Exhibit C.5.2
U.S. $200,000,000
TERM CREDIT AGREEMENT
Dated as of November 9, 0000
Xxxxx
XXXXX XXXXXXXX ENERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
BANK ONE, N.A.
as Administrative Agent
TABLE OF CONTENTS
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms.
Section 1.02. Computation of Time Periods.
Section 1.03. Accounting Terms.
Section 1.04. Computations of Outstandings.
Article II
COMMITMENTS
Section 2.01. The Commitments.
Section 2.02. Fees.
Section 2.03. Termination of the Commitments.
Article III
AMOUNTS AND TERMS OF THE ADVANCES
Section 3.01. Initial Funding.
Section 3.02. Conversion of Advances.
Section 3.03. Other Terms Relating to the Making and Conversion
of Advances.
Section 3.04. Repayment of Advances.
Section 3.05. Interest.
Article IV
PAYMENTS
Section 4.01. Payments and Computations.
Section 4.02. Prepayments.
Section 4.03. Yield Protection.
Section 4.04. Sharing of Payments, Etc.
Section 4.05. Taxes.
Article V
CONDITIONS PRECEDENT
Section 5.01. Conditions Precedent to the Closing Date.
Section 5.02. Reliance on Certificates.
Article VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Borrower.
Article VII
COVENANTS OF THE BORROWER
Section 7.01. Affirmative Covenants.
Section 7.02. Negative Covenants.
Section 7.03. Reporting Obligations.
Article VIII
DEFAULTS
Section 8.01. Events of Default.
Section 8.02. Remedies Upon Events of Default.
Article IX
THE ADMINISTRATIVE AGENT
Section 9.01. Authorization and Action.
Section 9.02. Administrative Agent's Reliance, Etc.
Section 9.03. Bank One and Affiliates.
Section 9.04. Lender Credit Decision.
Section 9.05. Indemnification.
Section 9.06. Successor Administrative Agent.
Article X
MISCELLANEOUS
Section 10.01. Amendments, Etc.
Section 10.02. Notices, Etc.
Section 10.03. No Waiver of Remedies.
Section 10.04. Costs, Expenses and Indemnification.
Section 10.05. Right of Set-off.
Section 10.06. Binding Effect.
Section 10.07. Assignments and Participation.
Section 10.08. Confidentiality.
Section 10.09. Waiver of Jury Trial.
Section 10.10. Governing Law.
Section 10.11. Relation of the Parties; No Beneficiary.
Section 10.12. Execution in Counterparts.
SCHEDULES
Schedule I Applicable Lending Offices
Schedule II Governmental Approvals
Schedule III Investments
Schedule IV Commitments
EXHIBITS
Exhibit 1.01A Form of Note
Exhibit 3.01A Form of Notice of Borrowing
Exhibit 3.02A Form of Notice of Conversion
Exhibit 5.01A Form of Opinion of X.X. Xxxxxxx, Esq.
Exhibit 5.01B Form of Opinion of Xxxxxxx X. Xxxxxx, Esq.
Exhibit 5.01C Form of Opinion of Xxxxxx X. Xxxxxx, Esq.
Exhibit 10.07 Form of Lender Assignment
TERM CREDIT AGREEMENT
Dated as of November 9, 2000
THIS TERM CREDIT AGREEMENT (the "Agreement") is made by and
among:
(i) NORTH ATLANTIC ENERGY CORPORATION, a corporation duly
organized and validly existing under the laws of the State of
New Hampshire (the "Borrower");
(ii) The financial institutions (the "Banks") listed on the
signature pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto;
(iii) BANK ONE, N.A. (main office Chicago) ("Bank One") as
administrative agent (the "Administrative Agent") for the
Lenders hereunder.
PRELIMINARY STATEMENT
The Borrower wishes to refinance the indebtedness
outstanding under its Term Credit Agreement, dated as of
November 9, 1995 (the "Existing Debt"). Subject to the
conditions and upon the terms of this Agreement and the Notes
referred to herein, the Borrower wishes to borrow, and the Banks
have agreed, severally and not jointly, to lend, an aggregate
amount of up to $200,000,000 for such purpose.
Based upon the foregoing and subject to the conditions and
upon the terms set forth in this Agreement, the parties agree as
follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Adjusted Net Income" of the Borrower, for any period,
means the Borrower's net income for such period, determined
in accordance with generally accepted accounting principles
on a basis consistent with the standards referred to in
Section 1.03 hereof, and:
(i) increased by the amount of current and deferred federal
and state income taxes for such period (calculated on a basis
consistent with footnote 5 to the Borrower's financial
statements included in its 1999 Annual Report);
(ii) decreased by the amount of Income Taxes-credit (as
included under "Other Income") for such period; and
(iii) increased by the Borrower's Interest Expense for such
period.
"Advance" means an Advance by a Lender to the Borrower
pursuant to Section 3.01 hereof, and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall
be a "Type" of Advance). The Type of an Advance may change
from time to time as and when such Advance is Converted.
For purposes of this Agreement, all Advances of a Lender
(or portions thereof) made of, or Converted into, the same
Type and Interest Period on the same day shall be deemed to
be a single Advance by such Lender until repaid or next
Converted.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly
or indirectly, the power to direct or cause the direction
of the management and policies of such entity, whether
through the ownership of voting securities, by contract or
otherwise.
"Alternate Base Rate" means, for any Interest Period
or any other period, a fluctuating interest rate per annum
equal at all times to the highest from time to time of:
(a) the rate of interest announced publicly by Bank One,
Chicago, Illinois, from time to time, as Bank One's corporate
base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate
from time to time.
Each change in the Alternate Base Rate shall take
effect concurrently with any change in such base rate or
Federal Funds Rate.
"Applicable Lending Office" means, with respect to
each Lender, (i)(A) such Lender's "Domestic Lending Office"
in the case of a Base Rate Advance, and (B) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar
Rate Advance, in each case as specified opposite such
Lender's name on Schedule I hereto or in the Lender
Assignment pursuant to which it became a Lender, or (ii)
such other office or affiliate of such Lender as such
Lender may from time to time specify to the Borrower and
the Administrative Agent.
"Applicable Margin" means, on any date for any
Eurodollar Rate Advance, the applicable percentage per
annum set forth below, based on the then Applicable Rating
Level.
Xxxxx 0 Xxxxx 0 Xxxxx 0
1.25% 1.50% 2.00%
Any change in the Applicable Margin caused by a change in
the Applicable Rating Level shall take effect immediately
upon such change in the Applicable Rating Level.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate per annum
equal at all times to the Alternate Base Rate in effect from
time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising
part of the same Borrowing, a rate per annum during each
Interest Period equal at all times to the sum of the Eurodollar
Rate for such Interest Period plus the Applicable Margin in
effect from time to time during such Interest Period.
"Applicable Rating Level" on any date for any
Eurodollar Rate Advance, shall be determined in accordance
with the following table on the basis of the ratings of
Moody's and S&P, respectively, then applicable to the
senior secured debt of PSNH:
Xxxxx 0 Xxxxx 0 Xxxxx 0
Xxx0/XXX Xx0/XXx Xxxxx Bal or
or higher or higher Below BB+
In the event of a "split" rating, the Applicable Rating
Level shall be determined on the basis of the lower of the
two ratings (and, if applicable, the higher Applicable
Rating Level and Applicable Margin). The Applicable Rating
Level shall be redetermined as and when any change in the
ratings used in the determination thereof shall be
announced by either Moody's or S&P.
"Arranger" means Banc One Capital Markets, Inc.
"Base Rate Advance" means an Advance in respect of
which the Borrower has selected in accordance with Article
III hereof, or this Agreement otherwise provides for,
interest to be computed on the basis of the Alternate Base
Rate.
"Borrowing" means a borrowing consisting of Advances
of the same Type and Interest Period made on the same day
by the Lenders, ratably in accordance with their respective
Commitments. For purposes of this Agreement: (i) each
Borrowing shall be deemed to be of the same "Type" as the
Advances comprising such Borrowing, and (ii) all Advances
made of, or Converted into, the same Type and Interest
Period on the same day shall be deemed a single Borrowing
hereunder until repaid or next Converted.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City,
or Chicago, Illinois and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings
are carried on in the London interbank market.
"Closing Date" means the day upon which each of the
conditions precedent enumerated in Section 5.01 hereof
shall be fulfilled to the satisfaction of the Lenders, the
Administrative Agent and the Borrower. All transactions
contemplated to occur on the Closing Date shall take place
on or prior to November 9, 2000, at the offices of King &
Xxxxxxxx, 0000 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 A.M. (New York City time), or such other
place and time as the parties hereto may mutually agree.
"Commitment" means, for each Lender, the amount set
forth opposite such Lender's name on Schedule IV hereto,
or, if such Lender has entered into one or more Lender
Assignments, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section
10.07(c), in each such case as such amount may be reduced
from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders'
Commitments hereunder.
"Common Equity" means, as of any day, the aggregate of
all amounts that would, in accordance with generally
accepted accounting principles applied on a basis
consistent with the standards referred to in Section 1.03
hereof, appear on the balance sheet of the Borrower as of
such day as the sum of (i) the aggregate of the par value
of, or (ii) stated capital represented by, the outstanding
shares of common stock of the Borrower and the surplus,
paid-in, earned and other, if any, of the Borrower.
"Common Equity Ratio" means, as of any day, the ratio
of (i) Common Equity as of such day to (ii) Total
Capitalization as of such day.
"Confidential Information" has the meaning assigned to
that term in Section 10.08.
"Conversion", "Convert" or "Converted" each refers to
a conversion of Advances pursuant to Section 3.02,
including, but not limited to any selection of a longer or
shorter Interest Period to be applicable to such Advances
or any conversion of an Advance as described in Section
3.02(c).
"Debt" means, for any Person, without duplication
(including, for example, Debt evidenced by notes or
securities that are supported by letters of credit and
reimbursement obligations in respect of such letters of
credit), (i) indebtedness of such Person for borrowed
money, (ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii)
obligations of such Person to pay the deferred purchase
price of property or services, (iv) obligations of such
Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
principles, recorded as capital leases, (v) obligations
(contingent or otherwise) of such Person under
reimbursement or similar agreements with respect to the
issuance of letters of credit, (vi) net obligations
(contingent or otherwise) of such Person under interest
rate swap, "cap", "collar" or other hedging agreements,
(vii) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses
(i) through (vi), above, and (viii) liabilities in respect
of unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means the Borrower's 1999
Annual Report, the Borrower's Annual Report on Form 10-K
for the year ended December 31, 1999, the Borrower's
Quarterly Reports on Form 10-Q for the quarters ended March
31 and June 30, 2000, any Current Report on Form 8-K of the
Borrower filed by the Borrower with the Securities and
Exchange Commission after June 30, 2000 and furnished to
the Banks prior to October 1, 2000.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which
is a "commonly controlled entity" of the Borrower within
the meaning of the regulations under Section 414 of the
Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Multiemployer Plan" means a "multiemployer
plan" subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other
than an ERISA Multiemployer Plan) maintained for employees
of the Borrower or any ERISA Affiliate and covered by Title
IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the
regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the
PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of
the Borrower or any of its ERISA Affiliates from an ERISA
Plan or an ERISA Multiemployer Plan during a plan year in
which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of
intent to terminate an ERISA Plan or an ERISA Multiemployer
Plan or the treatment of an ERISA Plan or an ERISA
Multiemployer Plan under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate an ERISA Plan or an
ERISA Multiemployer Plan by the PBGC, or (v) any other
event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or
ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest 1/100 of 1% per annum) of
the rate per annum at which deposits in U.S. Dollars are
offered by the principal office of each of the Reference
Banks in London, England in the amount of such Reference
Bank's Eurodollar Rate Advance to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period and for a
period equal to such Interest Period. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined
by the Administrative Agent on the basis of the applicable
rates (averaged as set forth above) furnished to and
received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Sections 3.05(d) and 4.03(g).
