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EXHIBIT 10.3
CONFORMED COPY
CONSENT AND AGREEMENT
The undersigned, Select Energy, Inc. ("SELECT ENERGY"), a corporation
organized under the laws of the State of Connecticut, and Northeast Utilities
("NU"), an unincorporated voluntary business association organized under the
laws of the Commonwealth of Massachusetts (Select Energy and NU are hereinafter
referred to individually as "COUNTERPARTY" and collectively, as the
"COUNTERPARTIES"), as of October 18, 2001, hereby acknowledge notice of, and
consent to, for themselves, the assignment of the agreements listed in Exhibit A
hereto (the "ASSIGNED AGREEMENTS") with Northeast Generation Company, a
corporation organized under the laws of the State of Connecticut (the
"COMPANY"), to the Trustee referred to below, and hereby agrees as follows:
The Company and The Bank of New York as Trustee for the holders of
bonds issued thereunder (in such capacity, together with its successors in such
capacity, the "TRUSTEE") are parties to an Indenture dated as of October 18,
2001 (as amended, modified and supplemented and in effect from time to time, the
"INDENTURE").
The Company and the Trustee are parties to a Security Agreement dated
as of October 18, 2001.
1. INTERPRETATION. Unless otherwise stated, references herein to any
Person shall include its permitted successors and assigns and, in the case of
any Government Authority, any Person succeeding to its functions and capacities.
In case of any conflict or inconsistency between this Consent and Agreement and
the Assigned Agreements, this Consent and Agreement shall control. Capitalized
terms used but not defined herein are used as defined in the Indenture.
2. REPRESENTATIONS AND WARRANTIES. Each Counterparty represents and
warrants, as of the date hereof, that:
(a) CORPORATE EXISTENCE. NU represents and warrants that it is an
unincorporated voluntary business association duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts. Select
Energy represents and warrants that it is a corporation duly organized, validly
existing and in good standing under the laws of the State of Connecticut.
(b) NO CONTRAVENTION. The execution, delivery and performance by such
Counterparty of this Consent and Agreement and the Assigned Agreements have been
duly authorized by all necessary corporate or other organizational action of
such Counterparty, and do not and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award applicable to such Counterparty or any provision of the certificate of
incorporation or by-laws of such Counterparty or (ii) result in a breach of or
constitute a default under any agreement relating to the management or affairs
of such Counterparty, or any indenture or loan or
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credit agreement or any other material agreement, lease or instrument to which
such Counterparty is a party or by which such Counterparty or its properties or
assets may be bound that would, individually or in the aggregate, have a
material adverse effect on such Counterparty's performance under the Assigned
Agreements or this Consent and Agreement.
(c) DUE EXECUTION AND ENFORCEABILITY. This Consent and Agreement and
the Assigned Agreements have been duly executed and delivered by each
Counterparty, are in full force and effect and constitute the legal, valid and
binding obligations of such Counterparty enforceable against such Counterparty
in accordance with their respective terms, except as the enforceability thereof
may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and by general equitable principles.
(d) GOVERNMENTAL APPROVALS. No Governmental Approval (as defined below)
is required to be obtained by any Counterparty for the execution, delivery and
performance by such Counterparty of this Consent and Agreement, except for such
Governmental Approvals that have already been obtained.
"Governmental Approval" shall mean any authorization, consent,
approval, license, ruling, permit, tariff, rate, certification, exemption,
filing (other than filings relating to the perfection of security interest),
variance, claim, order, judgment, decree, publication of, notice to, or
registration by or with, any governmental authority.
(e) NO LITIGATION. There are no suits or proceedings at law or in
equity or by or before any governmental or regulatory authority or agency, now
pending, or to its knowledge threatened, against such Counterparty or any of its
properties, rights or assets which if adversely determined, individually or in
the aggregate, could reasonably be expected to have a material adverse effect on
its ability to perform its obligations hereunder or under the Assigned
Agreements.
