File No. 70-8373
SECURITIES AND EXCHANGE COMMISSION
450 Fifth Street, N.W.
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM U-1
APPLICATION/DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
OCEAN STATE POWER OCEAN STATE POWER II
P.O. Box 561 P.O. Box 561
Harrisville, RI 02830 Harrisville, RI 02830
(Names of companies filing this statement
and addresses of principal executive offices)
EASTERN UTILITIES ASSOCIATES
and
NEW ENGLAND ELECTRIC SYSTEM
(Names of top registered holding company parents)
Jacek Makowski Kenneth M. Simon, Esquire
Chairman, Management Committees Laura J.V. Szabo, Esquire
Ocean State Power Kathleen R. Moynihan, Esquire
Ocean State Power II Dickstein, Shapiro & Morin, L.L.P.
P.O. Box 561 2101 L Street, N.W.
Harrisville, RI 02830 Washington, D.C. 20037
(Names and addresses of agents for service)
The Application/Declaration on Form U-1 of Ocean State Power
("OSP") and Ocean State Power II ("OSP II") (OSP and OSP II,
collectively, the "Applicants"), Commission File No. 70-8373,
filed on March 8, 1994, is hereby amended as follows:
1. Delete in Item 1.B.1, "Proposed Transaction -- The Revolver
Notes," the first paragraph of said Item 1 in its entirety and
substituting the following therefor:
The Applicants propose to issue one or more Revolver Notes to evidence
debt incurred under a revolving line of credit to be
established with one or more lending institutions (collectively
the "Lender"). The Revolver Notes will be issued in an
aggregate principal amount of up to $25,000,000 with the
maturity date not to exceed seven (7) years from the date of
borrowing under the Revolver (the "Final Maturity"), subject to
reborrowing, renewal or extension as described below. The
Revolver Notes will be issued on or before June 1, 1995. The
proceeds of the Revolver Notes will be used to fund capital
expenditures, to pay transaction costs and other costs in
connection with the Financing, and to provide liquidity in
general. Capital expenditures may include all or some portion
of one or more of the following projects, or other projects:
(a) construction of a 30 million gallon water retention pond as
an alternate water supply (current estimated cost $5,000,000);
(b) replacement of feedwater heaters on each of the Facility's
four heat recovery steam generators (current estimated cost
$4,000,000); (c) replacement of catalysts used for nitrogen
oxide control (current estimated cost $4,000,000); (d)
expenditures for the Property Value Stabilization Program to
purchase homes within a one-half mile radius of the Facility
which may be deemed to be affected by the Facility (current
estimated cost $2,500,000); and (e) construction of a building
for the storage of trucks, trailer-mounted machines, large spare
parts, and records (current estimated cost $350,000).
2. Insert at the end of Item 1.B.1, "Proposed Transaction --
The Revolver Notes," the following paragraph:
The Lender will be The Bank of New York ("BNY"). The Final
Maturity of the Revolver Notes will be will be seven years from
the date of closing. The Applicants may elect to borrow under
the Revolver Loan Agreement at either (i) the Base Rate ("BR"),
(ii) the Eurodollar Rate ("Eurodollar") or (iii) the CD Rate
("CD"), plus the Applicable Margin (as defined below). The BR
will be the higher of either (i) BNY's Prime Rate or (ii) the
Federal Funds Rate plus 0.5%.
There is no Applicable Margin for the BR. The Applicable Margin
for Eurodollar will be 0.375% (Years 1-3), 0.4375% (Years 4-5)
and 0.625% (Years 6-7). The Applicable Margin for CD will be
0.50% (Years 1-3), 0.5625% (Years 4-5) and 0.75% (Years 6-7).
3. Item 6, "Exhibits and Financial Statements," the following are
provided:
(a) Exhibits.
A Form of Revolver Loan Agreement
B Form of Revolver Note
C-1 Guarantor Security Agreement [The material contained in
Exhibit C-1 was previously filed with the Commission as Exhibit
B-2 to the Note and Guaranty Agreement, which was filed as
Exhibit A-1 to Form U-1 on July 30, 1992, in Commission File No.
70-7893, and so is omitted herefrom.]
C-2 Guarantor Security Agreement Supplement
E-2 Order of Rhode Island Division of Public Utilities and
Carriers
E-3 Letter of Transmittal to Rhode Island Siting Board Regarding
the Order of Rhode Island Division of Public Utilities and
Carriers
F Opinion of Counsel
G Schedule of Estimated Fees and Expenses
(b) Financial Statements
1-a Balance Sheet of OSP
1-b Statement of Income for OSP
2-a Balance Sheet of OSP II
2-b Statement of Income for OSP II
SIGNATURES
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, each of the undersigned has duly caused
this Amendment No. 1 to Form U-1 Application/Declaration to be
signed on their behalf by the undersigned officers thereunto
duly authorized as of this __ day of June, 1994.
Ocean State Power
By JMC Ocean State Corporation, a
general partner
By: /s/Carlos A. Riva
Name: Carlos A. Riva
Title: President
Ocean State Power II
By JMC Ocean State Corporation,
a general partner
Dated: June 14, 1994 By: /s/Carlos A. Riva
Name: Carlos A. Riva
Title: President
DRAFT
5/20/94
$15,000,000
SECURED CREDIT AGREEMENT
Dated as of May _, 1994
Among
OCEAN STATE POWER,
OCEAN STATE POWER II
and
THE BANK OF NEW YORK
TABLE OF CONTENTS
Page
1
CREDIT FACILITY........................ 1
1.01. Commitment to Lend..................................... 1
1.0 2. Manner of Borrowing.................................... 1
1.03. Interest............................................... 2
(a) Rates.............................................. 2
(b) Payment............................................ 2
(c) Conversion and continuation........................ 2
(d) Maximum Interest Rate.............................. 3
1.04. Repayment.............................................. 3
1.05. Prepayments............................................ 3
1.06. Limitation on Types of Loans........................... 4
1.07. Reduction of Commitment................................ 4
1.08. Fees................................................... 4
1.09. Computation of Interest and Fees....................... 4
1.10. Evidence of Indebtedness............................... 4
1.11. Payments by the Revolver Borrowers..................... 5
(a) Time, Place and Manner............................. 5
(b) No Reductions...................................... 5
(c) Authorization to Charge Account.................... 5
(d) Extension of Payment Dates......................... 5
1.12. Taxes.................................................. 5
(a) Taxes Payable by the Revolver Borrower............. 5
(b) Taxes Payable by the Bank.......................... 6
2
CONDITIONS TO LOANS...................... 6
2.01. Conditions to Initial Loan............................. 6
2.02. Conditions to Each Loan................................ 8
3
CERTAIN REPRESENTATIONS AND WARRANTIES........... 8
3.01. Partnership Existence.................................. 9
3.02. Partnership Power and Authorization, Etc............... 9
3.03. No Legal Bar; No Conflict.............................. 9
3.04. Financial Statements, Etc.............................. 9
3.05. Taxes.................................................. 10
3.06. Litigation, Etc. ...................................... 10
3.07. Legal Compliance....................................... 10
3.08. Employee Retirement Income Security Act of 1974........ 10
3.09. Disclosure............................................. 10
3.10. Consents and Permits................................... 11
3.11. Indebtedness and Liens; No Defaults.................... 11
3.12. Investment Company Act................................. 12
3.13. Public Utility Holding Company Act;
Federal Power Act; Rhode Island General Laws........... 12
3.14. Title.................................................. 12
3.15. Environmental Compliance............................... 12
3.16. Single Purpose Entity.................................. 13
3.17. Ownership of Partnership Interests, Etc................ 13
3.18. Compliance with Federal Reserve Board Regulations...... 13
3.19. Foreign Assets Control Regulations..................... 14
3.20. Power Sale Agreements.................................. 14
3.21. Undisclosed Liabilities................................ 14
3.22. Intellectual Property.................................. 14
3.23. Utilities.............................................. 15
3.24. Facility Contracts..................................... 15
4
CERTAIN COVENANTS...................... 15
4.01. Partnership Existence................................. 15
4.02. Obligations and Taxes................................. 15
4.03. Financial Statements and Reports...................... 16
4.04. Maintenance and Operation of Facility Properties..... 17
4.05. Insurance............................................. 18
4.06. Compliance with Laws.................................. 18
4.07. Records; Inspection................................... 18
4.08. Governmental Permits.................................. 18
4.09. Compliance with Contracts............................. 19
4.10. Continuance in Present Business....................... 19
4.11. Maintenance of Title.................................. 19
4.12. Filings............................................... 19
4.13. Indebtedness.......................................... 19
4.14. Liens................................................. 19
4.15. Guarantees............................................ 20