"Eurodollar Rate Advance" means an Advance in respect
of which the Borrower has selected in accordance with
Article III hereof, and this Agreement provides for,
interest to be computed on the basis of the Eurodollar
Rate.
"Eurodollar Reserve Percentage" of any Lender for each
Interest Period for each Eurodollar Rate Advance means the
reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so
applicable, the daily average of such percentages for those
days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D or
other regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement, without benefit of or credit
for proration, exemptions or offsets) for such Lender with
respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 8.01.
"Existing Debt" has the meaning assigned to that term
in the Preliminary Statement.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not
so published on the next succeeding Business Day the
average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Final Settlement" means an agreement on, satisfaction
of all conditions precedent to (including enactment of
necessary legislation), and implementation of a settlement
of all matters relating to the restructuring of the
electricity industry in New Hampshire, as applicable to the
Borrower and PSNH, on substantially the terms of the
Settlement Agreement, and the NHPUC Settlement Order, as
consented to by the Lenders hereunder.
"First Mortgage Bonds" means first mortgage bonds of
the Borrower issued or to be issued pursuant to that
certain First Mortgage Indenture and Deed of Trust, dated
as of June 1, 0000, xxxxxxx xxx Xxxxxxxx xxx Xxxxxx Xxxxxx
Trust Company of New York, as trustee (together with any
successor, the "First Mortgage Trustee"), as the same may
be amended, modified and supplemented from time to time
(the "First Mortgage Indenture").
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body, including any
renewal thereof. For purposes of this Agreement, Chapter
362-C of the Revised Statutes Annotated of New Hampshire,
in effect on the date hereof, shall be deemed to be a
Governmental Approval.
"Hazardous Substance" means any waste, substance or
material identified as hazardous or toxic by any office,
agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Interest Coverage Ratio" means, for any period, the
ratio of (i) Adjusted Net Income for such period to (ii)
Interest Expense for such period.
"Interest Expense" means, for any period, the
aggregate interest expense of the Borrower for such period,
determined in accordance with generally accepted accounting
principles on a basis consistent with the standards
referred to in Section 1.03 hereof.
"Interest Period" has the meaning assigned to that
term in Section 3.05(a) hereof.
"Joint Ownership Agreement" means the Agreement for
Joint Ownership, Construction and Operation of New
Hampshire Nuclear Units, among PSNH and the other parties
named therein, dated as of May 1, 1973, as amended from
time to time.
"Lender Assignment" means an assignment and agreement
entered into by a Lender and an assignee, and accepted by
the Administrative Agent, in substantially the form of
Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on
the signature pages hereof, and each assignee that shall
become a party hereto pursuant to Section 10.07(a).
"Lien" has the meaning assigned to that term in
Section 7.02(a) hereof.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) hold at least
66-2/3% of the then aggregate unpaid principal amount of
the Advances owing to the Lenders or (ii) if no Advances
are then outstanding, represent at least 66-2/3% of the
Commitments. Determination of those Lenders satisfying the
criteria specified above for action by the Majority Lenders
shall be made by the Administrative Agent and shall be
conclusive and binding on all parties absent manifest
error.
"Moody's" means Xxxxx'x Investors Service, Inc., or
any successor thereto.
"NHPUC Settlement Order" means Order 23,549 dated
September 8, 2000 of the New Hampshire Public Utilities
Commission issued in Docket DE 99-099.
"1999 Annual Report" means the 1999 Annual Report of
the Borrower included in the Borrower's Annual Report on
Form 10-K for the year ended December 31, 1999.
"Note" means a promissory note of the Borrower payable
to the order of a Lender, in substantially the form of
Exhibit 1.01A hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Advances
made by such Lender.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation and a wholly-owned subsidiary of
NU.
"NU System Money Pool" means the money pool described
in the application/declaration, as amended, of NU and
certain of its Subsidiaries, filed with the Securities and
Exchange Commission in File No. 70-8875, 70-9711 and 70-
9755, as amended from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Permitted Investments" means each and any of the
following; provided that no such Permitted Investment shall
have a final maturity not later than 12 months from the
date of investment therein.
(i) direct obligations of the United States of America, or
obligations guaranteed as to principal and interest by the
United States of America;
(ii) certificates of deposit, eurodollar certificates of
deposit or bankers' acceptances issued, or time deposits held,
or investment contracts guaranteed, by (A) any Bank; or (B) any
other commercial bank, trust company, savings and loan
association or savings bank organized under the laws of the
United States of America, or any State thereof, or of any other
country which is a member of the Organization for Economic
Cooperation and Development (or a political subdivision of any
such country) having outstanding unsecured indebtedness that is
rated (on the date of acquisition thereof) AA- or better by S&P
or Aa3 or better by Moody's (or an equivalent rating by another
nationally recognized credit rating agency of similar standing
if neither of such corporations is then in the business of
rating unsecured bank indebtedness);
(iii) obligations with any Lender, or any other bank or trust
company described in clause (ii), above, in respect of the
repurchase of obligations of the type described in clause (i),
above, provided that such repurchase obligations shall be fully
secured by obligations of the type described in said clause (i)
and the possession of such obligations shall be transferred to,
and segregated from other obligations owned by, such Lender or
such other bank or trust company;
(iv) commercial paper rated (on the date of acquisition
thereof) A-1 or P-1 or better by S&P or Moody's, respectively
(or an equivalent rating by another nationally recognized credit
rating agency of similar standing if neither of such
corporations is then in the business of rating commercial
paper).
(v) deposits with or loans to the NU System Money Pool on the
terms and conditions from time to time applicable to other
participants therein, but in no event on terms less favorable to
the Borrower than are applicable to such other participants.
(vi) investments in securities of industrial and other
nonutility local enterprises described in Rule 40(a)(5) under
PUHCA; provided, however, that the total amount invested shall
not exceed (i) $1,000,000 in any calendar year and (ii)
$5,000,000 at any one time outstanding.
(vii) United States Securities and Exchange Commission
registered money market mutual funds conforming to Rule 2a-7 of
the Investment Company Act of 1940 in effect in the United
States, that invest primarily in direct obligations issued by
the United States Treasury and repurchase obligations backed by
those obligations, and rated in the highest category by S&P and
Moody's.
"Permitted Liens" has the meaning ascribed to that
term in Section 7.02(a).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
estate, unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
"PSNH" means Public Service Company of New Hampshire,
a corporation organized under the laws of the State of New
Hampshire.
"PUHCA" means the Public Utility Holding Company Act
of 1935, as amended.
"Rate Agreement" means the Agreement dated as of
November 22, 1989, as amended by the First Amendatory
Agreement dated as of December 5, 1989, the Second
Amendatory Agreement dated as of December 12, 1989, the
Third Amendment to Rate Agreement dated as of December 28,
1993, the Fourth Amendment to Rate Agreement dated as of
September 21, 1994 and the Fifth Amendment to Rate
Agreement dated as of September 9, 1994, among NUSCO, the
Governor and Attorney General of the State of New Hampshire
and adopted by PSNH as of July 10, 1990 (but excluding the
Unit Contract appended as Exhibit A thereto).
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Reference Banks" means, initially, Bank One,
Barclays, Fleet and Union, and shall include any other or
different Lender(s) as may from time to time agree to act
as Reference Banks hereunder with the consent of the
Borrower.
"Register" has the meaning specified in Section
10.07(c).
"S&P" means Standard & Poor's Rating Group or any
successor thereto.
"Seabrook" means the nuclear-fueled, steam-electric
generating plant at a site located in Seabrook, New
Hampshire, and all real property interests, fixtures, and
other assets related thereto.
"Seabrook Interests" means all of the Borrower's
right, title and interest in and to Seabrook, presently
constituting 35.98201% of Seabrook.
"Settlement Agreement" means the Agreement to Settle
PSNH Restructuring, dated August 2, 1999, among inter alia,
the Governor of the State of New Hampshire, PSNH and NU, as
revised and conformed in compliance with the NHPUC
Settlement Order.
"Significant Contracts" means the Unit Contract and
the Tax Allocation Agreement.
"Tax Allocation Agreement" means the Tax Allocation
Agreement dated as of January 1, 1990 among NU and the
members of the consolidated group of which NU is the common
parent, including the Borrower, as amended and as the same
may be further amended, modified or supplemented in
accordance with the terms hereof and thereof.
"Termination Date" means the earliest to occur of (i)
November 8, 2001, (ii) the date of termination in whole of
the Commitments pursuant to Section 8.02 or (iii) the date
of acceleration of all amounts payable hereunder and under
the Notes pursuant to Section 8.02.
"Total Capitalization" means, as of any day, the
aggregate of all amounts that would, in accordance with
generally accepted accounting principles applied on a basis
consistent with the standards referred to in Section 1.03
hereof, appear on the balance sheet of the Borrower as of
such day as the sum of (i) the principal amount of all Debt
of the Borrower on such day, (ii) the par value of, or
stated capital represented by, the outstanding shares of
all classes of common and preferred shares of the Borrower
on such day and (iii) the surplus of the Borrower, paid-in,
earned and other, if any, on such day.
"Type" has the meaning assigned to such term (i) in
the definition of "Advance" when used in such context and
(ii) in the definition of "Borrowing" when used in such
context.
"Unit Contract" means the Unit Contract, dated as of
June 1, 1992, between the Borrower and PSNH, as the same
may from time to time be amended, modified or supplemented
in accordance with the terms hereof and thereof.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of
Default.
Section 1.02. Computation of Time Periods.
In the computation of periods of time under this Agreement
any period of a specified number of days or months shall be
computed by including the first day or month occurring during
such period and excluding the last such day or month. In the
case of a period of time "from" a specified date "to" or "until"
a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
Section 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles applied on a basis consistent with the financial
statements included in the Borrower's 1999 Annual Report, except
for such changes, if any, as are consistent with generally
accepted accounting principles and are disclosed to the Lenders.
Any such change that would affect the calculation of any figure
or ratio contained in any covenant or agreement herein to be
performed or observed by the Borrower shall be disregarded for
such purpose unless and until the Borrower and the Majority
Lenders shall have agreed upon a replacement figure or ratio
that, after giving effect to such change, reflects the original
intent of the parties. The parties agree to negotiate in good
faith to reach any such agreement.
Section 1.04. Computations of Outstandings.
Whenever reference is made in this Agreement to the
principal amount outstanding on any date under this Agreement,
such reference shall refer to the sum of the aggregate principal
amount of all Advances outstanding on such date, after giving
effect to all Advances to be made on such date and the
application of the proceeds thereof.
Article II
COMMITMENTS
Section 2.01. The Commitments.
Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower on the
Closing Date in an aggregate amount not to exceed such Lender's
Commitment. In no event may any Advance repaid or prepaid
hereunder be reborrowed.
Section 2.02. Fees.
The Borrower agrees to pay to the Arranger and the
Administrative Agent, for their respective accounts, such other
fees in such amounts and payable at such times, as agreed among
them from time to time in writing.
Section 2.03. Termination of the Commitments.
(a) The Commitment of each Lender shall automatically
terminate upon the first to occur of (i) the making of the
Advances and (ii) 5:00 P.M. (New York City time) on November 9,
2000.
Article III
AMOUNTS AND TERMS OF THE ADVANCES
Section 3.01. Initial Funding.