(f) NO DEFAULT UNDER ASSIGNED AGREEMENTS. Such Counterparty is not in
default in any material respect under any material covenant or obligation under
the Assigned Agreements and no such default has occurred prior to the date
thereof. To the best knowledge of such Counterparty, without inquiry, the
Company is not in default in any material respect under any material covenant or
obligation under the Assigned Agreements and no such default has occurred prior
to the date hereof, and the Company has complied in all material respects with
the conditions precedent to the obligations of such Counterparty to perform
under the Assigned Agreements.
3. CONSENT AND AGREEMENT. Each Counterparty hereby consents,
acknowledges and agrees that the rights of the Company arising on or before
December 31, 2005 under the Assigned Agreements have been or will be assigned to
the Trustee in connection with the issuances from time to time of bonds under
the Indenture. In connection with the foregoing, each Counterparty acknowledges
and agrees that:
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(a) EXERCISE OF RIGHTS. From and after delivery by the Trustee
to the Counterparties of written notice that an Event of Default has
occurred and so long as such Event of Default is continuing, the
Trustee and any designee or assignee thereof shall be entitled to (i)
exercise any and all rights of the Company under the Assigned
Agreements in accordance with their terms and (ii) enforce directly
against the Counterparties all obligations of the Counterparties under
the Assigned Agreements.
(b) RESTRICTIONS ON TERMINATION. No Counterparty will, without
the prior written consent of the Trustee, take any action to cancel or
terminate, or suspend performance under, the Assigned Agreements, or
consent to or accept any cancellation, termination or suspension
thereof, unless such Counterparty shall have delivered to the Trustee
30 days' (or, in the case of a payment default under the Assigned
Agreements, 10 days') prior written notice specifying the nature of the
default giving rise to such right (and in the case of a payment
default, specifying the amount thereof). Following receipt of any such
notice but prior to the Counterparty's taking any action to cancel or
terminate, or suspend performance under, any Assigned Agreement, the
Trustee shall have the right, but not the obligation, to cure (by
payment or performance on behalf of the Company) any default giving
rise to (or that could give rise to) the Counterparty's right to
cancel, terminate or suspend performance under the Assigned Agreements.
(c) SUCCESSION TO OR TRANSFER OF RIGHTS AND INTERESTS. In the
event that the Trustee or its designee(s) succeeds to the Company's
rights and interests in the Assigned Agreements, whether by foreclosure
or otherwise, the Trustee or its designee(s) may elect, by written
notice of assumption delivered to the Counterparty, to assume all of
the Company's obligations under the Assigned Agreements from the date
of such succession to and including December 31, 2005 (but shall in no
event be liable for damages or penalties incurred by the Company that
are not provided for in the Assigned Agreements). Upon the exercise by
the Trustee of any of the remedies set forth in the Transaction
Documents, the Trustee may assign its rights and interests, and the
rights and interests of the Company, in and to the Assigned Agreements
to and including December 31, 2005 to any purchaser or transferee of
the Company or any of its assets (and the Counterparties shall have no
right to terminate the Assigned Agreements or suspend its performance
thereunder by reason of such assignment), if such purchaser or
transferee shall have cured all defaults then existing under the
Assigned Agreements and shall expressly assume in writing all of the
obligations of the Company under the Assigned Agreements to and
including December 31, 2005. In connection with the foregoing,
liability of the Trustee or its designee(s), or any such purchaser or
transferee in respect of any and all obligations of the Company prior
to the assumption by such Person of the Company's obligations under
such Assigned Agreements shall be limited solely to the assets of the
Company (and neither the Trustee, such designee nor any officer,
director, employee, shareholder, partner or agent of the Trustee or
such designee, purchaser or transferee shall have any liability with
respect thereto).
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(d) REPLACEMENT OF ASSIGNED AGREEMENTS FOLLOWING BANKRUPTCY.