4.16. Sales................................................. 20
4.17. Restricted Payments................................... 20
4.18. Hazardous Materials................................... 20
4.19. Investments........................................... 20
4.20. Consolidation or Merger............................... 21
4.21. Transactions with Affiliates.......................... 21
4.22. Business.............................................. 21
4.23. ERISA................................................. 21
5
DEFAULT........................... 22
5.01. Events of Default; Acceleration....................... 22
5.02. Other Remedies........................................ 25
6
ADDITIONAL CREDIT FACILITY PROVISIONS.......... 26
6.01. Mandatory Suspension and conversion of Fixed
Rate Loans............................................ 26
6.02. Regulatory Changes.................................... 27
6.03. Capital Requirements.................................. 27
6.04. Funding Losses........................................ 28
6.05. Certain Determinations................................ 28
6.06. Change of Lending Office.............................. 28
7
MISCELLANEOUS......................... 29
7.01. Notices and Deliveries................................ 29
(a) Manner of Delivery................................ 29
(b) Addresses......................................... 29
(c) Effectiveness..................................... 31
(d) Reasonable Notice................................. 31
7.02. Expenses; Indemnification............................. 31
7.03. Amounts Payable Due Upon Request for Payment.......... 33
7.04. Remedies of the Essence............................... 33
7.05. Rights Cumulative..................................... 33
7.06. Disclosures........................................... 33
7.07. Amendments; Waivers................................... 33
7.08. Set-Off............................................... 33
7.09. Assignments and Participations........................ 34
(a) Assignments........................................ 34
(b) Participations..................................... 34
7.10. Governing Law......................................... 35
7.11. Judicial Proceedings; Waiver of Jury Trial............ 35
7.12. LIMITATION OF LIABILITY............................... 36
7.13. Severability of Provisions............................ 36
7.14. Counterparts.......................................... 36
7.15. Survival of Obligations............................... 36
7.16. Entire Agreement...................................... 36
7.17. Successors and Assigns................................ 36
8
INTERPRETATION....................... 36
8.01. Defined Terms......................................... 36
8.02. Other Interpretive Provisions......................... 51
8.03. Accounting Matters.................................... 52
8.04. Representations and Warranties........................ 52
8.05. Captions.............................................. 53
8.06. Interpretation of Related Documents................... 53
Annex A........................................................ 3
RESOLUTIONS OF MANAGEMENT COMMITTEE.................... 3
Schedule 1.02 NOTICE OF BORROWING
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05 NOTICE OF PREPAYMENT
Schedule 2.01(a)(v) OPINION OF REVOLVER BORROWER'S
COUNSEL
Schedule 2.01(a)(vi) OFFICERS' CERTIFICATE OF REVOLVER
BORROWER
Schedule 2.01(a)(ix) OFFICERS' CERTIFICATE OF PARTNER
Schedule 3.06 SCHEDULE OF MATERIAL LITIGATION
Schedule 3.10 SCHEDULE OF FACILITY PERMITS
Schedule 3.11 SCHEDULE OF EXISTING INDEBTEDNESS,
LIENS, INVESTMENTS AND GUARANTIES
Schedule 3.15 SCHEDULE OF ENVIRONMENTAL COMPLIANCE
Schedule 3.17 SCHEDULE OF PARTNERSHIP INTERESTS
Schedule 3.24 SCHEDULE OF FACILITY CONTRACTS
Schedule 7.09(a) NOTICE OF ASSIGNMENT
Exhibit A-1 DOMESTIC NOTE
Exhibit A 2 EURODOLLAR NOTE
SECURED CREDIT AGREEMENT
Dated as of May _ , 1994
OCEAN STATE POWER and OCEAN STATE POWER II, each a Rhode Island
general partnership, and THE BANK OF NEW YORK agree as follows (with certain
terms used herein being defined in Article 8):
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend. Upon the terms and subject to the
conditions of this Agreement, the Bank agrees to make, from time to time during
the period from and including the Closing Date through but not including the
Termination Date, one or more Loans to each Revolver Borrower in an aggregate
unpaid principal amount for both Revolver Borrowers not exceeding at any time
the Commitment at such time. Subject to Section 1.06 and the other terms and
conditions of this Agreement, the Loans made to a Revolver Borrower may, at the
option of such Revolver Borrower, be made as, and from time to time continued
as or converted into, Base Rate, CD Rate or Eurodollar Rate Loans of any
permitted Type, or any combination thereof. The amount of the Commitment on
the Closing Date is $15,000,000.
Section 1.02. Manner of Borrowinq. A Revolver Borrower shall give
the Bank notice (which shall be irrevocable) no later than 12:00 noon (New York
time) on, in the case of Base Rate Loans, the Business Day before the requested
date for the making of such Loans, in the case of CD Rate Loans, the second
Business Day before the requested date for the making of such loans, and, in
the case of Eurodollar Rate Loans, the third Eurodollar Business Day before the
requested date for the making of such Loans. Each such notice shall be in the
form of Schedule 1.02 and shall specify (a) the requested date for the
making of the requested Loans, which shall be, in the case of Domestic Rate
Loans, a Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar
Business Day, (b) the Type or Types of Loans requested and (c) the amount of
each such Type of Loan, the aggregate of which amounts for all Types of Loans
requested shall be not less than the lesser of (i) $300,000 and any integral
multiple of $100,000 and (ii) the amount of the unused Commitment. Each Loan
so requested shall be disbursed by the Bank on the requested date therefor in
Dollars in funds immediately available to the applicable Revolver Borrower by
credit to an account of such Revolver Borrower at the Bank's office or in such
other manner as may have been specified in the applicable notice and as shall
be acceptable to the Bank.
Section 1.03. Interest. (a) Rates. Each Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to (i) so
long as it is a Base Rate Loan, the Base Rate as in effect from time to time,
(ii) so long as it is a CD Rate Loan, the applicable Adjusted CD Rate plus the
applicable CD Rate margin and (iii) so long as it is a Eurodollar Rate Loan,
the applicable Adjusted Eurodollar Rate plus the applicable Eurodollar Rate
Margin. Each other amount due and payable under the Loan Documents shall, to
the maximum extent permitted by Applicable Law, bear interest at a rate per
annum equal to the Base Rate as in effect from time to time. Each Loan
(whether or not due) and, to the maximum extent permitted by Applicable Law,
each other amount due and payable under the Loan Documents shall bear interest
from the occurrence and during the continuation of a Default at a rate per
annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable, (i) in the case of Base Rate
Loans, on each Interest Payment Date, (ii) in the case of CD and
Eurodollar Rate Loans, on the last day of each applicable
Interest Period (and, in the case of a CD or Eurodollar Rate Loan
having an Interest Period longer than 90 days or three months,
respectively, at intervals of-90 days and three months,
respectively, after the first day of such Interest Period), (iii)
in the case of any Loan, when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or
otherwise) or converted, but only to the extent then accrued on
the amount then so due or converted, and (iv) in the case of all
other amounts due and payable under the Loan Documents, on
demand. Interest at the Post-Default Rate shall be payable an
demand.
(c) Conversion and continuation. (i) All or any part of the principal
amount of Loans of any Type may, on any Business Day, be
converted into any other Type or Types of Loans, except that (A)
Fixed Rate Loans may be converted only on the last day of an
applicable Interest Period and (B) Domestic Rate Loans may be
converted into Eurodollar Rate Loans only on a Eurodollar
Business Day.
(ii) Each Base Rate Loan shall continue as a Base Rate Loan unless
and until such Loan is converted into a Loan of another Type.
Each Fixed Rate Loan of any Type shall continue as a Loan of
such Type until the end of the then current Interest Period
therefor, at which time it shall be automatically converted
into a Base Rate Loan unless the applicable Revolver Borrower
shall have given the Bank notice in accordance with Section
1.03(c)(iv) requesting either that such Loan continue as a
Loan of such Type for another Interest Period or that such
Loan be converted into a Loan of another Type at the end of
such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), during a Default, the Bank may
notify the Revolver Borrowers that Loans may only be
converted into or continued as Loans of certain specified
Types and, thereafter, until no Default shall continue to
exist, Loans may not be converted into or continued as Loans
of any Type other than one or more of such specified Types.
