, personal
property regardless of the method by which it may be, or become, affixed to
the Premises; (ii) your interest in the Personal Property and any proceeds
thereof (including, without limitation, proceeds of any insurance therefor)
shall be, and remain, subject to the ownership interests of Lessor (until and
unless Lessor shall formally release or transfer its interest in the Personal
Property to Lessee); (iii) Lessor, and its employees and agents, shall have
the right with prior notice, from time to time, to enter the Premises for the
purpose of inspecting the Personal Property; and (iv) Lessor, and its
employees and agents, shall have the right, upon any default by Lessee under
the Lease, to enter the Premises and to remove the Personal Property from the
Premises. Lessor agrees to reimburse you for any damages actually caused to
the Premises by Lessor, or its employees or agents, during any such removal.
These agreements shall be binding upon, and shall inure to the benefit of,
any successors and assigns of the parties hereto.
We appreciate your cooperation in this matter of mutual interest.
GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT FOR CERTAIN
PARTICIPANTS
By: /S/ William C. Badgio
Name: Willam C. Badgio
Title: Transaction and Syndication Manager
AGREED TO AND ACCEPTED BY:
By: /S/ Scott Thiel
Name: Scott Thiel
Title: Assistant Vice President
Date: June 21, 1996
Interest in the Premises (check applicable box)
Owner
Mortgagee
Landlord
Realty Manager
ATTACHMENT TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT
1. SECURED PARTY: GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS
AGENT FOR CERTAIN PARTICIPANTS
DEBTOR: THE CONNECTICUT LIGHT AND POWER COMPANY
2. DESCRIPTION OF PROPERTY:
The equipment leased pursuant to that certain Master Lease Agreement
dated as of the 21st day of June, 1996, between Secured Party, as lessor, and
Debtor, as lessee, together with all accessions, substitutions and
replacements therefor, and proceeds (including insurance proceeds) thereof
(but without power of sale); more fully described on the attached Annex(es)
A.
EQUIPMENT SCHEDULE
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
Lessor & Mailing Address: Lessee & Mailing Address:
GENERAL ELECTRIC CAPITAL CORPORATION, THE CONNECTICUT LIGHT AND POWER
FOR ITSELF AND AS AGENT FOR CERTAIN COMPANY
PARTICIPANTS 107 Selden Street
303 International Circle Berlin, Connecticut 06037-1616
Suite 300
Hunt Valley, Maryland 21031
This Equipment Schedule is executed pursuant to, and incorporates by
reference the terms and conditions of, and capitalized terms not defined
herein shall have the meanings assigned to them in, the Master Lease
Agreement identified above ("Agreement;" said Agreement and this Schedule
being collectively referred to as "Lease"). This Equipment Schedule,
incorporating by reference the Agreement, constitutes a separate instrument
of lease.
A. Equipment.
Pursuant to the terms of the Lease, Lessor agrees to acquire and lease
to Lessee the Equipment listed on Annex A attached hereto and made a part
hereof.
B. Financial Terms.
1. Capitalized Lessor's Cost: $16,985,935.77 (to be adjusted as
provided in Paragraph C.1. below).
2. Basic Term: sixty (60) months.
3. Basic Term Commencement Date: August 1, 1996.
4. Equipment Location: Off Naugatuck Avenue, Devon, Connecticut 06460.
5. Lessee Federal Tax ID No.: 06-0303850
6. Supplier: GE Power Systems
7. Last Delivery Date: August 1, 1996.
8. Lessee agrees and acknowledges that the Capitalized Lessor's Cost
of the Equipment as stated on the Schedule is equal to the fair
market value of the Equipment on the date hereof.
9. Renewal Terms: five (5) twelve (12) month terms.
10. Maximum Lease Term: Ten (10) years.
11. Stipulated Loss Values: See Annex D.
C. Term and Rent.
1. Interim Period. For the period from and including the Lease
Commencement Date to the Basic Term Commencement Date ("Interim Period"),
interest shall accrue at the Interest Rate on the Capitalized Lessor's Cost
of the Equipment, which amount shall be capitalized and added to the
Capitalized Lessor's Cost on the Basic Term Commencement Date.
2. Basic Term and Renewal Term Rent. Commencing on September 1, 1996,
and on the same day of each month thereafter (each, a "Rent Payment Date")
during the Basic Term ("Basic Term Rent") and any Renewal Term ("Renewal Term
Rent"), Lessee shall pay as Rent monthly installments, in arrears, calculated
to amortize the Capitalized Lessor's Cost of the Equipment over the Term,
together with Lessor's return on its investment, each installment in the
principal amount specified on the attached Amortization Schedule together
with interest on the Unamortized Principal Balance specified on the attached
Amortization Schedule as of the immediately preceding Rent Payment Date
(after application of the Rent paid on such date) at the Interest Rate for
the Interest Period following such immediately preceding Rent Payment Date.