In the event that (i) any of the Assigned Agreements is rejected by a
trustee or debtor-in-possession in any bankruptcy or insolvency
proceeding involving the Company or (ii) any of the Assigned Agreements
is terminated as a result of any bankruptcy or insolvency proceeding
involving the Company and, if within 15 days after such rejection or
termination, the Trustee or its designee(s) or assignees(s) shall so
request and shall certify in writing to the Counterparties that such
party intends to perform the obligations of the Company as and to the
extent required under any such rejected or terminated Assigned
Agreement and any transfer to such designee or assignee shall comply
with the provisions of Section 3(c) above, the Counterparties will
execute and deliver to the Trustee or such designee(s) a new Assigned
Agreement which shall be for the balance of the remaining term (but not
beyond December 31, 2005) under the original Assigned Agreement before
giving effect to such rejection or termination and shall contain the
same conditions, agreements, terms, provisions and limitations as the
original Assigned Agreement (except for any requirements which have
been fulfilled prior to such rejection or termination); PROVIDED that
the Counterparties shall not be obligated to enter into any such new
Assigned Agreement unless all amounts due and payable to the
Counterparties under the original Assigned Agreements have been paid.
References in this Consent and Agreement to such "Assigned Agreement"
shall be deemed also to refer to such new Assigned Agreement.
(e) AMENDMENT. The Counterparties shall not, without the prior
written consent of the Trustee, amend or modify the Assigned Agreements
unless the Counterparties have received from the Company a copy of a
certificate delivered by the Company to the Trustee to the effect that
such amendment or modification is permitted by the Transaction
Documents.
(f) NOTICES. The Counterparties shall deliver to the Trustee,
concurrently with the delivery thereof to the Company, a copy of any
material notice, request, demand or other document given by the
Counterparties in connection with the Assigned Agreements, including,
without limitation, (i) any notice of default or of the existence of a
material dispute concerning the Assigned Agreements, (ii) an event or
condition which with the passage of time or giving notice could become
an Event of Default or (iii) any termination or proposed termination of
the Assigned Agreements.
4. MISCELLANEOUS.
(a) BINDING EFFECT. This Consent and Agreement shall be
binding upon the parties hereto and their respective successors and
assigns.
(b) NOTICES. All notices and other communications to a party
hereunder shall be in writing and shall be sent to the address set
forth beneath the signature of such Person on the signature pages
hereof or to such address as such Person may have specified by written
notice to the other parties hereto and shall be deemed to have been
given (A) when received by certified mail or by an
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international courier, such as Federal Express, by such Person, at said
address of such Person or (B) when transmitted by facsimile to the
number specified below and the receipt confirmed telephonically by
recipient; PROVIDED that such facsimile is promptly followed by a copy
of such notice delivered to such Person by postage-prepaid certified
mail, or by an international courier, such as Federal Express.
Notwithstanding the foregoing sentence, all notices and other
communications to the Counterparties hereunder shall be in writing and
shall be sent to the address and in the manner specified in the
Assigned Agreements.
(c) AMENDMENTS. No amendment, modification or waiver of any
provision hereof shall be effective unless the same shall be in writing
and signed by the parties hereto, including the Company; PROVIDED that
if the Trustee shall have delivered a notice to the Counterparties that
an Event of Default shall have occurred and be continuing the Company
shall not be required to be a party to any amendment, modification or
waiver unless its rights or obligations hereunder are affected thereby.
(d) COUNTERPARTS; HEADINGS; SEVERABILITY. This Consent and
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Consent and Agreement by signing
any such counterpart. The headings used herein are for convenience of
reference only and will not affect the construction or interpretation
of any of the terms hereof. If any provision hereof shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions in such jurisdiction and the
validity, legality and enforceability of such provision in any other
jurisdiction shall not in any way be affected or impaired.