(iv) A Revolver Borrower shall give the Bank notice (which shall
be irrevocable) of each conversion of a Loan or continuation
of a Fixed Rate Loan no later than 12:00 noon (New York
time) on, in the case of a conversion into or a continuation
of a Domestic Rate Loan, the Business Day, and, in the case
of a conversion into or continuation of a Eurodollar Rate
Loan, the third Eurodollar Business Day, before the
requested date of such conversion or continuation. Each
notice of conversion or continuation shall be in the form of
Schedule 1.03(c)(iv) and shall specify (A) the requested
date of such conversion or continuation, (B) the amount and
Type and, in the case of Fixed Rate Loans, the last day of
the applicable Interest Period of each Loan to be converted
or continued and (C) the amount and Type or Types of Loans
into which such Loans are to be converted or as which such
Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan Documents
shall require either Revolver Borrower at any time to pay
interest at a rate exceeding the Maximum Permissible Rate. If
interest payable by a Revolver Borrower on any date would exceed
the maximum amount permitted by the Maximum Permissible Rate,
such interest payment shall automatically be reduced to such
maximum permitted amount, and interest for any subsequent period,
to the extent less than the maximum amount permitted for such
period by the Maximum Permissible Rate, shall be increased by the
unpaid amount of such reduction. Any interest actually received
for any period in excess of such maximum amount permitted for
such period shall be deemed to have been applied as a prepayment
of the Loans.
Section 1.04. Repayment. The Loans shall mature and
become due and payable, and shall be repaid by the Revolver
Borrowers, in full on the Termination Date.
Section 1.05. Prepayments. The Revolver Borrowers
may, at any time and from time to time, prepay the Loans in
whole or in part, without premium or penalty (but subject to
Section 6.04), except that any partial prepayment shall be in an
aggregate principal amount of at least $100,000 and any integral
multiple of $100,000. A Revolver Borrower shall give the Bank
notice of each prepayment no later than 12:00 noon (New York
time) on, in the case of a prepayment of Domestic Rate Loans,
the Business Day, and, in the case of a prepayment of Eurodollar
Rate Loans, the third Eurodollar Business Day, before the date
of such prepayment. Each such notice of prepayment shall be in
the form of Schedule 1.05 and shall specify (i) the date such
prepayment
is to be made and (ii) the amount and Type and, in the case of
Fixed Rate Loans, the last day of the applicable Interest Period
of each Loan to be prepaid. Amounts to be prepaid shall
irrevocably be due and payable on the date specified in the
applicable notice of prepayment, together with interest thereon
as provided in Section 1.03(b).
Section 1.06. Limitation on Types of Loans.
Notwithstanding anything to the contrary contained in this
Agreement, the Revolver Borrowers shall borrow, prepay, convert
and continue Loans in a manner such that (a) there shall not be,
at any one time, more than ten Interest Periods in effect with
respect to Fixed Rate Loans of all Types and (b) no payment of a
Fixed Rate Loan will have to be made prior to the last day of an
applicable Interest Period in order to repay the Loans in the
amounts and (subject to Section 1.11(d)) on the date specified
in Section 1.04.
Section 1.07. Reduction of Commitment. The Revolver
Borrowers may reduce the Commitment by giving the Bank notice
(which shall be irrevocable) thereof no later than 12:00 noon
(New York time) on the fifth Business Day before the requested
date of such reduction. Partial reductions of the Commitment
shall be in the aggregate amount of $500,000 or integral
multiples of $500,000 in excess thereof.
Section 1.08. Fees. The Revolver Borrowers shall pay
to the Bank a commitment fee on the daily unused amount of the
Commitment for each day from and including the Closing Date
through but not including the Termination Date at a rate per
annum of 0.15%, payable on successive Interest Payment Dates, on
the Termination Date and on the date of any reduction of the
Commitment (to the extent accrued and unpaid on the amount of
the reduction).
Section 1.09. Computation of Interest and Fees.
Interest calculated on the basis of the Adjusted CD Rate or the
Adjusted Eurodollar Rate and the commitment fee shall be
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed. Interest calculated on the basis
of the Base Rate shall be computed on the basis of a year of 365
or 366 days, as applicable, and paid for the actual number of
days elapsed. Interest for any period shall be calculated from
and including the first day thereof to but excluding the last
day thereof.
Section 1.10. Evidence of Indebtedness. The Loans
and the Revolver Borrowers' obligation to repay the Loans with
interest in accordance with the terms of this Agreement shall be
evidenced by this Agreement, the records of the Bank and, in the
case of Domestic Rate Loans, a single Domestic Note of the
Revolver Borrowers and, in the case of Eurodollar Rate Loans, a
single Eurodollar Note of the Revolver Borrowers. The records
of the Bank shall be prima facie evidence of the Loans and
accrued interest thereon and of all payments made in respect
thereof.
Section 1.11. Payments by the Revolver Borrowers. (a)
Time, Place and Manner. All payments due to the Bank under the
Loan Documents shall be made to the Bank at the Bank's Office or
to such other Person or at such other address as the Bank may
designate by notice to the Revolver Borrowers. All such
payments shall be made for the account of, in the case of
payments in respect of Eurodollar Rate Loans, the Eurodollar
Lending Office and, in the case of all other payments, the
Domestic Lending Office. A payment shall not be deemed to have
been made on any day unless such payment has been received by
the required Person, at the required place of payment, in
Dollars in funds immediately available to such Person at such
place, on such day.
(b) No Reductions. All payments due to the Bank under
the Loan Documents, and all other terms, conditions, covenants
and agreements to be observed and performed by the Revolver
Borrowers thereunder, shall be made, observed or performed by
the Revolver Borrowers without any reduction or deduction
whatsoever, including any reduction or deduction for any
set-off, recoupment, counterclaim (whether sounding in tort,
contract or otherwise) or Tax, except for any withholding or
deduction for Taxes required to be withheld or deducted under
Applicable Law.
(c) Authorization to Charge Accounts. Each Revolver
Borrower hereby authorizes the Bank, if and to the extent any
amount payable by the Revolver Borrowers or either of them under
the Loan Documents is not otherwise paid when due, to charge
such amount against any or all of the accounts of such Revolver
Borrower with the Bank or any of its Affiliates (whether
maintained at a branch or office located within or without the
United States), other than the Site Restoration Funds, the
Tennessee Security Accounts and, in each case, any successor or
replacement accounts, with the Revolver Borrowers remaining
jointly and severally liable for any deficiency. The Bank shall
promptly provide each Revolver Borrower with notice of any such
charge.
(d) Extension of Payment Dates. Whenever any payment
to the Bank under the Loan Documents would otherwise be due
(except by reason of acceleration) on a day that is not a
Business Day, or, in the case of payments of the principal of
Eurodollar Rate Loans, a Eurodollar Business Day, such payment
shall instead be due on the next succeeding Business or
Eurodollar Business Day, as the case may be, unless, in the case
of a payment of the principal of a Eurodollar Rate Loan, such
extension would cause payment to be due in the next succeeding
calendar month, in which case such due date shall be advanced to
the next preceding Eurodollar Business Day. If the date any
payment under the Loan Documents is due is extended (whether by
operation of any Loan Document, Applicable Law or otherwise),
such payment shall bear interest for such extended time at the
rate of interest applicable hereunder.
Section 1.12. Taxes. (a) Taxes Payable by the
Revolver Borrower. If any Tax is required to be withheld or
deducted from, or is otherwise payable by the Revolver Borrowers
or either of them in connection with, any payment to the Bank
under the Loan Documents, the Revolver Borrowers shall pay to
the Bank such additional amounts as may be necessary so that the
net amount received by the Bank with respect to such payment,
after withholding or deducting all Taxes required to be withheld
or deducted, is equal to the full amount payable under the Loan
Documents.
(b) Taxes Payable by the Bank. The Revolver Borrowers
shall, promptly upon request by the Bank for the payment
thereof, pay to the Bank (i) all Taxes (other than Bank Taxes)
payable by the Bank with respect to any payment due to the Bank
under the Loan Documents and (ii) all Taxes (including Bank
Taxes) payable by the Bank as a result of payments made by the
Revolver Borrowers or either of them (whether made to a taxing
authority or to the Bank) pursuant to Section 1.12(a) or (b).
Section 1.13. Joint and Several Liability of Revolver
Borrowers; No Liability of Partners. (a) The Revolver Borrowers
shall be jointly and severally liable for all of the obligations
of the Revolver Borrowers hereunder, regardless of which
Revolver Borrower requested Loans or to which Revolver Borrower
Loans were made by the Bank, or any other circumstances.
(b) No Partner or other Person (or any officer,
employee, servant, controlling Person (other than the Revolver
Borrowers), executive, director, agent, authorized
representative or affiliate of such person (herein referred to
as "Operatives")) shall be personally liable for payments due
under the Loan Documents or for the performance of any
obligation thereunder, or breach of any representation or
warranty made by any Revolver Borrower. The sole recourse of
the Bank for satisfaction of the obligations of the Revolver
Borrowers under the Loan Documents shall be against the Revolver
Borrowers and their respective assets (and not against any
assets or property of any such Partner or Person or its
Operatives) and to the liens, security interests and remedies
provided thereunder. In the event that default occurs in
connection with such obligations, no action shall be brought
against any such Partner or Person or its Operatives. In the
event of foreclosure or other sale of disposition of properties,
no judgment for any deficiency upon the obligations thereunder
shall be obtainable by the Bank against any such Partner or
Person or its Operatives.