(a) All Borrowings (other than Borrowings resulting
solely from Conversions) shall be made simultaneously on the
Closing Date and shall consist of Advances of the same Type and
Interest Period made on such day by the Lenders ratably
according to their respective Commitments. The Borrower may
request that more than one Borrowing, but no more than six
Borrowings, be made on the Closing Date, within the limits of
the Commitments. All such Borrowings shall be made on notice,
given not later than 10:00 A.M. (New York City time) three
Business Days prior to the date of the proposed Closing Date, by
the Borrower to the Administrative Agent, who shall give to each
Lender prompt notice thereof on the same day such notice is
received. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be in substantially the form of Exhibit 3.01A
hereto, specifying therein the requested (i) Closing Date, (ii)
Type of Advances comprising such Borrowing and (iii) Interest
Period for each such Advance. Each requested Borrowing shall be
subject to the provisions of Sections 3.03, 4.03 and 5.02
hereof.
(b) Each Lender shall, before 12:00 noon (New York City
time) on the Closing Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's address referred to in Section 10.02, in
same day funds, such Lender's ratable portion of each Borrowing
to be made on such date. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Section 5.02, the Administrative Agent
will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received
notice from a Lender prior to the Closing Date that such Lender
will not make available to the Administrative Agent such
Lender's ratable portion of all or any Borrowings to be made on
such date, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on
such date in accordance with subsection (b) of this Section 3.01
and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that any such Lender
(a "non-performing Lender") shall not have so made such ratable
portion available to the Administrative Agent, the non-
performing Lender and the Borrower severally agree to repay (but
without duplication) to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. Nothing herein shall in any way limit, waive or otherwise
reduce any claims that any party hereto may have against any
non-performing Lender.
(d) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
as a part of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender.
Section 3.02. Conversion of Advances.
So long as no Event of Default shall have occurred and be
continuing, the Borrower may from time to time after the Closing
Date elect to Convert any one or more Advances of any Type to
one or more Advances of the same or any other Type on the
following terms and subject to the following conditions:
(a)Each such Conversion shall be made as to all
Advances comprising a single Borrowing, on notice given not
later than 10:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion by the Borrower
to the Administrative Agent, who shall give to each Lender
prompt notice thereof. Each such notice of Conversion (a
"Notice of Conversion") shall be in substantially the form of
Exhibit 3.02A hereto, specifying therein the requested (i) date
of such Conversion, (ii) Type of, and Interest Period applicable
to, the Advances proposed to be Converted, (iii) except in the
case of a Conversion described in subsection (c) below, Type of
Advances to which such Advances are proposed to be Converted,
(iv) except in the case of a Conversion to Base Rate Advances,
the initial Interest Period to be applicable to the Advances
resulting from such Conversion and (v) aggregate amount of
Advances proposed to be Converted. No Conversion may be
requested by the Borrower hereunder (and no Notice of Conversion
shall be effective) unless made in compliance with Section 3.03
hereof.
(b) The Borrower may not select an Interest Period of
greater than one month (in the case of Conversions to Eurodollar
Rate Advances) during the continuance of an Unmatured Default or
an Event of Default.
(c) If no Notice of Conversion in respect of an Advance
is received by the Administrative Agent as provided in
subsection (a) above with respect to any Eurodollar Rate
Advance, the Administrative Agent shall treat such absence of
notice as a deemed Notice of Conversion providing for each such
Advance to be Converted to a Base Rate Advance on the last day
of the Interest Period then in effect for such Advance.
Section 3.03. Other Terms Relating to the Making and
Conversion of Advances.
(a) Notwithstanding anything in Section 3.01 or 3.02
above to the contrary:
(i) at no time shall more than six different
Borrowings be outstanding hereunder;
(ii) each Borrowing hereunder which is to be comprised
of Base Rate Advances shall be in an aggregate principal
amount of no less than $1,000,000.
(iii) each Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in the
aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Each Notice of Borrowing and Notice of Conversion
shall be irrevocable and binding on the Borrower.
Section 3.04. Repayment of Advances.
The Borrower shall repay the entire principal amount of all
Advances together with all accrued and unpaid interest thereon
on the Termination Date.
Section 3.05. Interest.
(a) Interest Periods. The period between the date of
each Advance and the date of payment in full of such Advance
shall be divided into successive periods of months or days
("Interest Periods") for purposes of computing interest
applicable thereto. The initial Interest Period for each
Advance shall begin on the day such Advance is made, and each
subsequent Interest Period shall begin on the last day of the
immediately preceding Interest Period for such Advance. All
Advances comprising part of the same Borrowing shall have the
same Interest Period, as selected by the Borrower in accordance
with this Section 3.05(a). The duration of each Interest Period
shall be (i) in the case of any Base Rate Advance, until the
earlier of repayment of such Advance in full or the Termination
Date, and (ii) in the case of any Eurodollar Rate Advance, 1, 2,
3, or 6 months, in each case as the Borrower may, upon notice
received by the Administrative Agent in accordance with Sections
3.01(a) and 3.02, select; provided, however, that the Borrower
may not select any Interest Period which ends after the
Termination Date.
(b) Interest Rates. The Borrower shall pay interest on
the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall
be paid in full, at the Applicable Rate for such Advance (except
as otherwise provided in this subsection (b)), payable as
follows:
(i) Base Rate Advances. If such Advance is a Base
Rate Advance, interest thereon shall be payable quarterly
in arrears on the last day of March, June, September and
December in each year, commencing December, 2000, on the
date such Base Rate Advance shall be paid in full and on
the Termination Date; provided that during the continuation
of any Event of Default, each Base Rate Advance shall bear
interest at a rate per annum equal to 2% per annum above
the Applicable Rate in effect from time to time for Base
Rate Advances.
(ii) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable
on the last day of each Interest Period thereof and, if any
such Interest Period has a duration of more than three
months, also on the day of the third month during such
Interest Period which corresponds to the first day of such
Interest Period (or, if any such month does not have a
corresponding day, then on the last day of such month);
provided that during the continuation of an Event of
Default, each Eurodollar Rate Advance shall bear interest
at a rate per annum equal to the greater of (A) 2% per
annum above the Applicable Rate for such Advance and (B) 2%
per annum above the Alternate Base Rate.
(c) Other Amounts. Any other amounts payable hereunder
that are not paid when due shall (to the fullest extent
permitted by law) bear interest, from the date when due until
paid in full, at a rate per annum equal at all times to 2% per
annum above the Alternate Base Rate, payable on demand.
(d) Interest Rate Determinations. The Administrative
Agent shall give prompt notice to the Borrower and the Lenders
of the Applicable Rate determined from time to time by the
Administrative Agent for each Advance. Each Reference Bank
agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish
such timely information, the Administrative Agent shall
determine such interest rate on the basis of the timely
information furnished by the remaining Reference Banks.
Article IV
PAYMENTS
Section 4.01. Payments and Computations.
(a) The Borrower shall make each payment hereunder and
under the other Loan Documents not later than 1:00 P.M. (New
York City time) on the day when due in U.S. Dollars to the
Administrative Agent at its address referred to in Section 10.02
in same day funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the
payment of principal, interest, fees or other amounts payable to
the Lenders, to the respective Lenders to whom the same are
payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of a Lender Assignment
and recording of the information contained therein in the
Register pursuant to Section 10.07, from and after the effective
date specified in such Lender Assignment, the Administrative
Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior
to such effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative
Agent, and each Lender, if and to the extent payment owed to the
Administrative Agent, or such Lender, as the case may be, is not
made when due hereunder (or, in the case of a Lender, under the
Note held by such Lender), to charge from time to time against
any or all of the Borrower's accounts with the Administrative
Agent, or such Lender, as the case may be, any amount so due.
(c) All computations of interest and other amounts
pursuant to Section 4.03 shall be made by the Lender claiming
such interest or amount, on the basis of a year of 360 days.
All other computations of interest and fees hereunder shall be
made by the Administrative Agent on the basis of a year of 360
days. In each such case, such computation shall be made for the
actual number of days (including the first day, but excluding
the last day) occurring in the period for which such interest,
fees or other amounts are payable. Each such determination by
the Administrative Agent or a Lender shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any other
Loan Document shall be stated to be due, or the last day of an
Interest Period hereunder shall be stated to occur, on a day
other than a Business Day, such payment shall be made and the
last day of such Interest Period shall occur on the next
succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest
and fees hereunder; provided, however, that if such extension
would cause payment of interest on, or principal of, Eurodollar
Rate Advances to be made, or the last day of an Interest Period
for a Eurodollar Rate Advance to occur, in the next following
calendar month, such payment shall be made on the next preceding
Business Day and such reduction of time shall in such case be
included in the computation of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to the Lenders hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that
the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each such
Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds
Rate.
Section 4.02. Prepayments.
(a) Generally. The Borrower shall have no right to
prepay any principal amount of any Advances except in accordance
with subsections (b) and (c) below.
(b) Optional. The Borrower may, upon at least three
Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of Advances comprising part of the
same Borrowing, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid and all other amounts, if any, payable in
connection therewith pursuant to Section 4.03(d); provided,
however, that each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000.
(c) Mandatory.
(i) Within two Business Days of the "buydown" of the
Seabrook Interest to $100,000,000 as contemplated by
Section VIII(K) of the Settlement Agreement and the NHPUC
Order, the Borrower shall prepay fifty percent (50%) of the
aggregate outstanding principal amount of Advances,
together with accrued interest to the date of such
prepayment on the principal amount prepaid and all other
amounts, if any, payable in connection therewith pursuant
to Section 4.03(d).
(ii) Within two Business Days of the sale of the
Seabrook Interest or any earlier termination of the Unit
Contract as contemplated by the Final Settlement, the
Borrower shall prepay one hundred percent (100%) of the
aggregate outstanding principal amount of Advances,
together with all accrued and unpaid interest to the date
of such prepayment and all other amounts, if any, payable
in connection therewith pursuant to Section 4.03(d).
(iii) To assist the Borrower in minimizing amounts
payable pursuant to Section 4.03(d) in connection with the
foregoing prepayments, the Borrower may, during the 30-day
period preceding the anticipated closing date of the
transaction giving rise to such prepayment and for up to 30
days thereafter, elect Interest Periods of one day, one
week or other periods of less than one month in respect of
the principal amount of Eurodollar Rate Advances to be
prepaid, so long as dollar deposits of a maturity
corresponding to such Interest Period are available to the
Lenders in the interbank markets. If any such closing date
shall be postponed for more than 30 days, the Borrower may
re-invoke this clause (iii) in respect of any closing date
subsequently established.
Section 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof, the adoption of or
any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall (i)
change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Rate Advance made by
such Lender or any fees or other amounts payable hereunder
(other than changes in respect of taxes imposed on the overall
net income of such Lender or its Applicable Lending Office by
the jurisdiction in which such Lender has its principal office
or in which such Applicable Lending Office is located or by any
political subdivision or taxing authority therein), or (ii)
shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against commitments or assets of,
deposits with or for the account of, or credit extended by, such
Lender, or (iii) shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Rate Advances made by such Lender, and the result of
any of the foregoing shall be to increase the cost to such
Lender of agreeing to make, making or maintaining any Advance or
to reduce the amount of any sum received or receivable by such
Lender hereunder or under the Notes (whether of principal,
interest or otherwise), then the Borrower will pay to such
Lender upon demand such additional amount or amounts as will
compensate such Lender for such additional costs incurred or
reduction suffered.