Interest shall be calculated on the basis of a 360 day year for the actual
number of days elapsed.
As used herein, the following terms shall have the following meanings:
"Interest Period" shall mean the period beginning on the Lease
Commencement Date and ending on the next Rent Payment Date, and each
subsequent monthly period.
"Interest Rate" shall mean that percentage per annum calculated as the
sum of (a) the LIBOR Rate redetermined monthly, plus (b) during the Basic
Term, one hundred (100) basis points (subject to adjustment as specified in
the next sentence), and during any Renewal Term, such number of basis points
as may mutually be agreed upon by Lessor and Lessee, commensurate with the
then credit quality of Lessee (such credit quality to be based on the then
current evaluation of Lessee by a reputable credit rating agency), pursuant
to Section XVIII (a) of the Agreement. If during the Basic Term, Lessee's
credit rating is downgraded by either Standard and Poor's Ratings Group, a
division of McGraw-Hill, Inc. ("S&P") or Moody's Investors Service, Inc.
("Moody's"), then the Interest Rate shall mean that percentage per annum
calculated as the sum of (x) the LIBOR Rate redetermined monthly, plus (y)
one hundred (100) basis points if Lessee carries either a S&P BBB- or Moody's
Baa3 credit rating; one hundred twenty-five (125) basis points if Lessee
carries either a S&P BB+ or Moody's Ba1 credit rating; one hundred fifty
(150) basis points if Lessee carries either a S&P BB or Moody's Ba2 credit
rating; one hundred seventy-five (175) basis points if Lessee carries either
a S&P BB- or Moody's Ba3 credit rating; and two hundred (200) basis points if
Lessee carries either a S&P B+ or lower credit rating or Moody's B1 or lower
credit rating. Any such change in the Interest Rate shall be effective
immediately upon any and each change in Lessee's credit rating.
"LIBOR Rate" shall mean, with respect to any Interest Period occurring
during the Term, an interest rate per annum equal at all times during such
Interest Period to the quotient of (1) the rate per annum as determined on
the basis of the average of the rates offered by a majority of the banks in
the London interbank market for deposits in U.S. Dollars for thirty (30)
days, to the extent the rates offered by these banks appear on Telerate Page
3750 two (2) Business Days before the commencement of such Interest Period,
divided by (2) a number equal to 1.00 minus the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of the LIBOR
Reserve Requirements current on the date two (2) Business Days prior to the
first day of the Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (a sample of which is attached hereto as Exhibit A) (or such
other page as may replace Page 3750 on that service or such other service as
may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association Interest
Settlement Rates for U.S. Dollar deposits).
"LIBOR Reserve Requirements" shall mean the daily average for the
applicable Interest Period of the maximum rate applicable to Lessor or its
Participants at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or
any successor) on "Eurocurrency liabilities", as defined in such Board's
Regulation D (or in respect of any other category of liabilities that include
deposits by reference to which the interest rates on Eurodollar loans is
determined or any category of extensions of credit or other assets that
include loans by non-United States offices of any lender to United States
residents), having a term equal to such Interest Period, subject to any
amendments of such reserve requirement by such Board or its successor, taking
into account any transitional adjustments thereto.
If at any time Lessor or any Participant (or, without duplication, the
bank holding company of which such Participant is a subsidiary) determines
that either adequate and reasonable means do not exist for ascertaining the
LIBOR Rate, or it becomes impractical for Lessor or any Participant to obtain
funds to make or maintain the financing hereunder with interest at the LIBOR
Rate, or Lessor or any Participant shall have determined that the LIBOR Rate
will not adequately and fairly reflect the cost to Lessor or any Participant
of making, maintaining, or funding the transaction hereunder at the LIBOR
Rate, or Lessor or any Participant reasonably determines that, as a result of
changes to applicable law after the date of execution of the Agreement, or
the adoption or making after such date of any interpretations, directives or
regulations (whether or not having the force of law) by any court,
governmental authority or reserve bank charged with the interpretation or
administration thereof, it shall be or become unlawful or impossible to make,
maintain, or fund the transaction hereunder at the LIBOR Rate, then Lessor
promptly shall give notice to Lessee of such determination, and Lessor and
Lessee shall negotiate in good faith a mutually acceptable alternative method
of calculating the Interest Rate and shall execute and deliver such documents
as reasonably may be required to incorporate such alternative method of
calculating the Interest Rate in this Schedule, within thirty (30) days after
the date of Lessor's notice to Lessee. If the parties are unable mutually to
agree to such alternative method of calculating the Interest Rate in a timely
fashion, on the Rent Payment Date next succeeding the expiration of such
thirty (30) day period Lessee shall purchase all (but not less than all) of
the Equipment described on all Schedules executed pursuant to the Agreement
and shall pay to Lessor, in cash, the purchase price for the Equipment so
purchased, determined as hereinafter provided. The purchase price of the
Equipment shall be an amount equal to the Stipulated Loss Value of such
Equipment calculated in accordance with Annex D as of the date of payment,
together with all rent and other sums then due on such date, plus all taxes
and charges upon sale and all other reasonable and documented expenses
incurred by Lessor in connection with such sale. Upon satisfaction of the
conditions specified in this paragraph, Lessor will transfer, on an AS IS
BASIS, all of Lessor's interest in and to the Equipment. Lessor shall not be
required to make and may specifically disclaim any representation or warranty
as to the condition of the Equipment and other matters (except that Lessor
shall warrant that it has conveyed whatever interest it received in the
Equipment, free and clear of any liens or encumbrances created by Lessor).