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loan. The
obligation of the Bank to make the initial Loan is subject to
the following conditions:
(a) the Bank shall have received each of the
following, in form and substance and, in the case of the
materials referred to in subsections (iv) and (viii), certified
in a manner satisfactory to it:
(i) a duly executed copy of this Agreement;
(ii) a Domestic Note and Eurodollar Note, each duly
executed by both Revolver Borrowers;
(iii) a duly executed Supplement to the Guarantor
Security Agreement;
(iv) a true and correct copy of each Power Sale
Agreement;
(v) an opinion of counsel for the Revolver Borrowers,
dated the requested date for the making of such
Loan, substantially in the form of Schedule
2.01(a)(v);
(vi) an Officer's Certificate of each Revolver
Borrower, dated the requested date for the
making of such Loan, as to the accuracy of the
Representations and Warranties, the absence of
Defaults and the validity and enforceability of
each of the Power Sale Agreements, substantially
in the form of Schedule 2.01(a)(vi);
(vii) a copy of search reports as of a recent date
acceptable to the Bank with respect to UCC
financing statements filed against each Revolver
Borrower;
(viii) copies of the general partnership agreement of
each Revolver Borrower and of documents evidencing
all necessary partnership action of each Revolver
Borrower approving such Revolver Borrower's
execution, delivery and performance of the Loan
Documents and the performance of the transactions
contemplated thereby;
(ix) an Officer's Certificate of the general partner of
each Revolver Borrower executing the Agreement on
behalf of such Revolver Borrower, dated the
requested date for the making of such Loan,
substantially in the form of Schedule 2.01(a)(ix),
to which shall be attached copies of the
resolutions referred to in such certificate; and
(X) such additional materials as the Bank may have
requested pursuant to Section 4.03(j);
(b) copies, certified to the Bank's satisfaction to be
true and correct, of each of the Facility Contracts shall have
been made available to the Bank and its special counsel; and
(c) copies, certified to the Bank's satisfaction to
be true and correct, of each of the Refinancing Documents shall
have been made available to the Bank and its special counsel.
Section 2.02. Conditions to Each Loan. The obligation
of the Bank to make each Loan, including the initial Loan, is
subject to the fulfillment of each of the following conditions:
(a) the Bank shall have received a notice of borrowing
with respect to such Loan complying with the requirements of
Section 1.02;
(b) each Loan Document Representation and Warranty
shall be true and correct at and as of the time such Loan is to
be made (except to the extent such Loan Document Representation
and Warranty relates solely to the Closing Date), both with and
without giving effect to such Loan and all other Loans to be
made at such time and to the application of the proceeds
thereof; and
(c) no Default shall have occurred and be continuing
at the time such Loan is to be made or would result from the
making of such Loan and all other Loans to be made at such time
or from the application of the proceeds thereof.
Except to the extent that either Revolver Borrower
shall have disclosed in the notice of borrowing, or in a
subsequent notice given to the Bank prior to 5:00 p.m. (New York
time) on the Business Day before the requested date for the
making of the requested Loans, that a condition specified in
clause (b) or (c) above will not be fulfilled as of the
requested time for the making of such Loans, each Revolver
Borrower shall be deemed to have made a Representation and
Warranty as of the time of the making of such Loans that the
conditions specified in such clauses have been fulfilled as of
such time. No such disclosure by a Revolver Borrower that a
condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time for the making of the
requested Loans shall affect the right of the Bank to not make
the Loans requested to be made by it if, in the Bank's
determination, such condition has not been fulfilled at such
time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into this Agreement and
to make each Loan, each Revolver Borrower represents and
warrants as follows:
Section 3.01. Partnership Existence. Such Revolver Borrower
is a general partnership duly formed and validly existing and in
good standing under the laws of Rhode Island, with all requisite
partnership power to own or hold under lease its assets, to
transact the business in which it is engaged and to execute,
deliver, borrow under and perform in accordance with their
respective terms the Loan Documents to which it is a party, and
such Revolver Borrower is qualified to do business and in good
standing in all states in which it is required to be qualified
where failure to so qualify would have a Materially Adverse
Effect.
Section 3.02. Partnership Power and Authorization, Etc. This
Agreement and each of the other Loan Documents to which it is a
party have been duly authorized by all necessary partnership
action on the part of such Revolver Borrower and all necessary
action on the part of such Revolver Borrower's Management
Committee, and this Agreement and the borrowings hereunder by
such Revolver Borrower and each of the other Loan Documents to
which it is a party constitute legal, valid and binding
obligations of such Revolver Borrower enforceable against it in
accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors'
rights generally and general principles of equity. As of the
Closing Date, the Guarantor Security Agreement has duly created
a valid security interest in the collateral (as defined therein)
in favor of the Collateral Agent for the benefit of the Bank
ratably as a Secured Party (as defined in the Guarantor Security
Agreement) and such security interest is duly perfected as a
first priority security interest subject to the terms and
conditions of the Guarantor Security Agreement.
Section 3.03. No Legal Bar; No Conflict. The execution and
delivery of this Agreement, each of the other Loan Documents to
which it is a party, the borrowings hereunder by such Revolver
Borrower, the consummation of the transactions contemplated
hereby and thereby, and the performance of the provisions hereof
and thereof have not resulted and will not result in any
violation or breach of, any default under or, except as
specifically contemplated hereby, the creation of any Lien in
respect of any of such Revolver Borrower's property pursuant to
or under its partnership agreement or other governing documents,
any Applicable Law or any agreement, document or instrument to
which it is a party or by which it is bound.
Section 3.04. Financial Statements, Etc. Such Revolver
Borrower has delivered to the Bank its balance sheets as of the
last day of each of the fiscal years ended December 31, 1992
through 1993, and the related statements of income, partners
capital and cash flows for each of such years, certified by
Arthur Andersen, independent public accountants. Such financial
statements have been prepared in accordance with GAAP and
present fairly its financial condition as of the dates of such
balance sheets and the results of its operations for the fiscal
years then ended. Since December 31, 1993 through the Closing
Date, there have been no material adverse changes in such
Revolver Borrower's business, operations, affairs or condition
(financial or other).
Section 3.05. Taxes. Such Revolver Borrower has filed all
tax returns which are required to be filed, and has paid all
taxes as shown on said returns and all other taxes and
assessments that have become due and before they have become
delinquent except for taxes being contested in good faith by
appropriate proceedings and for which reserves have been
established in accordance with GAAP. All tax liabilities are
adequately provided for on such Revolver Borrower's books.
Section 3.06. Litigation, Etc. Except as set forth on
Schedule 3.06, there is no action, proceeding or investigation
pending or, to such Revolver Borrower's knowledge, threatened
against such Revolver Borrower or any of its assets or
properties which questions the validity of this Agreement, or
any of the other Loan Documents or any action taken or to be
taken pursuant hereto or thereto or which otherwise could, if
adversely determined, reasonably be expected to result, either
in any case or in the aggregate, in any Materially Adverse
Effect.
Section 3.07. Legal Compliance. As of the Closing Date, such
Revolver Borrower is not in violation of any term of its
partnership agreement or other governing documents. As of the
Closing Date, such Revolver Borrower is not in violation of any
term of any Applicable Law or any agreement, document or
instrument to which it is a party or by which it is bound,
except where such violation could not reasonably be expected to
result in any Materially Adverse Effect.
Section 3.08. Employee Retirement Income Security Act of
1974. Such Revolver Borrower has not incurred (1) any material
"accumulated funding deficiency" within the meaning of Section
412 of the Code, and Section 302 of ERISA, or (2) any material
liability to the PBGC established under ERISA in connection with
any employee benefit plan established or maintained by it; nor
has such Revolver Borrower had any tax assessed against it by
the Internal Revenue Service for any alleged violation under
Section 4975 of the Code. The transactions contemplated by this
Agreement and each of the other Loan Documents will not
constitute a prohibited transaction (as such term is defined in
Section 4975 of the Code or Section 406 of ERISA) that could
subject such Revolver Borrower to any tax or penalty on
prohibited transactions imposed under said Section 4975 of the
Code or by Section 502(i) or (1) of ERISA.