(b) Capital. If any Lender shall have determined that
any change after the date hereof in any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption
after the date hereof of any other law, rule, regulation or
guideline regarding capital adequacy, or any change in any of
the foregoing or in the interpretation or administration of any
of the foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any
Applicable Lending Office of such Lender) or any Lender's
holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have
the effect (i) of reducing the rate of return on such Lender's
capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement, the Commitment of such
Lender hereunder or the Advances made by such Lender pursuant
hereto to a level below that which such Lender or such Lender's
holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), or (ii) of increasing
or otherwise determining the amount of capital required or
expected to be maintained by such Lender or such Lender's
holding company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such
Lender pursuant hereto and other similar such commitments,
agreements or assets, then from time to time the Borrower shall
pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender or such Lender's holding company
for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each
Lender upon demand, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the Borrower and the Administrative
Agent.
(d) Breakage Indemnity. The Borrower shall indemnify
each Lender against any loss, cost or reasonable expense which
such Lender may sustain or incur as a consequence of (i) any
failure by the Borrower to borrow or Convert any Advance
hereunder after irrevocable Notice of Borrowing or Notice of
Conversion has been given pursuant to Section 3.01 or 3.02, (ii)
any payment, prepayment or Conversion of a Eurodollar Rate
Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than
the last day of the Interest Period applicable thereto, (iii)
any default in payment or prepayment of the principal amount of
any Advance or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, by
irrevocable notice of prepayment or otherwise) or (iv) the
occurrence of any Event of Default, including, in each such
case, any loss or reasonable expense sustained or incurred or to
be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Advance
or any part thereof as a Eurodollar Rate Advance. Such loss,
cost or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (A)
its cost of obtaining the funds for the Advance being paid,
prepaid, Converted or not borrowed (based on the Eurodollar
Rate) for the period from the date of such payment, prepayment,
Conversion or failure to borrow to the last day of the Interest
Period for such Advance (or, in the case of a failure to borrow,
the Interest Period for such Advance which would have commenced
on the date of such failure) over (B) the amount of interest (as
reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid, Converted
or not borrowed for such period or Interest Period, as the case
may be. For purposes of this subsection (d), it shall be
presumed that each Lender shall have funded each such Advance
with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the Applicable Rate for such
Advance.
(e) Notices. A certificate of each Lender setting forth
such Lender's claim for compensation hereunder and the amount
necessary to compensate such Lender or its holding company
pursuant to subsections (a) through (d) of this Section 4.03
shall be submitted in writing to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay each
Lender directly the amount shown as due on any such certificate
within 10 days after its receipt of the same. The failure of
any Lender to provide such notice or to make demand for payment
under this Section 4.03 shall not constitute a waiver of such
Lender's rights hereunder; provided that such Lender shall not
be entitled to demand payment pursuant to subsections (a)
through (d) of this Section 4.03 in respect of any loss, cost,
expense, reduction or reserve if such demand is made more than
three years following such Lender's incurrence or sufferance
thereof or more than one year following such Lender's actual
knowledge of the event giving rise to such Lender's rights
pursuant to such subsections. Each Lender shall use reasonable
efforts to ensure the accuracy and validity of any claim made by
it hereunder, but the foregoing shall not obligate any Lender to
assert any possible invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which
shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect
to its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrower
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Lender hereunder, whereupon the
right of the Borrower to select Eurodollar Rate Advances
for any Borrowing or Conversion shall be forthwith
suspended until such Lender shall withdraw such notice as
provided hereinbelow or shall cease to be a Lender
hereunder pursuant to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate
Advances made by it be Converted to Base Rate Advances, in
which event all such Eurodollar Rate Advances by all
Lenders shall be automatically Converted to Base Rate
Advances as of the effective date of such notice as
provided herein below.
Upon receipt of any such notice, the Administrative Agent shall
promptly notify the other Lenders. Promptly upon becoming aware
that the circumstances that caused such Lender to deliver such
notice no longer exist, such Lender shall deliver notice thereof
to the Borrower and the Administrative Agent withdrawing such
prior notice (but the failure to do so shall impose no liability
upon such Lender). Promptly upon receipt of such withdrawing
notice from such Lender (or upon such Lender assigning all of
its Commitments, Advances, participation and other rights and
obligations hereunder in accordance with Section 10.07(g)), the
Administrative Agent shall deliver notice thereof to the
Borrower and the Lenders and such suspension shall terminate.
Prior to any Lender giving notice to the Borrower under this
subsection (f), such Lender shall use reasonable efforts to
change the jurisdiction of its Applicable Lending Office, if
such change would avoid such unlawfulness and would not, in the
sole determination of such Lender, be otherwise disadvantageous
to such Lender. Any notice to the Borrower by any Lender shall
be effective as to each Eurodollar Rate Advance on the last day
of the Interest Period currently applicable to such Eurodollar
Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be
unlawful, such notice shall be effective on the date of receipt
by the Borrower and the Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two
Reference Banks furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for Eurodollar Rate
Advances in connection with any proposed Borrowing or Conversion
or (ii) if the Majority Lenders shall notify the Administrative
Agent that the Eurodollar Rate will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances, the right of the
Borrower to select or receive such Eurodollar Rate Advances for
any Borrowing or Conversion shall be forthwith suspended until
the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist, and until such notification from the Administrative Agent
each requested Borrowing or Conversion into Eurodollar Rate
Advances hereunder shall be deemed to be a request for Base Rate
Advances.
Section 4.04. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise, but excluding any proceeds received by assignments or
sales of participations in accordance with Section 10.07 hereof
to a Person that is not an Affiliate of the Borrower) on account
of the Advances owing to it (other than pursuant to Section 4.03
hereof) in excess of its ratable share of payments on account of
the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participation in
the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 4.04
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
Notwithstanding the foregoing, if any Lender shall obtain any
such excess payment involuntarily, such Lender may, in lieu of
purchasing participation from the other Lenders in accordance
with this Section 4.04, on the date of receipt of such excess
payment, return such excess payment to the Administrative Agent
for distribution in accordance with Section 4.01(a).
Section 4.05. Taxes.
(a) All payments by the Borrower hereunder and under the
other Loan Documents shall be made in accordance with Section
4.01, free and clear of and without deduction for all present or
future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case
of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any other Loan Document to any
Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 4.05) such Lender or the
Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any
payment made hereunder or under any other Loan Document or from
the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other
Taxes (including, without limitation, any Taxes and any Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 4.05) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Any Lender's claim for such
indemnification shall be set forth in a certificate of such
Lender setting forth in reasonable detail the amount necessary
to indemnify such Lender pursuant to this subsection (c) and
shall be submitted to the Borrower and the Administrative Agent
and shall be conclusive and binding for all purposes, absent
manifest error. The Borrower shall pay each Lender directly the
amount shown as due on any such certificate within 30 days after
its receipt of the same. If any Taxes or Other Taxes for which
a Lender or the Administrative Agent has received payments from
the Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such
Lender or the Administrative Agent, such Lender or the
Administrative Agent, as the case may be, shall promptly forward
to the Borrower any such refunded amount. The Borrower's, the
Administrative Agent's and each Lender's obligations under this
Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Administrative Agent, at
its address referred to in Section 10.02, the original or a
certified copy of a receipt evidencing payment thereof.
(e) Each Lender shall, on or prior to the date it
becomes a Lender hereunder, deliver to the Borrower and the
Administrative Agent such certificates, documents or other
evidence, as required by the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), or treasury regulations
issued pursuant thereto, including Internal Revenue Service Form
4224 and any other certificate or statement of exemption
required by Treasury Regulation Section 1.1441-1(a) or Section
1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by such Lender establishing that it
is (i) not subject to withholding under the Code or (ii) totally
exempt from United States of America tax under a provision of an
applicable tax treaty. Each Lender shall promptly notify the
Borrower and the Administrative Agent of any change in its
Applicable Lending Office and shall deliver to the Borrower and
the Administrative Agent together with such notice such
certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith
efforts to apprise the Borrower as promptly as practicable of
any impending change in its tax status that would give rise to
an obligation by the Borrower to pay any additional amounts
pursuant to this Section 4.05. Unless the Borrower and the
Administrative Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under
the Notes are not subject to United States of America
withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty, the Borrower or the Administrative
Agent shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United
States of America. Each Lender represents and warrants that
each such form supplied by it to the Administrative Agent and
the Borrower pursuant to this Section 4.05, and not superseded
by another form supplied by it, is or will be, as the case may
be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 4.05 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Borrower or to change
the jurisdiction of its Applicable Lending Office if the making
of such a filing or change would avoid the need for or reduce
the amount of any such additional amounts which may thereafter
accrue and would not, in the sole determination of such Lender,
be otherwise disadvantageous to such Lender.
Article V
CONDITIONS PRECEDENT
Section 5.01. Conditions Precedent to the Closing Date.
The commitments of the Lenders to make Advances under and
in accordance with this Agreement shall not become effective
until the following conditions precedent shall have been
fulfilled:
(a) The Administrative Agent shall have received the
following, each dated the date of delivery thereof (unless
otherwise specified below), in form and substance satisfactory
to each Lender and (except for the Notes) in sufficient copies
for each Lender:
(i) Counterparts of this Agreement, duly executed by
each party hereto.
(ii) The Notes to the order of the respective Lenders,
duly executed by the Borrower.
(iii) True and complete photocopies of the
Significant Contracts in effect on the Closing Date and all
amendments, modifications and supplements thereto, in each
case duly executed by the respective parties thereto.
(iv) A certificate of an Assistant Secretary of the
Borrower certifying (A) the names and true signatures of
the officers of the Borrower authorized to sign this
Agreement and the Notes and the other documents to be
delivered hereunder and thereunder and (B) that attached
thereto are true and correct copies of the Articles of
Incorporation of the Borrower, and all amendments thereto,
and the By-laws of the Borrower, in each case as in effect
on such date and (C) that attached thereto are true and
correct copies of the resolutions of the Board of Directors
of the Borrower approving this Agreement and the Notes and
the other documents to be delivered by the Borrower
hereunder and thereunder, and of all documents evidencing
other necessary corporate action, if any, with respect to
the execution, delivery and performance by the Borrower of
this Agreement and the Notes.
(v) A certificate of a duly authorized officer of the
Borrower certifying that, except as set forth in the
Disclosure Documents, there is no pending or known
threatened action or proceeding (including, without
limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the
Borrower or its properties before any court, governmental
agency or arbitrator, which may: (A) purport to affect the
legality, validity or enforceability of the Existing Debt,
any Loan Document or any Significant Contract or (B)
materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a
whole.
(vi) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and
warranties contained in Section 6.01 are correct, in all
material respects, on and as of the Closing Date before and
after giving effect to the initial Advances and the
application of the proceeds thereof, as though made on and
as of such date and (ii) no event has occurred and is
continuing which constitutes an Event of Default or
Unmatured Default, or would result from such initial
Advances or the application of the proceeds thereof.
(vii) A certificate signed by the Treasurer or
Assistant Treasurer of the Borrower, certifying as to the
absence of any material adverse change in the financial
condition, operations, properties or prospects of the
Borrower since June 30, 2000, except as disclosed in the
Disclosure Documents.
(viii) Copies, certified by the Borrower, of all
Governmental Approvals listed in Schedule II hereof.
(ix) Favorable opinions of:
(A)X.X. Xxxxxxx, Esq., Senior Counsel of
NUSCO, in substantially the form of Exhibit 5.01A
hereto;
(B) Xxxxxxx X. Xxxxxx, Esq., Assistant General
Counsel of NUSCO, in substantially the form of Exhibit
5.01B hereto; and
(C) Xxxxxx X. Xxxxxx, Assistant General
Counsel of PSNH, in substantially the form of Exhibit
5.01C hereto;
(x) A certificate of PSNH, signed by a duly
authorized officer of PSNH, certifying as to the absence of
any material adverse change in the financial condition,
operations, properties or prospects of PSNH since June 30,
2000, except as disclosed in the disclosure documents
referred to in such certificate.