(e) TERMINATION. This Consent and Agreement and the
obligations of the Counterparties hereunder shall terminate and be of
no further force and effect on the earlier of (x) the date on which the
Counterparties shall have received notice in writing from the Trustee
that all obligations under the Transaction Documents have been paid or
performed in full in accordance with the terms thereof and (y) the date
on which the Assigned Agreements have been finally terminated
(including, and not prior to, termination of all surviving obligations)
in accordance with their terms and the terms hereof. Notwithstanding
the foregoing, it is understood and agreed that the Assigned Agreements
expire on December 31, 2005 and that this Consent and Agreement shall
have no effect with respect to any renewal or extension of an Assigned
Agreement past December 31, 2005.
(f) GOVERNING LAW. THIS CONSENT AND AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW THEREOF TO THE EXTENT THE APPLICATION OF SUCH PRINCIPLES WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY
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OTHER JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THIS CONSENT AND
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) LIMITED INDEMNITY. The Company acknowledges and agrees
that if the Secured Parties, the Trustee or any of their agents or
designees take action to exercise any of their respective rights under
the Collateral Documents or this Consent and Agreement, including, but
not limited to, the assumption, step-in and transfer rights described
in Section 3 of this Consent and Agreement, the Counterparties shall be
entitled to rely upon any notice or representation received from the
Secured Parties, the Trustee or their agents and designees concerning
such default or actions, and to act in reliance upon such notice or
representation, in honoring any assumption, step-in or transfer by the
Secured Parties, the Trustee or their agents or designees. The
Counterparties shall have no obligation to investigate the accuracy of
any such notice or representation or the propriety or legality of any
action taken by the Secured Parties, the Trustee or their agents or
designees, shall have no obligation or duty to the Company in this
respect or to protect the Company's interests, and shall have no
liability to the Company or its officers, directors, partners, agents
or employees for, acting in good faith to honor the assumption, step-in
or transfer by payment of amounts due under the Assigned Agreements to
the Secured Parties, the Trustee or their agents or designees or
otherwise to the exclusion of the Company.
(h) LIMITATION OF LIABILITY. No shareholder or trustee of NU
shall be held to any liability whatever for the payment of any sum of
money or for damages or otherwise under this Consent and Agreement, and
this Consent and Agreement shall not be enforceable against any such
trustee in their or his or her individual capacities or capacity and
this Consent and Agreement shall be enforceable against the trustees of
NU only as such, and every person, firm, association, trust or
corporation having any claim or demand arising under this Consent and
Agreement and relating to NU, its shareholders or trustees shall look
solely to the trust estate of NU for the payment or satisfaction
thereof.
(i) TRUSTEE'S RIGHTS. In acting hereunder, the Trustee is
entitled to all rights, benefits, protections and indemnities provided
to it under the Indenture.
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IN WITNESS WHEREOF, the undersigned by its duly authorized
officer has caused this Consent and Agreement to be duly executed and delivered
as of the day and year first above written.
NORTHEAST UTILITIES
as a Counterparty
By: /s/ David R. McHale
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Name: David R. McHale
Title: Vice President and Treasurer
SELECT ENERGY, INC.
as a Counterparty
By: /s/ William W. Schivley
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Name: William W. Schivley
Title: President
Accepted and agreed:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Geovanni Barris
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Name: Geovanni Barris
Title: Vice President
101 Barclay Street, Floor 21W
New York, NY 10286
Accepted and agreed:
NORTHEAST GENERATION COMPANY
By: /s/ Bruce D. Kenyon
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Name: Bruce D. Kenyon
Title: President - Generation Group
107 Selden Street
Berlin, CT 06037
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Exhibit A
Assigned Agreements
1. Power Purchase and Sales Agreement dated as of December 27, 1999
between Select Energy, Inc. and Northeast Generation Company.
2. Guaranty dated as of October 18, 2001 made by Northeast Utilities in
favor of Northeast Generation Company.
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