Section 3.09. Disclosure. Such Revolver Borrower is not
subject to the reporting requirements of Section 13 of the
Securities Exchange Act of 1934, as amended. As of the Closing
Date, none of this Agreement or the information set forth in the
Descriptive Memorandum (other than projections, which are the
subject of and covered by the next succeeding sentence), or in
any other document delivered by a Revolver Borrower to the Bank
in connection with the transactions contemplated hereunder,
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances in
which such statements were made, not misleading. On the Closing
Date, no fact is known to such Revolver Borrower which, if it
had been true at the time, would cause any of the information
set forth in the Descriptive Memorandum to be incorrect or
misleading in any material respect as of the date thereof,
provided that with respect to the projections set forth in the
Descriptive Memorandum, such projections were prepared in good
faith based on reasonable assumptions (which are set forth
therein) consistently applied and, on the Closing Date, no fact
is known to such Revolver Borrower which, if it had been true at
the time, could cause the assumptions on which such projections
are based to be unreasonable or to be inconsistently applied as
of the date thereof. There is no fact known to such Revolver
Borrower which could reasonably be expected now or in the future
(so far as it can now foresee) to result in a Materially Adverse
Effect, except as disclosed in the Descriptive Memorandum.
Section 3.10. Consents and Permits. No Governmental Approval
or any other consent or approval is required for such Revolver
Borrower's execution and delivery of this Agreement or any other
Loan Document or any instrument contemplated hereby or thereby,
for the borrowings by such Revolver Borrower hereunder or for
its performance of any of the terms or conditions hereof or
thereof, except for the Facility Permits. Each Facility Permit
has been obtained, and except as set forth on Schedule 3.10, is
final and in full force and effect, has not been modified in any
way and is not subject to any pending or threatened appeal or
attack by way of direct proceedings or otherwise and the time
within which any such appeal or attack may be brought which
could affect the validity of this Agreement or any of the other
Loan Documents has expired. As of the Closing Date, all terms
and conditions of each Facility Permit required to be satisfied
or performed by such Revolver Borrower prior to such date have
been duly satisfied and performed. True and correct copies of
each of the Facility Permits have been made available to the
Bank and its special counsel. The Facility Permits include,
without limitation, all such authorizations, licenses, permits,
consents, orders, approvals, rights and Governmental Approvals
as are necessary to construct, own and operate the Facility and
to perform the Power Sale Agreements in accordance with their
respective terms.
Section 3.11. Indebtedness and Liens; No Defaults. As of the
Closing Date, Schedule 3.11 sets forth a complete and correct
list of (1) all of such Revolver Borrower's Indebtedness (other
than the Indebtedness incurred hereunder) and any Liens securing
such Indebtedness (other than Liens permitted pursuant to
Section 4.14) and (2) all of such Revolver Borrower's
Investments and Guarantees (other than the Guarantees permitted
pursuant to Section 4.15). As of the Closing Date, such
Revolver Borrower is not in default in respect of any term or
provision of such Indebtedness or under any mortgage, deed of
trust, indenture, loan agreement or other agreement relating
thereto.
Section 3.12. Investment Company Act. Such Revolver Borrower
is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 3.13. Public, Utility Holding Company Act: Federal
Power Act; Rhode Island General Laws. Such Revolver Borrower is
a "public utility company" and a "subsidiary company" of a
"holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended. Such Revolver Borrower
is a "public utility", as such term is defined in the Federal
Power Act, as amended, and in the Rhode Island General Laws.
The Facility Permits include all authorizations, consents,
orders, approvals, declarations, filings and registrations
required under said Acts in connection with such Revolver
Borrower's execution and delivery of this Agreement, and the
other Loan Documents and any instrument contemplated hereby or
thereby for the borrowings by such Revolver Borrower hereunder
and for its performance of the terms and conditions hereof and
thereof. Without limiting the foregoing, the execution,
delivery and performance by such Revolver Borrower of this
Agreement and the other Loan Documents have been approved by all
necessary action of the SEC under the Public Utility Holding
Company Act of 1935, as amended, and of the RIDPUC under the
Rhode Island General Laws, and, accordingly, no appeal of said
approvals or attack thereon or review thereof made after the
consummation of the transactions contemplated hereby would
affect the validity thereof or alter or diminish or void the
obligations of such Revolver Borrower thereunder.
Section 3.14. Title. Such Revolver Borrower has good title
to its properties and assets, and none of such properties and
assets is subject to any Lien except for Liens permitted by this
Agreement. Such ownership or leasehold interests are sufficient
to permit such Revolver Borrower to operate the portion of the
Facility owned by it. Such Revolver Borrower enjoys peaceful
and undisturbed possession under all leases of real property on
which facilities operated by it are situated, and all such
leases are valid and subsisting and are in full force and effect.
Section 3.15 Environmental Compliance. Except as disclosed
in Schedule 3.15, to such Revolver Borrower's knowledge after
due inquiry there has been no generation, treatment, use or
storage on, or disposal, release, spill, escape on or from, the
Facility or any other property owned, occupied or operated by
such Revolver Borrower, its predecessor in interest or any other
person for whose conduct it is responsible, of any industrial,
toxic or hazardous substances or solid or hazardous waste
material or substance ("Hazardous Materials") in violation of
common law, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. SS 9601 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. SS 6901, et
seq.), or any applicable state laws relating to the protection
of human health, safety and the environment or the release or
threatened release of Hazardous Materials, as each may have been
amended, or any regulation under or any interpretations of the
foregoing (collectively, the "Environmental Laws"), and such
Revolver Borrower has not received any notice or made any
discovery, after reasonable inquiry of its employees, of any
violation relating to the Environmental Laws arising out of its
activities or the activities of anyone else on the Facility or
such other property. Except as disclosed in Schedule 3.15, to
such Revolver Borrower's knowledge after due inquiry, there are
and have been no underground storage tanks, vessels or related
equipment or containers, and no electrical transformers or other
equipment containing polychlorinated biphenyls, owned or
operated by such Revolver Borrower or located on the property
included in the Facility, which are subject to the Environmental
Laws or other Federal, state or local laws and regulations. No
item disclosed in Schedule 3.15 will cause or result in any
liability to such Revolver Borrower that could, individually or
in the aggregate, have a Materially Adverse Effect.
Section 3.16. Single Purpose Entity. Such Revolver Borrower
is a single purpose entity organized for the sole purpose of
carrying out the construction, ownership, operation and
maintenance of its portion of the Facility, and other activities
incident thereto and which are described in the Descriptive
Memorandum.
Section 3.17. Ownership of Partnership Interests, Etc. As of
the Closing Date, the Partners are the owners of all outstanding
partnership interests of such Revolver Borrower in the
percentages set forth in Schedule 3.17, and all capital
contributions required to be made in respect of such partnership
interests as of such date have been paid in full. [The
Descriptive Memorandum completely, correctly and separately
identifies, as of the Closing Date, each Power Purchaser, the
Entitlement (as defined in-the respective Power Sales
Agreements) of each Power Purchaser, each Partner and the Voting
Interest (as defined in the Partnership Agreements) of each
Partner.]
Section 3.18. Compliance with Federal Reserve Board
Regulations. No part of the proceeds from the making of the
loans evidenced by the Notes of such Revolver Borrower will be
used, directly or indirectly, for the purpose of buying or
carrying any "margin stock" within the meaning of Regulation G
of the Board of Governors of the Federal Reserve System (12 CFR
207), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve such Revolver
Borrower in a violation of Regulation X of said Board (12 CFR
224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220).
Section 3.19. Foreign Assets Control Regulations. Neither
the making of the Loans to such Revolver Borrower nor such
Revolver Borrower's borrowings or use of the proceeds thereof
will violate the Foreign Assets Control Regulations, the Foreign
Funds Control Regulations, the Cuban Assets Control Regulations,
the Iranian Assets Control Regulations, the South African
Transactions Regulations, the Libyan Sanctions Regulations, the
Iranian Transactions Regulations or the Panamanian Transactions
Regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or the Comprehensive
Anti-Apartheid Act of 1986 (P.L. 99-440) or Executive Orders
12722 and 12724 (55 Fed. Reg. 31803 and 55 Fed. Reg. 33089)
Blocking Iraqi Government Property and Prohibiting Transactions
with Iraq and Executive Orders 12723 and 12725 (55 Fed. Reg.
31805 and 55 Fed. Reg. 33091) Blocking Kuwaiti Government
Property and Prohibiting Transactions with Kuwait.
Section 3.20. Power Sale Agreements. Each Revolver Borrower
has delivered to the Bank and its special counsel complete and
correct copies of the Power Sale Agreements to which it is a
party and all modifications, amendments, waivers and supplements
thereto. As of the Closing Date, each of such Power Sale
Agreements has been duly authorized by all necessary partnership
action on the part of such Revolver Borrower, and all necessary
action on the part of such Revolver Borrower's Management
Committee, is in full force and effect, there is no presently
effective waiver of any obligations thereunder of any party
thereto and neither such Revolver Borrower nor, to the best of
its knowledge, any other party thereto is in default under any
such agreement.