(xi) Such other approvals, opinions and documents as
any Lender, through the Administrative Agent, may
reasonably request as to the legality, validity, binding
effect or enforceability of this Agreement and the Notes.
(b) There shall exist no injunction or temporary
restraining order which, in the judgment of the Administrative
Agent or the Arranger would prohibit the making of the Advances
or the repayment of the Existing Debt; except as set forth in
the Disclosure Documents, there shall be no pending or known
threatened action or proceeding (including, without limitation,
any action or proceeding relating to any environmental
protection laws or regulations) affecting the Borrower or its
properties before any court, governmental agency or arbitrator,
which may: (i) purport to affect the legality, validity or
enforceability of the Existing Debt, any Loan Document or any
Significant Contract or (ii) materially adversely affect the
financial condition, properties, prospects or operations of the
Borrower as a whole.
(c) All other legal and regulatory matters relating to
this Agreement, the Notes, the Advances and the repayment of the
Existing Debt shall be satisfactory to the Arranger and the
Lenders.
(d) No Unmatured Default or Event of Default shall have
occurred and be continuing.
(e) The Borrower shall have paid all fees under or
referenced in Section 2.02 hereof, to the extent then due and
payable.
(f) The Closing Date shall have occurred on or prior to
November 9, 2000.
Section 5.02. Reliance on Certificates.
The Lenders and the Administrative Agent shall be entitled
to rely conclusively upon the certificates delivered from time
to time by officers of the Borrower and the other parties to the
Significant Contracts as to the names, incumbency, authority and
signatures of the respective persons named therein until such
time as the Administrative Agent may receive a replacement
certificate, in form acceptable to the Administrative Agent,
from an officer of such Person identified to the Administrative
Agent as having authority to deliver such certificate, setting
forth the names and true signatures of the officers and other
representatives of such Person thereafter authorized to act on
behalf of such Person.
Article VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the
Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized and
validly existing under the laws of the State of New Hampshire.
The Borrower is duly qualified to do business in, and is in good
standing in, all other jurisdictions where the nature of its
business or the nature of property owned or used by it makes
such qualifications necessary.
(b) The execution, delivery and performance by the
Borrower of each Loan Document are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not and will not contravene (i) the
Borrower's charter or by-laws or (ii) any law or legal or
contractual restriction binding on or affecting the Borrower;
and such execution, delivery and performance do not or will not
result in or require the creation of any Lien upon or with
respect to any of its properties. Each Significant Contract was
duly authorized, executed and delivered by the Borrower and is
in full force and effect.
(c) No Governmental Approval is required for the
execution, delivery or performance by the Borrower of the Loan
Documents, except for those Governmental Approvals set forth on
Schedule II, each of which has been duly obtained or made and is
in full force and effect and in respect of which all applicable
periods of time for review, rehearing or appeal have expired.
No Governmental Approval is required (i) for the performance by
the Borrower of the Significant Contracts or (ii) in connection
with the nature of the Borrower's business, except in each case
for such as have been duly obtained or made and are in full
force and effect and in respect of which all applicable periods
of time for review, rehearing or appeal have expired, or, in the
case of Governmental Approvals referred to in clause (ii), such
as can reasonably be expected to be obtained in the ordinary
course of the Borrower's business without undue burden or
expense.
(d) This Agreement, the Notes and each Significant
Contract are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with
their respective terms; subject to the qualification, however,
that the enforcement of the rights and remedies herein and
therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors
and that the remedy of specific performance or of injunctive
relief is subject to the discretion of the court before which
any proceedings therefor may be brought.
(e) The audited balance sheet of the Borrower as of
December 31, 1999, and the related statements of the Borrower
setting forth the results of operations and cash flows of the
Borrower for the fiscal year then ended, and the unaudited
balance sheet of the Borrower as of June 30, 2000, and the
related statements of the Borrower setting forth the results of
operations and cash flows of the Borrower for the fiscal
quarter then ended, copies of which have been furnished to each
Bank, fairly present in all material respects the financial
condition, results of operations and cash flows of the Borrower
at and for the periods ended on such dates, and have been
prepared in accordance with generally accepted accounting
principles consistently applied. Except as reflected in such
financial statements and in the Disclosure Documents, the
Borrower has no material non-contingent liabilities, and all
contingent liabilities have been appropriately reserved. The
financial projections provided previously to the Arranger and
the Lenders were prepared in good faith and on the basis of
reasonable assumptions, and, as of the date of this Agreement,
nothing has come to the attention of the Borrower's senior
management to indicate that such assumptions are no longer
reasonable. Since June 30, 2000, there has been no material
adverse change in the Borrower's financial condition,
operations, properties or prospects, except as disclosed in the
Disclosure Documents.
(f) Except as set forth in the Disclosure Documents,
there is no pending or known threatened action or proceeding
(including, without limitation, any action or proceeding
relating to any environmental protection laws or regulations)
affecting the Borrower or its properties before any court,
governmental agency or arbitrator, which may: (i) purport to
affect the legality, validity or enforceability of the Existing
Debt, any Loan Document or any Significant Contract or (ii)
materially adversely affect the financial condition, properties,
prospects or operations of the Borrower as a whole.
(g) The Borrower has title to its assets sufficient for
the operation of its business, subject only to Permitted Liens.
All insurance required by Section 7.01(c) hereof is in full
force and effect.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan
which would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower, except as
disclosed to and consented by the Majority Lenders in writing.
Since the date of the most recent Schedule B (Actuarial
Information) to the Annual Report of the Borrower (Form 5500
Series), if any, there has been no material adverse change in
the funding status of the ERISA Plans referred to therein and no
"prohibited transaction" (other than such as may be exempted
under Section 408 of ERISA and applicable regulations
thereunder) has occurred with respect thereto, except as
described in the Disclosure Documents. Neither the Borrower nor
any of its ERISA Affiliates has incurred nor reasonably expects
to incur any material withdrawal liability under ERISA to any
ERISA Multiemployer Plan, except as disclosed to and consented
by the Majority Lenders in writing.
(i) The Borrower has filed all tax returns (federal,
state and local) required to be filed and paid taxes shown
thereon to be due, including interest and penalties, or, to the
extent the Borrower is contesting in good faith an assertion of
liability based on such returns, has provided adequate reserves
in accordance with generally accepted accounting principles for
payment thereof.
(j) No exhibit, schedule, report or other written
information provided by the Borrower or its agents to the
Arranger or the Lenders in connection with the negotiation,
execution and closing of this Agreement knowingly contained when
made any material misstatement of fact or knowingly omitted to
state any material fact necessary to make the statements
contained therein not misleading in light of the circumstances
under which they were made.
(k) No event has occurred and is continuing which
constitutes a material default under the Rate Agreement or any
Significant Contract.
(l) All proceeds of the Advances will be applied to the
repayment of the Existing Debt.
(m) No proceeds of any Advance will be used (A) to
acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of 1934 or
(B) to buy or carry any margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal
Reserve System) or to extend credit to others for such purpose.
The Borrower (i) is not an "investment company" within the
meaning ascribed to that term in the Investment Company Act of
1940 and (ii) is not engaged in the business of extending credit
for the purpose of buying or carrying margin stock.
(n) The Borrower is in compliance in all material
respects with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, including
without limitation any such laws, rules, regulations and orders
relating to utilities, zoning, environmental protection, use and
disposal of Hazardous Substances, land use, construction and
building restrictions, and employee safety and health matters
relating to business operations and without limiting the
foregoing all "financial protection" and other requirements of
the Xxxxx-Xxxxxxxx Act, as amended from time to time and all
other laws relating to nuclear plant owners and operators,
except to the extent (i) that the Borrower is contesting the
same in good faith by appropriate proceedings or (ii) that any
such non-compliance, and the enforcement or correction thereof,
would not materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole
or (iii) disclosed in the Disclosure Documents.
(o) No Unmatured Default or Event of Default has
occurred and is continuing.
(p) No "Default" or "Event of Default" (as those terms
are defined in the First Mortgage Indenture) has occurred and is
continuing. As of the date of this Agreement, the aggregate
principal amount of all First Mortgage Bonds outstanding is
$135,000,000.
Article VII
COVENANTS OF THE BORROWER
Section 7.01. Affirmative Covenants.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 6.01(l) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, all taxes, assessments and
governmental charges, royalties or levies imposed upon it or
upon its property except to the extent the Borrower is
contesting the same in good faith by appropriate proceedings and
has set aside adequate reserves for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-
insurance) covering the Borrower and its properties in effect at
all times in such amounts and covering such risks as may be
required by law and in addition as is usually carried by
companies engaged in similar businesses and owning similar
properties. Such insurance shall in any event include all
"financial protection" required by the Xxxxx-Xxxxxxxx Act, as
amended from time to time.
(d) Preservation of Existence, Etc. Preserve and
maintain its corporate existence, material rights (statutory and
otherwise) and franchises.
(e) Compliance with Laws, Etc.. Comply in all material
respects with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, including
without limitation any such laws, rules, regulations and orders
relating to utilities, zoning, environmental protection, use and
disposal of Hazardous Substances, land use, construction and
building restrictions, and employee safety and health matters
relating to business operations and without limiting the
foregoing all "financial protection" and other requirements of
the Xxxxx-Xxxxxxxx Act, as amended from time to time and all
other laws relating to nuclear plant owners and operators,
except to the extent (i) that the Borrower is contesting the
same in good faith by appropriate proceedings or (ii) that any
such non-compliance, and the enforcement or correction thereof,
would not materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(f) Inspection Rights. At any time and from time to
time upon reasonable notice and subject to reasonable
coordination measures agreed upon by the Administrative Agent
and the Borrower, permit the Lenders and their respective agents
and representatives to examine and make copies of and abstracts
from the records and books of account of, and the properties of,
the Borrower and to discuss the affairs, finances and accounts
of the Borrower with the Borrower and with its officers,
directors and accountants.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all
financial transactions of the Borrower and the assets and
business of the Borrower, in accordance with good accounting
practices consistently applied.
(h) Performance of Related Agreements. Perform and
observe all material terms and provisions of each Significant
Contract and take all reasonable steps to enforce each
Significant Contract substantially in accordance with its terms
and to preserve the rights of the Borrower thereunder; provided,
that the foregoing provisions of this Section 7.01(h) shall not
preclude the Borrower from any waiver, amendment, modification,
consent or termination permitted under Section 7.02(h) hereof.
(i) Collection of Accounts Receivable. Promptly xxxx,
and diligently pursue collection of, in accordance with
customary utility practices, all accounts receivable owing to
the Borrower and all other amounts that may from time to time be
owing to the Borrower for services rendered or goods sold.
(j) Maintenance of Financial Covenants.
(i) Common Equity Ratio. Maintain at all times a
Common Equity Ratio of not less than 0.25:1.00.
(ii) Interest Coverage Ratio. Maintain at all times
an Interest Coverage Ratio of not less than the 1.50:1.00.
(k) Maintenance of Properties, Etc. Maintain, develop,
and operate in substantial conformity with all laws, material
contractual obligations and prudent practices prevailing in the
industry, all of its properties which are used or useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent such non-
conformity would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower
as a whole.
(l) Governmental Approvals. Duly obtain on or prior to
such date as the same may become legally required, and
thereafter maintain in effect at all times, all Governmental
Approvals required (i) for the execution, delivery and
performance by the Borrower of the Loan Documents, (ii) for the
performance by the Borrower of the Significant Contracts and
(iii) in connection with the nature of the Borrower's business,
except, in the case of clause (iii) only, those the absence of
which would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower
as a whole.