Lessor shall execute and deliver to Lessee such Uniform Commercial Code
statements of termination and other documents and instruments as reasonably
may be required in order to convey or terminate any interest of Lessor in and
to the Equipment.
3. If any Rent Payment Date is not a Business Day, the Rent otherwise
due on such date shall be payable on the immediately preceding Business Day.
As used herein, "Business Day" shall mean any day other than Saturday,
Sunday, and any day on which banking institutions located in the States of
Connecticut or Maryland are authorized by law or other governmental action to
close.
4. Lessee shall pay to Lessor, for the account of each Participant,
from time to time the amounts as such Participant may determine to be
necessary to compensate it for any increased costs which such Participant
determines are attributable to its making or maintaining its interest in the
Lease and the Equipment (the "Interest") or any reduction in any amount
receivable by such Participant in respect of any such Interest (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change (as defined below)
which:
(i) changes the basis of taxation of any amounts payable to Lessor
for the account of such Participant in respect of such Interest (other than
taxes imposed on or measured by the overall net income of such Participant in
respect of the Interest by the jurisdiction in which such Participant has its
principal office or its lending office, or where the Participant is otherwise
subject to taxation); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Participant; or
(iii) imposes any other condition affecting this Lease or any
Interest.
For purposes hereof, "Regulatory Change" shall mean any change after the date
of this Lease in United States Federal, state or foreign law or regulations
(including, without limitation, Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as amended or supplemented from
time to time) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks including
any Participant or under any United States Federal, state or foreign law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
Without limiting the effect of the foregoing paragraph (but without
duplication), Lessee shall pay to Lessor, for the account of each
Participant, from time to time on request such amounts as such Participant
may determine to be necessary to compensate such Participant (or, without
duplication, the bank holding company of which such Participant is a
subsidiary) for any increased costs which it determines are attributable to
the maintenance by such Participant (or any lending office or such bank
holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law) of any court or
governmental or monetary authority (i) following any Regulatory Change or
(ii) implementing any risk-based capital guideline or requirement (whether or
not having the force of law and whether or not the failure to comply
therewith would be unlawful) heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level
the Basle Accord (including, without limitation, the Final Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R.
Part 208, Appendix A; 12 C.F.R. Part 225, Appendix A) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller of the
Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of such
Participant's Interest (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of
such Participant (or any lending office or bank holding company) to a level
below that which such Participant (or any lending office or bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request). For purposes of this paragraph, "Basle Accord" shall
mean the proposals for risk-based capital framework described by the Basle
Committee on Banking Regulations and Supervisory Practices in its paper
entitled "International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, modified and supplemented and in
effect from time to time or any replacement thereof.
Each Participant shall notify Lessee of any event occurring after the
date of this Lease that will entitle such Participant to compensation under
the preceding two paragraphs as promptly as practicable, but in any event
within forty-five (45) days, after such Participant obtains actual knowledge
thereof; provided, that (i) if such Participant fails to give such notice
within forty-five (45) days after it obtains actual knowledge of such an
event, such Participant shall, with respect to compensation payable pursuant
to the preceding two paragraphs in respect of any costs resulting from such
event, only be entitled to payment under the referenced paragraphs for costs
incurred from and after the date forty-five (45) days prior to the date that
such Participant does give such notice, and (ii) such Participant will
designate a different lending office for the Interest if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Participant, be disadvantageous to such
Participant. Each Participant will furnish to Lessee a certificate setting
forth the basis and amount of each request by such Participant for
compensation under the preceding two paragraphs. Determinations and
allocations by each Participant for purposes of the preceding two paragraphs
shall be conclusive, absent manifest error.