Section 3.21. Undisclosed Liabilities. As of the Closing
Date, such Revolver Borrower has no material Liabilities, other
than Liabilities pursuant to the Facility Contracts and as set
forth in Schedule 3.11 and in the financial statements referred
to in Section 3.04 and the obligations (as defined in the
Guarantor Security Agreement).
Section 3.22. Intellectual Property. Such Revolver Borrower
owns or has the right to use all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights that
are necessary for the operation of its business as presently
contemplated. Nothing has come to the attention of such
Revolver Borrower to the effect that any product, process,
method, substance, part or other material presently contemplated to be
sold by or employed by such Revolver Borrower in connection with
its business may infringe any patent, trademark, service mark,
trade name, copyright, license or other right owned by any other
Person.
Section 3.23. Utilities. On the Closing Date, all utility
services necessary and sufficient for the operation of the
Facility for its intended purposes are, and such Revolver
Borrower reasonably expects that after the Closing Date all
utility services necessary and sufficient for the operation of
the Facility for its intended purposes will be, available at the
boundaries of the Facility Site, including water supply, storm
and sanitary sewer, electric power and telephone facilities when
needed.
Section 3.24. Facility Contracts. The Contracts listed on
Schedule 3.24 constitute on the Closing Date all of the material
Contracts of such Revolver Borrower currently in effect relating
to the construction, ownership or operation of the Facility
(other than the Loan Documents and the Refinancing Documents).
As of the Closing Date, each of the Facility Contracts to which
such Revolver Borrower is a party has been duly executed and
delivered by such Revolver Borrower and constitutes on such date
the legal, valid and binding obligation of such Revolver
Borrower and, to the best of its knowledge, the other parties
thereto, enforceable against such parties in accordance with its
respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally or
principles of equity. True and correct copies of all such
Facility Contracts have been made available to the Bank and its
special counsel. As of the Closing Date, no default or event of
default under any material term or provision of any such
Facility Contract by such Revolver Borrower or, to the best of
its knowledge, any other party thereto, has occurred and is
continuing, and no termination notice in respect of any Facility
Contract has been given by any party thereto.
ARTICLE 4
CERTAIN COVENANTS
From the Closing Date and until the Repayment Date each
Revolver Borrower hereby severally covenants and agrees that:
Section 4.01. Partnership Existence. Such Revolver Borrower
will maintain its existence as a general partnership under the
laws of Rhode Island and its qualification in such jurisdictions
as may be necessary or appropriate to construct, own and operate
the Facility and to borrow hereunder and perform the
transactions contemplated pursuant to this Agreement and the
other Loan Documents.
Section 4.02. Obligations and Taxes. Such Revolver Borrower
will pay promptly all taxes and assessments imposed upon it or
upon its income or profits or any of its property before the
same shall be in default, provided that such Revolver Borrower
shall not be required to pay any such tax or assessment so long
as (1) the validity thereof shall be contested in good faith by
appropriate proceedings diligently pursued and such contest
poses no threat to the Collateral, or other consequence, which
threat or consequence could reasonably be expected to result in
a Materially Adverse Effect and (2) such Revolver Borrower shall
have made such reserves or other appropriate provision, if any,
in respect thereof as shall be required by GAAP.
Section 4.03. Financial Statements and Reports. Such
Revolver Borrower will furnish to the Bank:
(a) as soon as available but in any event within 120 days
after the end of each fiscal year, such Revolver Borrower's
balance sheet as of the end of such fiscal year and the related
statements of operations, partners' capital, and cash flows for
such fiscal year, all in reasonable detail, stating in
comparative form the respective figures as of the end of and for
the previous fiscal year and certified by Arthur Andersen or
other independent public accountants of recognized national
standing selected by such Revolver Borrower, which certification
shall state that said financial statements fairly present the
financial condition and results of operation of such Revolver
Borrower as at the end of, and for, such fiscal year, and who
shall have authorized such Revolver Borrower to deliver such
financial statements and certifications thereof to the Bank
pursuant to this Agreement;
(b) as soon as available but in any event within 60 days after
the end of each quarter of each fiscal year, such Revolver
Borrower's balance sheet as of the last day of such fiscal
quarter and the related statements of operations, or partners'
capital, and cash flows for such quarter and the portion of the
fiscal year then ended, all in reasonable detail, stating in
comparative form the respective figures as of the end of and for
corresponding periods in the previous fiscal year, all of which
shall be certified by an authorized representative of such
Revolver Borrower to be complete and to present fairly, in
accordance with GAAP that are consistent with those followed in
the preparation of the audited financial statements previously
furnished to the Bank, if any, and that have been consistently
applied throughout the period involved, the financial position
of such Revolver Borrower as at the end of such period and the
results of operations and the changes in financial position for
such period, in each case on the basis presented and subject
only to normal year-end auditing adjustments;
(c) together with the financial statements delivered pursuant
to clause (a) above, a written statement of the accountants
certifying as to such financial statements stating that, in
making the examination necessary for their report on its
financial statements for that year, they obtained no knowledge
of any Default or, if such accountants shall have obtained
knowledge of any such event, specifying the same and the nature
and status thereof;
(d) promptly after receipt by such Revolver Borrower, copies
of any report as to material inadequacies in accounting controls
(including reports as to the absence of any such inadequacies)
submitted by independent accountants in connection with any
audit of it;
(e) as soon as available, copies of all regular and periodic
reports (other than routine filings under the Public Utility
Holding Company Act of 1935, as amended) and registration
statements (other than on Form S-8 or a similar form) which it
files with the Securities and Exchange Commission or with any
securities exchange;
(f) as promptly as practicable, but in any event not later
than 5 Business Days after any such Revolver Borrower obtains
knowledge of any Default, an Officers' Certificate describing
such event in reasonable detail, with a statement of any action
with respect thereto taken or proposed;
(g) as promptly as practicable, but in any event not later
than 5 Business Days after the occurrence of any Event of Loss,
or of any event, act or condition that could reasonably be
expected to result in an Event of Loss, notice thereof
describing such occurrence in reasonable detail;
(h) as promptly as practicable, but in any event not later
than 5 Business Days after execution and delivery thereof,
notice of each Facility Contract entered into after the Closing
Date and description thereof;
(i) as promptly as practicable, but in any event not later
than 5 Business Days after receipt thereof, notice of each
Facility Permit received after the Closing Date, the failure to
obtain which could reasonably be expected to result in a
Materially Adverse Effect, and promptly upon acquiring knowledge
thereof, notice of any change in the status of any material
Facility Permit; and
(j) such other Information regarding the operations, business,
affairs and condition (financial and other) of such Revolver
Borrower that the Bank may from time to time reasonably request.
Section 4.04. Maintenance and Operation of Facility
Properties. Such Revolver Borrower will maintain and keep, or
cause to be maintained and kept, its material properties
(including, without limitation, its interest in the Common
Facilities, as defined in the Power Sale Agreements) in good
repair, working order and condition (ordinary wear and tear
excepted), and from time to time make or cause to be made all
needful and proper repairs, renewals, replacements and
improvements to such properties so that the business carried on
in connection therewith may be properly conducted; and at all
times carry on the operations of the Facility in accordance with
good business practices consistent with those used by prudent
operators of similar facilities and in any event (i) in such a
manner as required by the Power Sale Agreements and (ii) in
accordance with "Good Utility Practices" as defined in the O&M
Agreement and in accordance with "Site Procedures" established
pursuant to such agreement, or in accordance with any comparable
standards set forth in any substitute agreement for operation
and maintenance of the Facility.
Section 4.05. Insurance. Such Revolver Borrower will carry
and maintain in full force and effect at all times in
financially sound and reputable insurers with a Best's rating of
A-10 or better (or, as to workers' compensation or similar
insurance, in an insurance fund or by self-insurance authorized
by the jurisdiction in which its operations are carried on)
insurance against such risks as are usually insured against by
companies of established reputation engaged in the same or
similar businesses and similarly situated, including, without
limitation, property insurance in amounts which, when aggregated
with the amounts of such property insurance of the Revolver
Borrower, will at all times be at least equal to the then
outstanding principal amount of the Senior Indebtedness and
which property insurance will name the Collateral Agent, for the
benefit of the Secured Parties, loss payee with respect thereto.
Section 4.06. Compliance with Laws. Such Revolver Borrower
will comply with all Applicable Laws, the noncompliance with
which could reasonably be expected to have a Materially Adverse
Effect.