Section 7.02. Negative Covenants.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will not, without
the written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to
exist any lien, security interest, or other charge or
encumbrance (including the lien or retained security title of a
conditional vendor) of any kind, or any other type of
preferential arrangement the intent or effect of which is to
assure a creditor against loss or to prefer one creditor over
another creditor (other than any preferential arrangement under
the Joint Ownership Agreement with respect to any party thereto)
upon or with respect to any of its properties of any character
(any of the foregoing being referred to herein as a "Lien")
whether now owned or hereafter acquired, or sign or file under
the Uniform Commercial Code of any jurisdiction a financing
statement which names the Borrower as debtor, sign any security
agreement authorizing any secured party thereunder to file such
financing statement, or assign accounts, excluding, however,
from the operation of the foregoing restrictions the following,
whether now existing or hereafter created or perfected
("Permitted Liens"):
(i) Liens for taxes, assessments or governmental
charges or levies thereon if the same shall not at the time
be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance
with generally accepted accounting principles shall have
been set aside on the Borrower's books.
(ii) Liens imposed by law (other than ERISA), such as
carriers; warehousemen's and mechanics' liens and other
similar liens arising in the ordinary course of business
which secure payment of obligations not more than 60 days
past due.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation (other than ERISA).
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are
of a nature generally existing with respect to properties
of a similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower.
(v) Liens in existence on the Closing Date none of
which materially adversely affects or will affect the
ongoing conduct of the Borrower's business and none of
which (except as described in clause (vi) below) extends to
the Unit Contract.
(vi) The Lien of the First Mortgage Indenture to the
extent of the First Mortgage Bonds outstanding on the
Closing Date.
(vii) attachment, judgment and other similar Liens
arising in connection with court proceedings, provided, the
execution or other enforcement thereof is effectively
stayed, the claims secured thereby are being contested at
the time in good faith and no Event of Default shall have
occurred and be continuing;
(viii) any rights of the Nuclear Regulatory Commission
with respect to Seabrook; and
(ix) Liens against the interest of some other Person
(other than the Borrower) with respect to obligations which
have not been assumed or guaranteed by the Borrower and on
which the Borrower does not customarily pay interest
charges, existing on Seabrook or other property which the
Borrower jointly holds with such other Person (or such
Person and others) or upon property in which the Borrower
is a tenant in common with such other Person (or such
Person and others).
(b) Debt. Create, incur, assume or suffer to exist any
Debt, except for:
(i) First Mortgage Bonds presently outstanding;
(ii) Debt arising under the Loan Documents;
(iii) Debt in respect of interest rate swaps, caps
and similar arrangements entered into for purposes of
hedging interest rate risk arising under the Loan
Documents;
(iv) Debt consisting of maintenance and similar
obligations arising under the Joint Ownership Agreement;
and
(v) Debt in the form of unsecured borrowings not to
exceed $60,000,000 at any time outstanding;
and then only to the extent that the creation, incurrence,
assumption or existence of such Debt would not result in a
violation of Section 7.01(j).
(c) [Reserved]
(d) Mergers, Etc. Merge with or into or consolidate
with or into, or acquire all or substantially all of the assets
of, any Person.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of all or any part of its assets other than
(i) subject to compliance with Section 4.02(c), the "buydown" of
the Seabrook Interest to $100,000,000 as contemplated by Section
VIII(K) of the Settlement Agreement and the NHPUC Order, (ii)
subject to compliance with Section 4.02(c), the sale of the
Seabrook Interest as contemplated by the Final Settlement, and
(iii) dispositions of assets no longer required in the ordinary
course of the Borrower's business. Without limitation of the
foregoing, the Borrower shall not (x) sell, lease, transfer or
otherwise dispose of any of its receivables to any unaffiliated
third party, except for collection in the ordinary course of the
Borrower's business of delinquent accounts, or (y) enter into
any sale-leaseback transaction.
(f) Investments in Other Persons. Make any loan or
advance to any Person or purchase or otherwise acquire any
capital stock, obligations or other securities of, make any
capital contribution to, or otherwise invest in, any Person
other than Permitted Investments and loans, advances, purchases
and investments listed on Schedule III hereto.
(g) Compliance with ERISA. (i) Terminate, or permit
any ERISA Affiliate to terminate, any ERISA Plan so as to result
in any material (in the opinion of the Majority Lenders)
liability of the Borrower to the PBGC, or (ii) permit to exist
any occurrence of any Reportable Event (as defined in Title IV
of ERISA), other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under applicable
regulations, or any other event or condition, which presents a
material (in the opinion of the Majority Lenders) risk of such a
termination by the PBGC of any ERISA Plan and such a material
liability to the Borrower.
(h) Significant Contracts.
(i) Amendments. Amend, modify or supplement or give
any consent, acceptance or approval to any amendment,
modification or supplement or deviation by any party from
the terms of any Significant Contract, except any
amendment, modification or supplement to any Significant
Contract that would not reduce the rights or entitlements
of the Borrower thereunder in any material way and except,
in the case of the Tax Allocation Agreement, for such
amendments and modifications as may be required by
applicable law or appropriate to add affiliates
Consolidated Edison, Inc. in connection with the
acquisition of NU by Consolidated Edison, Inc.
(ii) Termination. Cancel or terminate (or consent to
any cancellation or termination of) any Significant
Contract prior to the expiration of its stated term.
(i) Change in Nature of Business. Engage in any
material business activity other than the generation and sale of
electricity.
(j) Ownership in Seabrook and Nuclear Plants.
(i) acquire, directly or indirectly, any additional
ownership interest in Seabrook, or any ownership interest
or any additional ownership interest of any kind in any
other nuclear-powered electric generating plant.
(ii) amend, modify or supplement, or give any consent,
acceptance or approval to any amendment, modification or
supplementation to, the Joint Ownership Agreement which
would cause (a) the Borrower to acquire any additional
ownership interest in Seabrook or (b) increase the
obligations of the Borrower thereunder without increasing
ratably the obligations of the other parties thereto.
(k) Subsidiaries. Create or suffer to exist any
subsidiaries.
Section 7.03. Reporting Obligations.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing, furnish to
the Administrative Agent in sufficient copies for each Lender,
the following:
(i) as soon as possible and in any event within five
(5) days after the occurrence of each Event of Default or
Unmatured Default continuing on the date of such statement,
a statement of the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Borrower setting forth details
of such Event of Default or Unmatured Default and the
action which the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event within
fifty (50) days after the end of each of the first three
quarters of each fiscal year of the Borrower, (A) if and so
long as the Borrower is required to submit to the
Securities and Exchange Commission a report on Form 10-Q, a
copy of the Borrower's report on Form 10-Q submitted to the
Securities and Exchange Commission with respect to such
quarter and (B) if the Borrower ceases to be required to
submit such report, a balance sheet of the Borrower as of
the end of such quarter and statements of income and
retained earnings and of cash flows of the Borrower for the
period commencing at the end of the previous fiscal year
and ending with the end of such quarter, all in reasonable
detail and duly certified (subject to year-end audit
adjustments) by the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Borrower as having been prepared
in accordance with generally accepted accounting
principles, in each such case, delivered together with a
certificate of said officer (X) stating that no Event of
Default or Unmatured Default has occurred and is continuing
or, if an Event of Default or Unmatured Default has
occurred and is continuing, a statement as to the nature
thereof and the action which the Borrower proposes to take
with respect thereto and (Y) demonstrating compliance with
Section 7.01(j) for and as of the end of such fiscal
quarter and compliance with Section 7.02(b) as of the dates
on which any Debt was created, issued, incurred or assumed
(using the Borrower's most recent annual actuarial
determinations in the computation of Debt referred to in
clause (ix) in the definition of "Debt") during such
quarter and as of the end of such fiscal quarter, such
demonstration to be in a schedule (in form satisfactory to
the Majority Lenders) which sets forth the computations
used by the Borrower in determining such compliance;
(iii) as soon as available and in any event within
105 days after the end of each fiscal year of the Borrower,
(A) if and so long as the Borrower is required to submit to
the Securities and Exchange Commission a report on Form 10-
K, a copy of the Borrower's report on Form 10-K submitted
to the Securities and Exchange Commission with respect to
such year and (B) in any case, a copy of the annual report
for such year for the Borrower including therein an audited
balance sheet of the Borrower as of the end of such fiscal
year and audited statements of income and retained earnings
and of cash flows of the Borrower for such fiscal year, in
each case certified by a nationally-recognized independent
public accountant and delivered with a certificate of the
Chief Financial Officer, Treasurer or Assistant Treasurer
(X) stating that no Event of Default or Unmatured Default
has occurred and is continuing, or if an Event of Default
or Unmatured Default has occurred and is continuing, a
statement as to the nature thereof and the action which the
Borrower proposes to take with respect thereto and (Y)
demonstrating compliance with Section 7.01(j) for and as of
the end of such fiscal year and compliance with Sections
7.02(b) as of the dates on which any Debt was created,
issued, incurred or assumed (using the Borrower's most
recent annual actuarial determinations in the computation
of Debt referred to in clause (viii) of the definition of
"Debt") during the last fiscal quarter of such fiscal year
and as of the end of such fiscal year, such demonstration
to be in a schedule (in form satisfactory to the Majority
Lenders) which sets forth the computations used by the
Borrower in determining such compliance;
(iv) as soon as available and in any event within 60
days prior to March 31 of each fiscal year, a copy of an
operating budget/forecast of operations of the Borrower as
approved by the Board of Directors of the Borrower in form
satisfactory to the Lenders for the next fiscal year of the
Borrower, together with a certificate of the Chief
Financial Officer, Treasurer or Assistant Treasurer of the
Borrower stating that such budget/forecast was prepared in
good faith and on reasonable assumptions;
(v) as soon as possible and in any event (A) within
30 days after the Borrower knows or has reason to know that
any ERISA Plan Termination Event described in clause (i) of
the definition of ERISA Plan Termination Event with respect
to any ERISA Plan or ERISA Multiemployer Plan has occurred
and (B) within 10 days after the Borrower knows or has
reason to know that any other ERISA Plan Termination Event
with respect to any ERISA Plan or ERISA Multiemployer Plan
has occurred, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower describing
such ERISA Plan Termination Event and the action, if any,
which the Borrower proposes to take with respect thereto;
(vi) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from the PBGC, copies of each
notice received by the Borrower or any such ERISA Affiliate
of the PBGC's intention to terminate any ERISA Plan or
ERISA Multiemployer Plan or to have a trustee appointed to
administer any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the
Annual Report of the Borrower (Form 5500 Series) with
respect to each ERISA Plan (if any) to which the Borrower
is a contributing employer;
(viii) promptly after receipt thereof by the Borrower
or any of its ERISA Affiliates from an ERISA Multiemployer
Plan sponsor, a copy of each notice received by the
Borrower or any of its ERISA Affiliates concerning the
imposition or amount of withdrawal liability in an
aggregate principal amount of at least $10,000,000 pursuant
to Section 4202 of ERISA in respect of which the Borrower
may be liable;
(ix) promptly after the Borrower becomes aware of the
occurrence thereof, notice of all actions, suits,
proceedings or other events (A) of the type described in
Section 6.01(f), or (B) which purport to affect the
legality, validity or enforceability of any of the Loan
Documents or Significant Contracts;
(x) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements,
and reports which the Borrower sends to its public security
holders (if any) or files with, and copies of all regular,
periodic and special reports and all registration
statements, if any, which the Borrower files with, the
Securities and Exchange Commission or any governmental
authority which may be substituted therefor, or with any
national securities exchange;
(xi) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements,
and reports which PSNH sends to its public security holders
(if any) or files with, and copies of all regular, periodic
and special reports and all registration statements, if
any, which PSNH files with, the Securities and Exchange
Commission or any governmental authority which may be
substituted therefor, or with any national securities
exchange;
(xii) promptly after receipt thereof, any assertion
of the character described in Section 8.01(i) hereof and
the action the Borrower proposes to take with respect
thereto;
(xiii) promptly after knowledge of any material
default under any Significant Contract or the Rate
Agreement, notice of such default and the action the
Borrower proposes to take with respect thereto;
(xiv) promptly after knowledge of any amendment,
modification or other change to any Significant Contract or
the Rate Agreement or to any Governmental Approval
affecting any Significant Contract or the Rate Agreement,
notice of such amendment, modification or other change; and
(xv) promptly after requested, such other information
respecting the financial condition, operations, properties,
prospects or otherwise, of the Borrower or PSNH as the
Administrative Agent or Majority Lenders may from time to
time reasonably request in writing.