D. Insurance.
1. Public Liability: $25,000,000.00, total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
E. Fixed Purchase Price and Residual Risk Amount
END OF YEAR FIXED PURCHASE PRICE RESIDUAL RISK AMOUNT
5 66.365722 14.000000
6 58.243544 7.200000
7 49.582795 6.300000
8 40.347762 5.400000
9 30.500366 4.400000
10 20.000000 3.300000
expressed as a percent of the Capitalized Lessor's Cost of the Equipment.
This Schedule is not binding or effective with respect to the Agreement
or Equipment until executed on behalf of Lessor and Lessee by authorized
representatives of Lessor and Lessee, respectively.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION, THE CONNECTICUT LIGHT AND POWER
FOR ITSELF AND AS AGENT FOR CERTAIN COMPANY
PARTICIPANTS
By: /S/ William C. Badgio By: /S/ David R. McHale
Name: William C. Badgio Name: David R. McHale
Title: Transaction & Syndication Title: Assistant Treasurer of
Manager Finance
ANNEX A
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
DESCRIPTION OF EQUIPMENT
Manufacturer
Serial Numbers
Type and Model of Equipment
Number of Units
Cost per Unit
[See Attachment No. 1 attached hereto]
Attachment No. 1 to Annex A
SCHEDULE NO. 002
One (1) GE LM-6000 simple cycle aeroderivative gas turbine bearing the serial
number listed below, together with all equipment, materials, engineering and
construction services for the installation thereof, all as more fully
described in the following proposals:
1. GE Power Systems Equipment and Services Proposal for Gas Turbine
Capacity Addition Project - Commercial Volume - PROPOSAL NO. 12581BG.
2. GE Power Systems Equipment and Services Proposal for Five (5) PGLM8000
60 Hertz Combustion Gas Turbine Package Power Plants - Supporting Volume 1 of
2 - PROPOSAL NO. IPS-60213.
3. GE Power Systems Equipment and Services Proposal for Gas Turbine
Capacity Addition - Supporting Volume 2 of 2 - PROPOSAL NO. 298T9954.
As further detailed in the proposal letters dated April 29, 1996; May 7,
1996; May 15, 1996; May 17, 1996; and June 17, 1996; and finally, as
described in Purchase Order No. 802823 dated May 31, 1996, as amended on June
17, 1996.
Site Number
14
Turbine Serial Number
185-172
Generator Serial Number
336X624
GE MK V Controls Serial Number
OJYJV502CA001001
GE 15 KV Switchgear DWG. No.
0357A4395
GE MCC Diag. No.
319B8738
EQUIPMENT LOCATION: Off Naugatuck Avenue, Devon (Town of Milford), CT 06460
SCHEDULE A
DESCRIPTION OF REAL PROPERTY
TO: D. P. Venora
FROM: E. F. Fuller - NU East, Ext. 6938
SUBJECT: Devon Jet Turbines
Lease Area
(83-1.1)
The following is a description for area to be leased in the Town of Milford,
County of New Haven, State of Connecticut.
That certain piece or parcel of land containing 23,200 square feet, more or
less, located about 2,000 feet northerly of Interstate Route 95 and about 80
feet easterly of the Housatonic River in the Town of Milford, County of New
Haven, State of Connecticut. Said parcel is shown as "Area to be Leased" on
a map hereinafter referred to, being bounded and described as follows:
Commencing at a point marking the northeasterly corner of the most northerly
turbine foundation and the northeasterly corner of the herein described
parcel; thence the following four (4) courses and distances across land of
the Lessor and being in part along the face of the turbine foundations: 15
degrees 24' 20" W 290.00 feet to a point, marking the southeasterly corner of
the herein described parcel; N 74 degrees 35' 40" W 80.00 feet to a point,
marking the northwesterly corner of the herein described parcel; and S 74
degrees 35' 40" E 80.00 feet to the point and place of commencement.
The "Area to be Leased" is more clearly designated and defined on a map
entitled "Plan Showing Area to be Leased for Turbine Units - Devon Station
Milford, Connecticut Scale: 1" = 40' Date: 6/20/96 Dwg. No. 21767.
[THIS PAGE IS A GRAPHIC REPRESENTATION OF THE MAP OF "THE DESCRIPTION OF REAL
PROPERTY"]
ANNEX B
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
[THIS PAGE LEFT BLANK INTENTIONALLY]
ANNEX C
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation,
for Itself and as Agent for Certain Participants
Pursuant to the provisions of the above Schedule and Master Lease
Agreement (collectively, the "Lease"), Lessee hereby certifies and warrants
that (a) all Equipment listed in the related invoice is in good condition and
appearance, installed (if applicable), and in working order; and (b) Lessee
accepts the Equipment for all purposes of the Lease and all attendant
documents. Nothing herein shall be deemed to prejudice the rights of Lessor
or Lessee against the Supplier.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; and (ii) the representations and warranties made
by Lessee pursuant to or under the Lease are true and correct on the date
hereof.