Section 4.07. Records; Inspection. Such Revolver Borrower
will (1) keep proper books of account in which complete and
accurate entries will be made of all transactions in accordance
with GAAP, and maintain proper records of the construction and
operation of the Facility; and (2) permit the Bank, upon reasonable notice,
to visit and inspect the properties of such Revolver Borrower, examine and
copy its books of record and account, and discuss its affairs,
finances and accounts with its officers and independent public
accountants (whether or not in the presence of either Revolver
Borrower), all at such reasonable times as the Bank may desire.
Section 4.08. Governmental Permits. Such Revolver Borrower
will obtain and maintain in full force and effect such
Governmental Approvals and other consents or approvals as may be
required in connection with its borrowings hereunder and the
performance of its obligations under this Agreement, the Notes,
the other Loan Documents, and the operation of the Facility and
the performance in accordance with their respective terms of the
Power Sale Agreements, where the failure to so obtain and
maintain could reasonably be expected to have a Materially
Adverse Effect.
Section 4.09. Compliance with Contracts. Such Revolver
Borrower will comply with the terms of all Facility Contracts
and all other contracts to which it is a party and timely
perform all of its obligations thereunder, noncompliance with
which could reasonably be expected to have a Materially Adverse
Effect.
Section 4.10. Continuance in Present Business. Such Revolver
Borrower will continue to engage substantially only in the
business described in Section 3.16.
Section 4.11. Maintenance of Title. Such Revolver Borrower
will maintain good and marketable ownership or leasehold
interests, subject only to the Liens permitted under Section
4.14, in its properties and assets including, without
limitation, its interests, if any, in the Facility Site.
Section 4.12. Filings. Such Revolver Borrower will file
within the applicable time period under, and in accordance with,
all Applicable Law (including, without limitation, under the
Public Utility Holding Company Act of 1935, as amended, and
RIDPUC) all certificates, agreements, documents, instruments and
all other filings required in connection with the Loan Documents
and the transactions contemplated thereby, and shall provide the
Bank with evidence of such filings promptly after such filings
are made.
Section 4.13. Indebtedness. Such Revolver Borrower will not,
directly or indirectly, create, incur, assume, guarantee or
otherwise become directly or indirectly liable with respect to
any Indebtedness except:
(a) Indebtedness incurred hereunder; and
(b) other Indebtedness permitted under the Refinancing
Documents, including Indebtedness incurred in connection with
the transactions contemplated thereby.
Section 4.14. Liens. Such Revolver Borrower will not,
directly or indirectly, create, incur, assume or permit to exist
any Lien on or with respect to any of its property or assets
(including any document or instrument in respect of goods or
accounts receivable), whether now owned or hereafter acquired,
or any income or profits, therefrom, except:
(a) Liens in favor of the Collateral Agent for the benefit of
the Secured Parties, including Liens securing the Indebtedness
incurred hereunder;
(b) other Liens permitted under the Refinancing Documents,
including Liens securing Indebtedness incurred in connection
with the transactions contemplated thereby.
Section 4.15. Guarantees. Such Revolver Borrower will not be
or become obligated with respect to any Guarantee, except
Guarantees permitted under the Refinancing Documents.
Section 4.16. Sales. Such Revolver Borrower, will not sell,
lease or otherwise dispose of (including without limitation in a
sale and leaseback transaction) any assets constituting a part
of the Facility except (i) in the ordinary course of business,
(ii) for the transfers contemplated or permitted pursuant to the
Inter-Guarantor Agreements, (iii) for dispositions of obsolete
assets which are simultaneously replaced or other assets that
are no longer necessary or useful for the operation of the
Facility in accordance with prudent industry p practice, (iv) in
connection with the repayment of all of the Senior Indebtedness
and (v) for sale of properties acquired pursuant to the Property
Value Stabilization Plan.
Section 4.17. Restricted Payments. Such Revolver Borrower
will not, directly or indirectly, declare, pay, make or set
apart any sum for any Restricted Payment unless, immediately
after giving effect thereto,
(a) no Default shall have occurred and be continuing; and
(b) the aggregate outstanding principal amount of all
Indebtedness incurred by the Revolver Borrowers would not be
greater than 65% of Total Capitalization.
Such Revolver Borrower will not declare any Restricted Payment
payable other than in cash and not more than 90 days after the
declaration date.
Section 4.18. Hazardous Materials. Such Revolver Borrower
will not permit the Facility Site to be used for the disposal or
storage (other than temporary storage pending use on the
Facility Site or disposal in accordance with Applicable Law) of
any Hazardous Material or permit any Hazardous Material to be
brought onto or stored on the Facility Site other than pending
and during use on the Facility Site or pending disposal, as
below provided or, in any event, permit any Hazardous Material
to be stored or used on the Facility Site or disposed of other
than in accordance with prudent Hazardous Material management
practices and applicable Environmental Law.
Section 4.19. Investments. Such Revolver Borrower will not
make or permit to exist any Investments nor own nor acquire by
purchase or otherwise any equity interest or other beneficial
ownership of any Person, other than
(a) Permitted Investments,
(b) capital stock of OSP Finance Company acquired and held in
compliance with Section 10H of the Note and Guaranty Agreement
and any capital contribution in respect thereof, and
(c) Investments consisting of any Guarantee permitted by
Section 4.15.
Section 4.20. Consolidation or Merger. Such Revolver
Borrower will not, directly or indirectly, consolidate with or
merge with or into any Person, provided that the Revolver
Borrowers may consolidate or merge with or into each other.
Section 4.21. Transactions with Affiliates. Such Revolver
Borrower will not engage in any transaction with an Affiliate
(other than the other Revolver Borrower or OSP Finance Company
and other than with respect to Facility Contracts in existence
on the Closing Date which have been entered into with an
Affiliate) except in the ordinary course of business and on
terms no more favorable to the Affiliate than would have been
obtainable in arm's-length dealing. Without limitation of the
foregoing, transactions meeting the requirements set forth in
the preceding sentence may include contracts with Affiliates
approved by applicable Governmental Bodies providing for the
recovery by such Affiliate of no more than the cost to such
Affiliate of providing services in such transaction or the net
book value of any asset acquired from such Affiliate in such
transaction.
Section 4.22. Business. Such Revolver Borrower will not (1)
engage in any business other than the businesses conducted or
proposed to be conducted as of the date of this Agreement, as
described in the Descriptive Memorandum, which, in any event,
shall consist solely of the operation and maintenance of the
Facility and matters incidental thereto (including, without
limitation, gas remarketing activities) and (2) enter into any
agreements or understandings not related to the conduct of such
business.
Section 4.23. ERISA. Such Revolver Borrower will not permit
any "employee pension benefit plan" (as defined in section 3 of
ERISA) maintained by it or to which it makes contributions to
(1) engage in any "prohibited transaction" (as defined in
Section 4975 of the Code), (2) incur any "accumulated funding
deficiency" (as defined in Section 302 of ERISA) whether or not
waived, or (3) terminate in a manner which could result in the
imposition of a lien or encumbrance on its assets pursuant to
Section 4068 of ERISA.
ARTICLE 5
DEFAULT
Section 5.01. Events of Default: Acceleration. If any of
the following events ("Events of Default") shall occur and be
continuing (for any reason whatsoever and whether it shall be
voluntary or involuntary or occur or be effected by operation of
law or otherwise):
(a) default shall be made in the due and punctual payment of
any principal of or premium on any Loan when due and payable,
whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; or
(b) default shall be made in the due and punctual payment of
interest on any Loan when due and payable, and such default
shall continue for a period of 10 days; or
(c) the aggregate Power Sale Revenues under Defaulted Power
Sale Agreements (as herein defined) shall at any time exceed 6%
of the aggregate Power Sale Revenues under all Power Sale
Agreements; provided, that such condition shall not constitute
an "Event of Default" if prior to the Collateral Agent's taking
any remedial action contemplated by this Section 5.01 as a
consequence thereof any of the following shall occur:
(i) the Entitlement (as defined in the Power Sale
Agreements) of one or more Power Purchasers under Defaulted
Power Sale Agreements has been completely allocated to and
unconditionally assumed by other Power Purchasers not in
default, in accordance with the terms of the Power Sale
Agreements, so that the percentage of aggregate Power Sale
Revenues under any remaining Defaulted Power Sale Agreements is
6% or less;
(ii) the affected Revolver Borrower or Revolver Borrowers
shall enter into one or more new power sale agreements with
purchasers having an investment grade credit rating of at least
BBB- from S&P or an equivalent rating from any other nationally
recognized rating agency (each, a "Substitute Power Sale
Agreement") so that, after giving effect to such Substitute
Power Sale Agreement(s), the percentage of aggregate Power Sale
Revenues under any remaining Defaulted Power Sale Agreements is
6% or less (provided, that in order to satisfy the requirements
of this clause (b), each Substitute Power Sale Agreement shall
have terms (including but not limited to the recovery of such
Revolver Borrower's debt servicing costs) no less favorable to
the affected Revolver Borrower than the Defaulted Power Sale
Agreement it replaces and shall have a remaining term not less
than the original term of such Defaulted Power Sale Agreement);
or
(iii) the curing (by the defaulting Power Purchaser) of all
payment defaults under one or more Defaulted Power Sale
Agreements so that the percentage of aggregate Power Sale
Revenues under any remaining Defaulted Power Sale Agreements is
6% or less.