Article VIII
DEFAULTS
Section 8.01. Events of Default.
The following events shall each constitute an "Event of
Default" if the same shall occur and be continuing after the
grace period and notice requirement (if any) applicable thereto:
(a) The Borrower shall fail to pay any principal of any
Note when due or shall fail to pay any interest on any Note or
any other amount due hereunder within two days after the same
becomes due;
(b) Any representation or warranty made by the Borrower
(or any of its officers or agents) in this Agreement, any other
Loan Document, certificate or other writing delivered pursuant
hereto or thereto shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any
term or covenant on its part to be performed or observed
contained in Sections 7.01(a), (d) or (j), Section 7.02 or
Section 7.03(i) hereof; or
(d) The Borrower shall fail to perform or observe any
other term or covenant on its part to be performed or observed
contained in this Agreement or any Loan Document and any such
failure shall remain unremedied, after written notice thereof
shall have been given to the Borrower by the Administrative
Agent or any Lender, for a period of 30 days; or
(e) The Borrower shall fail to pay any of its Debt when
due (including any interest or premium thereon but excluding
Debt evidenced by the Notes and excluding other Debt aggregating
in no event more than $10,000,000 in principal amount at any one
time) whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in
any agreement or instrument relating to such Debt; or any other
default under any agreement or instrument relating to any such
Debt, or any other event, shall occur and shall continue after
the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment or as a result of the Borrower's
exercise of a prepayment option) prior to the stated maturity
thereof; unless in each such case the obligee under or holder of
such Debt or the trustee with respect to such Debt shall have
waived in writing such circumstance without consideration having
been paid by the Borrower so that such circumstance is no longer
continuing; or
(f) PSNH shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt
aggregating less than $10,000,000 in principal amount at any one
time) whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in
any agreement or instrument relating to such Debt; or any other
default under any agreement or instrument relating to any such
Debt, or any other event, shall occur and shall continue after
the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment or as a result of PSNH's exercise
of a prepayment option) prior to the stated maturity thereof;
unless in each such case the obligee under or holder of such
Debt or the trustee with respect to such Debt shall have waived
in writing such circumstance without consideration having been
paid by PSNH so that such circumstance is no longer continuing;
or
(g) The Borrower or PSNH shall generally not pay its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or PSNH seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of its debts under any law relating to
bankruptcy, insolvency, or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for
any substantial part of its property and, in the case of a
proceeding instituted against the Borrower or PSNH, as the case
may be, the Borrower or PSNH, as the case may be, shall consent
thereto or such proceeding shall remain undismissed or unstayed
for a period of 90 days or any of the actions sought in such
proceeding (including without limitation the entry of an order
for relief against the Borrower or PSNH, as the case may be, or
the appointment of a receiver, trustee, custodian or other
similar official for the Borrower or PSNH, as the case may be,
or any of their respective properties) shall occur; or the
Borrower or PSNH shall take any corporate or other action to
authorize any of the actions set forth above in this subsection
(g); or
(h) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Borrower or
its properties, or any judgment or order for the payment of
money in excess of $10,000,000 shall be rendered against PSNH or
its properties, and, in either case, either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order and shall not have been stayed or (ii) there
shall be any period of 15 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) Any material provision of any Loan Document, the
Rate Agreement or any Significant Contract shall for any reason
other than the express terms thereof or the exercise of any
right or option expressly contained therein cease to be valid
and binding on any party thereto except as otherwise expressly
permitted by the exception contained in Section 7.02(h)(i)
hereof; or any party thereto other than the Lenders shall so
assert in writing, provided that in the case of any party other
than the Borrower making such assertion in respect of any
Significant Contract (or PSNH in the case of the Rate
Agreement), such assertion shall not in and of itself constitute
an Event of Default hereunder until (i) such asserting party
shall cease to perform under and in compliance with the Rate
Agreement or such Significant Contract, (ii) the Borrower (or
PSNH, in the case of the Rate Agreement) shall fail to
diligently prosecute, by appropriate action or proceedings, a
rescission of such assertion or a binding determination as to
the merits thereof or (iii) such a binding determination shall
have been made in favor of such asserting party's position; or
(j) The Borrower shall not have in full force and effect
any or all insurance required under Section 7.01(c) hereof or
there shall be incurred any uninsured damage, loss or
destruction of or to the Borrower's properties in an amount not
covered by insurance (including fully-funded self-insurance
programs) which the Majority Lenders consider to be material; or
(k) A default by the Borrower shall have occurred under
the Unit Contract and shall not have been effectively cured
within the time period specified therein for such cure (or, if
no such time period is specified therein, 10 days); or a default
by any party shall have occurred under any Significant Contract
or by PSNH shall have occurred under the Rate Agreement and, in
either such case, such default shall not have been effectively
cured within 30 days after notice from the Administrative Agent
to the Borrower stating that, in the opinion of the Majority
Lenders, such default may have a material adverse effect upon
the financial condition, operations, properties or prospects of
the Borrower as a whole; or
(l) Any Governmental Approval (whether federal, state or
local) required to give effect to the Unit Contract or the Rate
Agreement (including, without limitation, Chapter 362-C of the
New Hampshire Revised Statutes and the enabling order of The New
Hampshire Public Utilities Commission issued pursuant thereto)
shall be amended, modified or supplemented, or any other
regulatory or legislative action or change (whether federal,
state or local) having the effect, directly or indirectly, of
modifying the benefits or entitlements of the Borrower under the
Unit Contract or of PSNH under the Rate Agreement shall occur,
and in any such case such amendment, modification, supplement,
action or change may have, in the opinion of the Majority
Lenders, a material adverse effect upon the financial condition,
operations, properties or prospects of the Borrower as a whole;
or
(m) NU shall cease to own all of the outstanding common
stock of the Borrower and PSNH, in each case free and clear of
any Liens.
Section 8.02. Remedies Upon Events of Default.
Upon the occurrence and during the continuance of any Event
of Default, then, and in any such event, the Administrative
Agent shall at the request, or may with the consent, of the
Majority Lenders, upon notice to the Borrower (i) declare the
Commitments and the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate,
and (ii) declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the Commitments and the obligation of each
Lender to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
Article IX
THE ADMINISTRATIVE AGENT
Section 9.01. Authorization and Action.
Each Lender hereby (i) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto
and (ii) agrees that the Arranger, in its capacity as such,
shall have no duties or obligations hereunder. As to any
matters not expressly provided for by any Loan Document
(including, without limitation, enforcement or collection
thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions
shall be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or
which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to deliver promptly to each Lender
notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
Section 9.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in
connection with any Loan Document, except for its or their own
gross negligence or wilful misconduct. Without limitation of
the generality of the foregoing, the Administrative Agent: (i)
may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts a Lender Assignment
entered into by the Lender which is the payee of such Note, as
assignor, and an assignee, as provided in Section 10.07; (ii)
may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be (nor
shall the Arranger be) responsible to any Lender for any
statements, warranties or representations made in or in
connection with any Loan Document; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of any Loan
Document on the part of the Borrower to be performed or
observed, or to inspect any property (including the books and
records) of the Borrower; (v) shall not be responsible to any
Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan
Document, Significant Contract or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting
upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable or telex) believed by
it to be genuine and signed or sent by the proper party or
parties.
Section 9.03. Bank One and Affiliates.
With respect to its Commitment and the Note issued to it,
Bank One shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Bank One in its individual capacity. Bank
One and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower, any of its subsidiaries and
any Person who may do business with or own securities of the
Borrower or any such subsidiary, all as if Bank One were not the
Administrative Agent, and without any duty to account therefor
to the Lenders.
Section 9.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Arranger or
any Lender and based on the financial information referred to in
Section 6.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 9.05. Indemnification.
The Lenders agree to indemnify the Arranger and the
Administrative Agent, in their respective capacities as such and
to the extent not reimbursed by the Borrower, ratably according
to the respective principal amounts of the Notes then held by
each such Lender (or if no Notes are at the time outstanding or
if any Notes are held by Persons which are not Lenders, ratably
according to the respective Commitments of the Lenders), from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Arranger or the
Administrative Agent in their respective capacities as such in
any way relating to or arising out of this Agreement or any
action taken or omitted by the Arranger or the Administrative
Agent in their respective capacities as such under this
Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Arranger's or the
Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent and the Arranger promptly
upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent
and the Arranger in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities
under, this Agreement to the extent that the Administrative
Agent and the Arranger are entitled to reimbursement for such
expenses pursuant to Section 10.04 but are not reimbursed for
such expenses by the Borrower.
Section 9.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, with any
such resignation to become effective only upon the appointment
of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall
have the right to appoint a successor Administrative Agent,
which shall be a Lender or another commercial bank or trust
company reasonably acceptable to the Borrower organized or
licensed under the laws of the United States, or of any State
thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a Lender or shall
be another commercial bank or trust company organized or
licensed under the laws of the United States or of any State
thereof reasonably acceptable to the Borrower. In addition to
the foregoing right of the Administrative Agent to resign, the
Majority Lenders may remove the Administrative Agent at any
time, with or without cause, concurrently with the appointment
by the Majority Lenders of a successor Administrative Agent.
Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent and the execution
and delivery by the Borrower and the successor Administrative
Agent of an agreement relating to the fees to be paid to the
successor Administrative Agent under Section 2.02(c) hereof in
connection with its acting as Administrative Agent hereunder,
such successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this
Agreement.
Article X
MISCELLANEOUS
Section 10.01. Amendments, Etc.
No amendment or waiver of any provision of this Agreement
or any Note, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Lenders, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following:
(a) waive, modify or eliminate any of the conditions specified
in Article V (other than Section 5.02(c)(i), (b) increase the
Commitments of the Lenders that may be maintained hereunder or
subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Notes, any Applicable
Margin or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable
hereunder (other than fees payable to the Administrative Agent
pursuant to Section 2.02(c) hereof), (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount
of the Notes, or the number of Lenders which shall be required
for the Lenders or any of them to take any action hereunder, (f)
amend this Agreement or any Note in a manner intended to prefer
one or more Lenders over any other Lender or (g) amend this
Section 10.01; and provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
Section 10.02. Notices, Etc.
All notices and other communications provided for hereunder
and under the other Loan Documents shall be in writing
(including telegraphic, telex, telecopy or cable communication)
and mailed, telegraphed, telexed, telecopied, cabled or
delivered, (i) if to the Borrower, at its address at 0000 Xxx
Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 (telecopy
no. 603.669.2438), Attention: Treasurer, with a copy to NUSCO at
its address at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000
(telecopy no. 860.665.5457), Attention: Assistant Treasurer;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; (iii) if to any Lender
other than a Bank, at its Domestic Lending Office specified in
the Lender Assignment pursuant to which it became a Lender; and
(iv) if to the Administrative Agent, at its address at 0 Xxxx
Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Electric, Gas and Telecommunications Department; or, as to each
party, at such other address as shall be designated by such
party in a written notice to the other parties. All such
notices and communications shall, when mailed, telegraphed,
telexed, telecopied or cabled, be effective five days after when
deposited in the mails, or when delivered to the telegraph
company, confirmed by telex answerback, telecopied or delivered
to the cable company, respectively, except that notices and
communications to the Administrative Agent pursuant to Article
II, III, IV or IX shall not be effective until received by the
Administrative Agent.