/S/David R. McHale
Lessee's Authorized Representative
Dated: June 21, 1996
ANNEX D
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
STIPULATED LOSS
PERIOD VALUE
0 100.0000000000
1 99.5233248113
2 99.0440924589
3 98.5622892246
4 98.0779013167
5 97.5909148695
6 97.1013159429
7 96.6090905220
8 96.1142245169
9 95.6167037619
10 95.1165140153
11 94.6136409591
12 94.1080701985
13 93.5997872614
14 93.0887775982
15 92.5750265810
16 92.0585195037
17 91.5392415811
18 91.0171779489
19 90.4923136627
20 89.9646336984
21 89.4341229510
22 88.9007662344
23 88.3645482813
24 87.8254537422
25 87.2834671858
26 86.7385730970
27 86.1907558786
28 85.6399996491
29 85.0862892429
30 84.5296062101
31 83.9699406155
32 83.4072710385
33 82.8415827726
34 82.2728598249
35 81.7010859155
36 81.1262446773
37 80.5483196554
38 79.9672943066
39 79.3831519969
40 78.7958760110
41 78.2054495322
42 77.6118556614
43 77.0150774067
44 76.4150976854
45 75.8118993229
46 75.2054650525
47 74.5957775149
48 73.9828192577
49 73.3665727348
50 72.7470203062
51 72.1241442369
52 71.4979266970
53 70.8683497609
54 70.2353954069
55 69.5990455165
56 68.9592818741
57 68.3160861664
58 67.6694399816
59 67.0193248095
60 66.3657220404
61 65.7086129648
62 65.0479787728
63 64.3838005536
64 63.7160592950
65 63.0447358827
66 62.3698111001
67 61.6912656273
68 61.0090800407
69 60.3232348127
70 59.6337103108
71 58.9404867972
72 58.2435444283
73 57.5428632541
74 56.8384232172
75 56.1302041531
76 55.4181857888
77 54.7023477427
78 53.9826695237
79 53.2591305309
80 52.5317100529
81 51.8003872672
82 51.0651412394
83 50.2359509230
84 49.5827951586
85 48.8356526731
86 48.0845020795
87 47.3293218760
88 46.5700904453
89 45.8067860543
90 45.0393868534
91 44.2678708754
92 43.4922160358
93 42.7124001310
94 41.9284008389
95 41.1401957173
96 40.3477622046
97 39.5510776142
98 38.7501191440
99 37.9448638853
100 37.1352887276
101 36.3213705566
102 35.5030880538
103 34.6804117955
104 33.8533242326
105 33.0217996896
106 32.1858143639
107 31.3453443252
108 30.5003655149
109 29.6508537454
110 28.7967846993
111 27.9381339285
112 27.0748768542
113 26.2069887653
114 25.3344448185
115 24.4572200369
116 23.5752893099
117 22.6886273921
118 21.7972089024
119 20.9010063240
120 0.0000000000
Initials:
/S/ WCB
Lessor
/S/ DCM
Lessee
ANNEX E
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
AMORTIZATION SCHEDULE
All rent payments are due the first day of the month.
UNAMORTIZED
RENT PAYMENT DATE PRINCIPAL* PRINCIPAL BALANCE*
Aug-96 0.0000000000 100.0000000000
Sep-96 0.4766751887 99.5233248113
Oct-96 0.4792323524 99.0440924589
Nov-96 0.4818032343 98.5622892246
Dec-96 0.4843879079 96.0779013167
Jan-97 0.4869864472 97.5909148695
Feb-97 0.4895989268 97.1013159429
Mar-97 0.4922254208 96.6090905220
Apr-97 0.4948660051 96.1142245169
May-97 0.4975207550 95.6167037619
Jun-97 0.5001897466 95.1165140153
Jul-97 0.5028730582 94.6136409591
Aug-97 0.5055707806 94.1060701985
Sep-97 0.5082829371 93.5997872614
Oct-97 0.5110096632 93.0887775962
Nov-97 0.5137510172 92.5750265810
Dec-97 0.5165070773 92.0585195037
Jan-98 0.5192779228 91.5392415811
Feb-98 0.5220836323 91.0171779489
Mar-98 0.5248642861 90.4923136627
Apr-98 0.5276799643 89.9646336984
May-98 0.5305107475 89.4341229510
Jun-96 0.5333587166 88.9007682344
Jul-98 0.5362179531 88.3645482813
Aug-98 0.5390945390 87.8254537422
Sep-98 0.5419665586 87.2834671856
Oct-98 0.5448940886 86.7385730970
Nov-98 0.5478172184 86.1907558786
Dec-98 0.5507500295 85.6399996491
Jan-99 0.5537106061 85.0662892429
Feb-99 0.5566810328 84.5296082101
Mar-99 0.5596673946 83.9699406155
Apr-99 0.5626697770 83.4072710385
May-99 0.5858882659 82.8415827726
Jun-99 0.5687229477 82.2728598249
Jul-99 0.5717739094 81.7010859155
Aug-99 0.5748412382 81.1262446773
Sep-99 0.5779250219 80.5483196554
Oct-99 0.5810253488 79.9672943066
Nov-99 0.5841423077 79.3831519989
Dec-99 0.5872759878 78.7958760110
Jan-00 0.5904264788 78.2054495322
Feb-00 0.5935938709 77.6118556614
Mar-00 0.5967782546 77.0150774067
Apr-00 0.5999797213 76.4150976854
May-00 0.6031983625 75.8118993229
Jun-00 0.6064342704 75.2054650525
Jul-00 0.6096875376 74.5957775149
Aug-00 0.6129582572 73.9628192577
Sep-00 0.6162465228 73.3665727348
Oct-00 0.6195524287 72.7470203062
Nov-00 0.6228760893 72.1241442369
Dec-00 0.6262175399 71.4979266970
Jan-01 0.6295769361 70.8683497609
Feb-01 0.6329543540 70.2353954089
Mar-01 0.6363498904 69.5990455165
Apr-01 0.6397636424 68.9592818741
May-01 0.6431957078 68.3160661664
Jun-01 0.6466481847 67.6694399616
Jul-01 0.6501151721 67.0193248095
Aug-01 0.6538027891 66.3657220404
Sep-01 0.6571090758 65.7066129648
Oct-01 0.6606341920 65.0479787728
Nov-01 0.6641782192 64.3838005536
Dec-01 0.6677412586 63.7160592950
Jan-02 0.6713234122 63.0447358827
Feb-02 0.6749247826 62.3696111001
Mar-02 0.6785454729 61.6912656273
Apr-02 0.6821855866 61.0090800407
May-02 0.6858452280 60.3232348127
Jun-02 0.6895245019 59.6337103108
Jul-02 0.6932235136 58.9404867972
Aug-02 0.6969423689 58.2435444283
Sep-02 0.7006811743 57.5428632541
Oct-02 0.7044400368 56.8384232172
Nov-02 0.7082190641 56.1302041531
Dec-02 0.7120183643 55.4181857888
Jan-03 0.7158380461 54.7023477427
Feb-03 0.7196782190 53.9826695237
Mar-03 0.7235389928 53.2591305309
Apr-03 0.7274204780 52.5317100529
May-03 0.7313227858 51.8003872672
Jun-03 0.7352460278 51.0651412394
Jul-03 0.7391903164 50.3259509230
Aug-03 0.7431557644 49.5827951586
Sep-03 0.7471424855 48.8356526731
Oct-03 0.7511505936 48.0645020795
Nov-03 0.7551802035 47.3293218760
Dec-03 0.7592314307 46.5700904453
Jan-04 0.7633043910 45.8067880543
Feb-04 0.7673992010 45.0393868534
Mar-04 0.7715159779 44.2678706754
Apr-04 0.7758548397 43.4922160358
May-04 0.7798159047 42.7124001310
Jun-04 0.7839992921 41.9284006289
Jul-04 0.7882051217 41.1401957173
Aug-04 0.7924335137 40.3477622036
Sep-04 0.7966845893 39.5510776142
Oct-04 0.8009584702 38.7501191440
Nov-04 0.8052552787 37.9448638653
Dec-04 0.8095751377 37.1352887276
Jan-05 0.8139181710 36.3213705566
Feb-05 0.8182845029 35.5030660538
Mar-05 0.8226742583 34.6804117955
Apr-05 0.8270875629 33.8533242326
May-05 0.8315245430 33.0217996896
Jun-05 0.8359853257 32.1858143639
Jul-05 0.8404700387 31.3453443252
Aug-05 0.8449788102 30.5003655149
Sep-05 0.8495117695 29.6508537454
Oct-05 0.8540690482 28.7967846993
Nov-05 0.8586507707 27.9381339285
Dec-05 0.8632570744 27.0748768542
Jan-08 0.8678880889 26.2069887653
Feb-08 0.8725439468 25.3344448185
Mar-06 0.8772247816 24.4572200369
Apr-06 0.8819307270 23.5752893099
May-06 0.8866619179 22.6886273921
Jun-06 0.8914184896 21.7972069024
Jul-06 0.8962005784 20.9010083240
Aug-06 20.9010083240 0.0000000000
Initials:/S/ WCB
Lessor
/S/DRM
Lessee
*The Principal and Unamortized Principal Balance as of any Rent Payment Date
shall be equal to the Capitalized Lessor's Cost of such unit multiplied by
the appropriate percentage derived from the above table.