Section 10.03. No Waiver of Remedies.
No failure on the part of any Lender or the Administrative
Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 10.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable
counsel fees and expenses), of (i) the Administrative Agent and
the Arranger in connection with the preparation, negotiation,
execution and delivery of the Loan Documents, the administration
of the Loan Documents, and any proposed modification, amendment,
or consent relating thereto; and (ii) the Administrative Agent,
the Arranger and each Lender in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise)
of this Agreement or the Notes.
(b) The Borrower hereby agrees to indemnify and hold
each Lender, the Arranger, the Administrative Agent and their
respective officers, directors, employees, professional advisors
and affiliates (each, an "Indemnified Person") harmless from and
against any and all claims, damages, losses, liabilities, costs
or expenses (including reasonable attorney's fees and expenses,
whether or not such Indemnified Person is named as a party to
any proceeding or investigation or is otherwise subjected to
judicial or legal process arising from any such proceeding or
investigation) which any of them may incur or which may be
claimed against any of them by any person or entity (except to
the extent such claims, damages, losses, liabilities, costs or
expenses arise from the gross negligence or willful misconduct
of the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or any
transaction contemplated thereby, or the use by the
Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of
the Borrower or any of its Affiliates at any time and in
any place; or
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority
by reason of the execution and delivery of any of the Loan
Documents.
(c) The Borrower's obligations under this Section 10.04
shall survive the assignment by any Lender pursuant to Section
10.07 and shall survive as well the repayment of all amounts
owing to the Lenders, the Arranger and the Administrative Agent
under the Loan Documents and the termination of the Commitments.
If and to the extent that the obligations of the Borrower under
this Section 10.04 are unenforceable for any reason, the
Borrower agrees to make the maximum contribution to the payment
and satisfaction thereof which is permissible under applicable
law.
Section 10.05. Right of Set-off.
(a) Upon the occurrence and during the continuance of
any Event of Default, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender,
irrespective of whether or not such Lender shall have made any
demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
(b) The Borrower agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations
hereunder, and that the obligations of the Lenders hereunder are
several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of the Borrower's rights
to any independent claim that the Borrower may have against the
Administrative Agent or any Lender, but no Lender shall be
liable for the conduct of the Administrative Agent or any other
Lender, and the Administrative Agent shall not be liable for the
conduct of any Lender.
Section 10.06. Binding Effect.
This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each
Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
Section 10.07. Assignments and Participation.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under
this Agreement, the Notes and the Security Documents (including,
without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it) with the
prior written consent of the Borrower to the extent the assignee
thereunder is not then a Lender or an Affiliate of a Lender
(which consent shall not be unreasonably withheld); provided,
however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement, (ii) to the extent
the assignee thereunder is not then a Lender or an Affiliate of
a Lender, the amount of the Commitment or Note(s) to be held by
such assignee (after giving effect to such assignment and any
other assignments being made concurrently therewith to the same
assignee by one or more other Lenders) shall in no event be less
than $5,000,000, unless such assignment is of the entire amount
of the assigning Lender's Commitment, and (iii) the parties to
each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the
Register, a Lender Assignment, together with any Note or Notes
subject to such assignment and a processing and recordation fee
of $2,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Lender Assignment, which effective date shall be at least five
Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it
pursuant to such Lender Assignment, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it to an assignee pursuant to
such Lender Assignment, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of a
Lender Assignment covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto); provided,
however, if an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have declared all
Advances to be immediately due and payable hereunder a Lender
may assign all or a portion of its rights and obligations
without the prior written consent of the Borrower but otherwise
in accordance with this Section.
(b) By executing and delivering a Lender Assignment, the
Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Lender Assignment,
such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any
Loan Document or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has
received a copy of each Loan Document, together with copies of
the financial statements referred to in Section 6.01(e) and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, the Arranger,
such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the Notes; (v) such
assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated to
the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this
Agreement and the Notes are required to be performed by it as a
Lender.
(c) The Administrative Agent shall maintain at its
address referred to in Section 10.02 a copy of each Lender
Assignment delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by
an assigning Lender and an assignee, together with any Note or
Notes subject to such assignment and any consent required by
Section 10.07(a), the Administrative Agent shall, if such Lender
Assignment has been completed and is in substantially the form
of Exhibit 10.07 hereto, (i) accept such Lender Assignment, (ii)
record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note
to the order of such assignee in an amount equal to the
Commitment assumed by it pursuant to such Lender Assignment and,
if the assigning Lender has retained a Commitment hereunder, a
new Note to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Lender Assignment and
shall otherwise be in substantially the form of Exhibit 1.01A
hereto.
(e) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under the Loan Documents (including, without
limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided,
however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement, and (v) unless the Borrower shall have
previously consented to the sale of such participation, the
holder of any such participation, other than an Affiliate of
such Lender, shall not be entitled to require such Lender to
take or omit to take any action hereunder, except action (A)
extending the time for payment of interest on, or the maturity
of the principal amount of, the Notes or (B) reducing the
principal amount of or the rate or amount of interest payable on
the Notes.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant
to this Section 10.07, disclose to the assignee or participant
or proposed assignee or participant, any information relating to
the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant
shall agree, in accordance with the terms of Section 10.08, to
preserve the confidentiality of any Confidential Information
received by it from such Lender.
(g) If any Lender shall have delivered a notice to the
Administrative Agent described in Section 4.03 (a), (b), (c) or
(f) hereof, or shall become a non-performing Lender under
Section 3.01(c) hereof, and if and so long as such Lender shall
not have withdrawn such notice or corrected such non-performance
in accordance with Section 3.01(c), the Borrower or the
Administrative Agent may demand that such Lender assign in
accordance with Section 10.07 hereof, to one or more assignees
designated by either the Borrower or the Administrative Agent
(and reasonably acceptable to the other), all (but not less than
all) of such Lender's Commitment, Advances, participation and
other rights and obligations hereunder; provided that any such
demand by the Borrower during the continuance of an Event of
Default or an Unmatured Default shall be ineffective without the
consent of the Majority Lenders. If, within 30 days following
any such demand by the Administrative Agent or the Borrower, any
such assignee so designated shall fail to tender such assignment
on terms reasonably satisfactory to the Lender, or the Borrower
and the Administrative Agent shall have failed to designate any
such assignee, then such demand by the Borrower or the
Administrative Agent shall become ineffective, it being
understood for purposes of this provision that such assignment
shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled
to tender such assignment forthwith, if such assignee (1) shall
agree to such assignment in substantially the form of the Lender
Assignment and (2) shall tender payment to such Lender in an
amount equal to the full outstanding dollar amount accrued in
favor of such Lender hereunder (as computed in accordance with
the records of the Administrative Agent.)
(h) Anything in this Section 10.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
Section 10.08. Confidentiality.
In connection with the negotiation and administration of
this Agreement and the other Loan Documents, the Borrower has
furnished and will from time to time furnish to the
Administrative Agent and the Lenders (each, a "Recipient")
written information which is identified to the Recipient when
delivered as confidential (such information, other than any such
information which (i) was publicly available, or otherwise known
to the Recipient, at the time of disclosure, (ii) subsequently
becomes publicly available other than through any act or
omission by the Recipient or (iii) otherwise subsequently
becomes known to the Recipient other than through a Person whom
the Recipient knows to be acting in violation of his or its
obligations to the Borrower, being hereinafter referred to as
"Confidential Information"). The Recipient will not knowingly
disclose any such Confidential Information to any third party
(other than to those persons who have a confidential
relationship with the Recipient), and will take all reasonable
steps to restrict access to such information in a manner
designed to maintain the confidential nature of such
information, in each case until such time as the same ceases to
be Confidential Information or as the Borrower may otherwise
instruct. It is understood, however, that the foregoing will
not restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or
assignees of the Recipient's position herein, but the
Recipient's ability to so exchange Confidential Information
shall be conditioned upon any such prospective participant's
entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing
will not prohibit the disclosure of any or all Confidential
Information if and to the extent that such disclosure may be
required (iv) by a regulatory agency or otherwise in connection
with an examination of the Recipient's records by appropriate
authorities, (v) pursuant to court order, subpoena or other
legal process or (vi) otherwise, as required by law; in the
event of any required disclosure under clause (ii) or (iii),
above, the Recipient agrees to use reasonable efforts to inform
the Borrower as promptly as practicable.
Section 10.09. Waiver of Jury Trial.
The Borrower, the Administrative Agent, and the Lenders
each hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to
this Agreement or any other Loan Document, or any other
instrument or document delivered hereunder or thereunder.
Section 10.10. Governing Law.
This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
The Borrower, the Lenders and the Administrative Agent each (i)
irrevocably submits to the jurisdiction of any New York State
Court or Federal court sitting in New York City in any action
arising out of any Loan Document, (ii) agrees that all claims in
such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process
by mail. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Nothing
herein shall affect the right of any party to serve legal
process in any manner permitted by law or affect its right to
bring any action in any other court.
Section 10.11. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of any Loan Document, or actions taken or to be taken
by any party thereunder, shall be construed to create a
partnership, association, or joint venture between such parties
or any of them. No term or provision of the Loan Documents
shall be construed to confer a benefit upon, or grant a right or
privilege to, any Person other than the parties hereto.
Section 10.12. Execution in Counterparts.
This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
NORTH ATLANTIC ENERGY
CORPORATION
By:
Name
Title:
BANK ONE, N.A. (main office,
Chicago), as Administrative Agent
and as Bank
By:
Name
Title:
BARCLAYS BANK PLC, as Bank
By:
Name
Title
FLEET NATIONAL BANK, as Bank
By:
Name:
Title
UNION BANK OF CALIFORNIA, N.A.,
as Bank
By:
Name
Title
SCHEDULE I
NORTH ATLANTIC ENERGY COMPANY
U.S. $200,000,000 TERM CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Office Eurodollar
Lending Office
Barclays Bank PL C75 Wall Street Nassau Branch
Xxx Xxxx, XX 00000 c/o Barclays Bank
Attn: 00 Xxxx Xxxxxx
Customer Service Xxx Xxxx, XX 00000
Team I Attn:
Customer Service
Team 1
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
000 Xxxxxxxx, 00xx Same as Xxxxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Customer Service
Team 1
Telephone: 212-412-
5028
Telecopy: 212-412-
5002
Fleet National Commercial Loan Services Same as Domestic
Bank 000 Xxxxxxx Xxxxxx 00-00-00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
M/C: MADE 10008A
Attn: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Bank One, N.A. (of
Chicago)
1 Bank One Plaza Same as Domestic
Xxxxx 00-0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Union Bank of 000 X. Xxxxxxxx Xxxxxx Same as Domestic
California, N.A. 00xx Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
SCHEDULE II
GOVERNMENTAL APPROVALS
1. Order No. 23,566 of the New Hampshire Public Utilities
Commission, dated October 6, 2000 in Docket DE 00-176.
SCHEDULE III
INVESTMENTS
None
iii
SCHEDULE IV
COMMITMENTS
Bank Commitment
Bank One, N.A. (of Chicago) $50,000,000
Barclays Bank PLC $50,000,000
Fleet National Bank $50,000,000
Union Bank of California, N.A. $50,000,000