ANNEX F
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
RETURN PROVISIONS: In addition to the provisions provided for in Section X
of this Lease, and provided that Lessee has elected not to exercise its
purchase option pursuant to Section XVIII(c) of the Lease, Lessee shall, at
its expense:
(a) With respect to maintenance, Lessee may not discriminate in favor
of similar equipment owned by Lessee as against the Equipment with respect to
scheduling of maintenance, parts or service.
(b) The Equipment shall not be taken out of commercial operation in
Lessee's business as a public utility.
(c) Lessor, at its sole discretion, may, from time to time, inspect the
Equipment at Lessor's sole expense. If any of the Equipment is not operating
within manufacturer's specifications or in accordance with current safe
utility practices, Lessor will communicate these discrepancies to Lessee in
writing. Lessee shall have thirty (30) days to rectify these discrepancies
or respond to the report at its sole expense. Lessee shall pay all expenses
for the re-inspection by the Lessor-appointed expert, if corrective measures
are required.
(d) If Lessee intends to return the Equipment at the expiration or
earlier termination of the Term, Lessee shall provide Lessor with one hundred
eighty (180) days' prior written notice (the "Return Notice"). If Lessee
gives Lessor the Return Notice, this Paragraph (d) through and including
Paragraph (p) shall be applicable.
(e) Lessee shall provide to Lessor, at least one hundred eighty (180)
days prior to lease termination a detailed inventory of all components of the
Equipment with consideration to the conditions set forth in Section VI
("Service") of the Lease. The inventory shall include but not be limited to
a detailed listing of all items of the Equipment by both the model and serial
number for all components comprising this Lease.
(f) At least one hundred eighty (180) days prior to the expiration or
earlier termination of the Term, Lessee shall (1) upon receiving reasonable
notice from Lessor, make the Equipment available for operational inspections
(where applicable) by potential purchasers; (2) cause the manufacturer(s), or
other persons expressly authorized by the manufacturer and/or Lessor, to
inspect, examine and test all material and workmanship to ensure the
Equipment is operating within the manufacturer's specifications; (3) provide
to Lessor a written report from the authorized inspector detailing said
inspection and condition of the Equipment; (4) if during such inspection,
examination or test, the authorized inspector finds any of the material or
workmanship to be defective or the Equipment not operating within the
manufacturer's specifications, then Lessee shall repair or replace such
defective material, and after corrective measures are completed, Lessee will
provide for another inspection of the Equipment by the authorized inspector
as outlined above.
(g) At least ninety (90) days prior to the expiration or earlier
termination of the Term and upon request by Lessor, Lessee shall provide, or
cause the Supplier(s) to provide to Lessor, the following documents: (1) one
set of service and operating manuals including replacements and/or additions
thereto, such that all documentation is completely up to date; and (2) one
set of documents detailing equipment configuration, hardware maps, operating
requirements, maintenance records, and other technical data concerning the
set-up and operation of the Equipment including replacements and additions
thereto, such that all documentation is completely up to date.
(h) A potential purchaser of the Equipment shall provide for the
deinstallation, packaging and transportation of the Equipment to include, but
not limited to the following: (1) the manufacturer's representative shall
de-install all Equipment (including all wire, cable and mounting hardware);
(2) the Equipment shall be packed properly and in accordance with the
manufacturer's recommendation, given its destination and mode of transport;
and (3) such potential purchaser shall transport the Equipment in a manner
consistent with the manufacturer's recommendations and practices. In the
event the Lease expires or terminates without a purchaser for the Equipment,
Lessee shall remain liable for all items outlined in this Paragraph (h).
(i) Upon expiration or termination of the Lease, a potential purchaser
of the Equipment shall obtain and pay for a policy of transit insurance for
the delivery period in an amount equal to the replacement value of the
Equipment with the Lessor named as loss payee on all such policies of
insurance, and provide transportation to locations anywhere in the
continental United States, Canada and Mexico as selected by Lessor. In the
event the Lease expires or terminates without a purchaser for the Equipment,
Lessee shall remain liable for all of the items outlined in this Paragraph
(i).
(j) Lessee shall provide safe, secure storage for the Equipment at the
Devon, Connecticut site (the "Site") for a period of up to one hundred eighty
(180) days after expiration or termination of the Lease at an accessible
location satisfactory to Lessor.
(k) Upon expiration or earlier termination of the Term, all Equipment
shall be cleaned and cosmetically acceptable, and in such condition so that
it may be immediately installed and placed into use in a similar operating
environment.
(l) Lessee shall ensure that all Equipment and equipment operation,
including emissions, conform to all applicable local, state, Environmental
Protection Agency ("EPA"), and Federal laws, health and safety guidelines
including current emission standards applicable to the potential purchasers.
(m) If available, Lessee shall make available for a period of three
hundred sixty five (365) days following successful re-installation and test
run of the Equipment, as required, any engineering and technical personnel
necessary for the training of personnel with respect to the operation,
maintenance and repair of the Equipment (said engineering and technical
personnel will be made available by Lessee for an additional sixty (60) day
period for consultation regarding the operation of the Equipment), and the
purchaser of the Equipment shall be responsible for Lessee's out-of-pocket
expenses incurred in connection with providing such engineering and technical
personnel.
(n) Lessee shall be solely responsible for the cost of all repairs,
alterations, inspections, appraisals, storage charges, insurance costs,
demonstration costs, and other related costs necessary to place the Equipment
in such condition as to be in complete compliance with the Lease.
(o) Lessor shall have the right to attempt resale of the Equipment from
Lessee's Site with Lessee's full cooperation and assistance for a period of
one hundred twenty (120) days from the expiration or earlier termination of
the Term. During this period, the Equipment must remain operational with the
necessary electric power, lighting, heat, air-conditioning, water, fuel and
compressed air necessary to maintain and demonstrate the Equipment to any
potential buyer.
(p) Upon return of the Equipment, Lessee shall pay to Lessor such
amount as is required to reimburse Lessor for the costs necessary to perform
any outstanding maintenance work (if required) on the Equipment and a
pro-rata assessment of the cost of combustion, hot gas path, and major
repairs based upon actual hours of use by Lessee of the Equipment through the
date of expiration or earlier termination of the Term.
Initials: /S/ WCB
Lessor
/S/ DRM
Lessee
ANNEX G
TO
SCHEDULE NO. 002
DATED THIS 21ST DAY OF JUNE, 1996
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 21, 1996
ESTOPPEL/WAIVER AGREEMENT
June 21, 1996
Gentlemen/Ladies:
General Electric Capital Corporation, for Itself and as Agent for
Certain Participants ("Lessor"), has entered into, or is about to enter into,
a lease or similar agreement (the "Lease") with The Connecticut Light and
Power Company ("Lessee"), pursuant to which Lessee has leased or will lease
from Lessor certain personal property described in the attached Annex A (such
property, together with any replacements thereof, being referred to as the
"Personal Property"). Some or all of the Personal Property is, or will be,
located at certain premises described on Annex A (the "Premises"). This
letter is being sent to you because of your interest in the Premises.
By your signature below, you hereby agree (and we shall rely on your
agreement) that: (i) the Personal Property is, and shall remain, personal
property regardless of the method by which it may be, or become, affixed to
the Premises; (ii) your interest in the Personal Property and any proceeds
thereof (including, without limitation, proceeds of any insurance therefor)
shall be, and remain, subject to the ownership interests of Lessor (until and
unless Lessor shall formally release or transfer its interest in the Personal
Property to Lessee); (iii) Lessor, and its employees and agents, shall have
the right with prior notice, from time to time, to enter the Premises for the
purpose of inspecting the Personal Property; and (iv) Lessor, and its
employees and agents, shall have the right, upon any default by Lessee under
the Lease, to enter the Premises and to remove the Personal Property from the
Premises. Lessor agrees to reimburse you for any damages actually caused to
the Premises by Lessor, or its employees or agents, during any such removal.
These agreements shall be binding upon, and shall inure to the benefit of,
any successors and assigns of the parties hereto.
We appreciate your cooperation in this matter of mutual interest.
GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT FOR CERTAIN
PARTICIPANTS
By:/s/William C. Badgio
Name: William C. Badgio
Title: Transaction and Syndication Manager
AGREED TO AND ACCEPTED BY:
By:/s/Scott Thiel
Name: Scott Thiel
Title: Assistant Vice President
Date: June 21, 1996
ATTACHMENT TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT
1. SECURED PARTY: GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS
AGENT FOR CERTAIN PARTICIPANTS
DEBTOR: THE CONNECTICUT LIGHT AND POWER COMPANY
2. DESCRIPTION OF PROPERTY:
The equipment leased pursuant to that certain Master Lease Agreement
dated as of the 21st day of June, 1996, between Secured Party, as lessor, and
Debtor, as lessee, together with all accessions, substitutions and
replacements therefor, and proceeds (including insurance proceeds) thereof
(but without power of sale); more fully described on the attached Annex(es)
A.