As used herein, "Defaulted Power Sale Agreement" means any
Power Sale Agreement (a) which has been terminated or repudiated
by the Power Purchaser party thereto (other than any such
termination pursuant to which such Power Purchaser has paid the
"Termination Sum" (as such term is defined in such Power Sale
Agreement) and the prepayment of the Senior Indebtedness as a
result of the payment of such "Termination Sum" has been made in
accordance with Section 6B(4) of the Note and Guaranty
Agreement), or rejected by such Power Purchaser in a bankruptcy
proceeding to which it is subject, or (b) as to which the Power
Purchaser party thereto is in default (after giving effect to
any applicable grace periods set forth in such Power Sale
Agreement, or where no such grace period is specified, 30 days)
with respect to payment of undisputed capacity, or energy
charges.
(d) default shall be made by either Revolver Borrower in the
performance or observance of any covenant, agreement or
condition contained in Sections 4.13 through 4.17, inclusive, or
in Sections 4.19 through 4.23, inclusive; or
(e) default shall be made by either Revolver Borrower in the
performance or observance of any other covenant, agreement or
condition in this Agreement (other than the covenants contained
in Sections 4.03 and 4.05) or any other Loan Document, and such
default shall continue for a period of 90 days after the same
shall have become first known to such Revolver Borrower; or
(f) any representation or warranty made by either Revolver
Borrower in this Agreement, any other Loan Document or any other
document, certificate, financial or other written statement
furnished pursuant hereto or thereto, shall prove to have been
untrue in any material respect at the time when made; or
(g) any Indebtedness of either Revolver Borrower (other than
Indebtedness incurred hereunder) which is outstanding in an
aggregate principal amount of at least $1,000,000 shall as a
consequence of a default become or be declared to be due and
payable prior to its stated maturity; or
(h) either Revolver Borrower shall (i) be generally not paying
its debts as they become due, (ii) file, or consent by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, (iii) make an
assignment for the benefit of its creditors, (iv) consent to the
appointment of a custodian, receiver, trustee or other officer
with similar powers of itself or of any substantial part of its
property, (v) be adjudicated insolvent or be liquidated, or (vi)
take corporate action for the purpose of any of the foregoing,
(i) (i) a court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent by
a Revolver Borrower, a custodian, receiver, trustee or other
officer with similar powers with respect to such Revolver
Borrower or with respect to any substantial part of its
property, or (ii) if an order for relief shall be entered in any
case or proceeding for liquidation or reorganization or
otherwise to take advantage of any bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of such Revolver Borrower or (iii) if any petition
of any such relief shall be filed against such Revolver Borrower
and such petition shall not be dismissed within 60 days; or
(j) final judgment shall be rendered against either Revolver
Borrower for the payment of money in excess of $1,000,000 and
such judgment shall not be discharged or execution thereon
stayed pending appeal, within 60 days after entry thereof, or,
in the event of such a stay, such judgment shall not be
discharged within 60 days after such stay expires; or
(k) either Revolver Borrower shall fail to provide a notice of
Default pursuant to Section 4.03; or
(1) the Collateral Agent shall cease to have a valid,
perfected first-priority security interest in the Collateral as
then constituted; or
(m) either Revolver Borrower shall fail to maintain or cause
to be maintained in full force and effect insurance as required
by Section 4.05; or
(n) an Abandonment shall have occurred; then (i) upon the
occurrence of any Event of Default described in clause (h) or
(i) above the unpaid principal amount of and the accrued
interest on all Loans shall automatically become immediately due
and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly
waived by the Revolver Borrowers, or (ii) upon the occurrence of
any Event of Default other than any Event of Default described
in clause (h) or (i) above the Bank may, by written notice to
the Revolver Borrowers, declare the unpaid principal amount of
the Loans to be, and the same shall forthwith become, due and
payable, together with accrued interest thereon which shall be
deemed matured, and, any amounts payable pursuant to Section
6.04.
Section 5.02. Other Remedies. If any Default shall have
occurred and be continuing, the Bank may proceed to protect and
enforce its rights under the Loan Documents by exercising such
remedies as are available to such Bank in respect thereof under
applicable law, either by suit in equity or by action at law, or
both, whether for specific performance of any agreement
contained in this Agreement or the Guarantor Security Agreement
or in aid of the exercise of any power granted in this Agreement
or the Guarantor Security Agreement. No remedy is intended to
be exclusive and each remedy shall be cumulative. The Bank
acknowledges that all rights and remedies with respect to the
Collateral (including upon acceleration of the Loans) shall be
subject to the terms and conditions of the Guarantor Security
Agreement and the interests of the Bank as a Secured Party
thereunder.
ARTICLE 6
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 6.01. Mandatory Suspension and Conversion of Fixed
Rate Loans. The Bank's obligations to make, continue or convert
into Fixed Rate Loans of any Type shall be suspended, all
outstanding Loans of that Type shall be converted on the last
day of their applicable Interest Periods (or, if earlier, in the
case of clause (b) below, on the last day the Bank may lawfully
continue to maintain Loans of that Type or, in the case of
clause (c) below, on the day determined by the Bank to be the
last Business Day before the effective date of the applicable
restriction) into, and all pending requests for the making or
continuation of or conversion into Loans of such Type shall be
deemed requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Fixed Rate Loan of that Type for any Interest Period, the Bank
determines that for any reason appropriate quotations are not
available to it (including, in the case of the Eurodollar Rate,
quotations in the interbank market selected by it for deposits
with it) for purposes of determining the CD Rate or the
Eurodollar Rate, as the case may be, for such Interest Period or
that such rate would not accurately reflect the cost to the
Bank of making, continuing or converting into a Fixed Rate Loan
of such Type for such Interest Period;
(b) at any time the Bank determines that any Regulatory Change
makes it unlawful or impracticable for the Bank or the
applicable Lending Office to make, continue or convert into any
Fixed Rate Loan of that Type, or to comply with its obligations
hereunder in respect thereof; or
(c) the Bank determines that, by reason of any Regulatory
Change, the Bank or the applicable Lending Office is restricted,
directly or indirectly, in the amount that it may hold of (i) a
category of liabilities that includes deposits by reference to
which, or on the basis of which, the interest rate applicable to
Fixed Rate Loans of that Type is directly or indirectly
determined or (ii) the category of assets that includes Fixed
Rate Loans of that Type.
The Bank shall promptly notify the Revolver Borrowers of any
circumstance that would make the provisions of this Section 6.01
applicable, but the failure to give any such notice shall not
affect the Bank's rights hereunder.
Section 6.02. Regulatory Changes. If in the determination of
the Bank (a) any Regulatory Change shall directly or indirectly
(i) reduce the amount of any sum received or receivable by the
Bank with respect to any Loan or the return to be earned by the
Bank on any Loan, (ii) impose a cost on the Bank or any
Affiliate of the Bank that is attributable to the making or
maintaining of, or the Bank's commitment to make, any Loan,
(iii) require the Bank or any Affiliate of the Bank to make any
payment on or calculated by reference to the gross amount of any
amount received by the Bank under any Loan Document or (iv)
reduce, or have the effect of reducing, the rate of return on
any capital of the Bank or any Affiliate of the Bank that the
Bank or such Affiliate is required to maintain on account of any
Loan or the Bank's commitment to make any Loan and (b) such
reduction, increased cost or payment shall not be fully
compensated for by an adjustment in the applicable rates of
interest payable under the Loan Documents, then the Revolver
Borrowers shall pay to the Bank such additional amounts as the
Bank determines will, together with any adjustment in the
applicable rates of interest payable hereunder, fully compensate
for such reduction, increased cost or payment. Such additional
amounts shall be payable, in the case of those applicable to
prior periods, within 15 days after request by the Bank for such
payment and, in the case of those applicable to future periods,
on the dates specified, or determined in accordance with a
method specified, by the Bank. The Bank will promptly notify
the affected Revolver Borrower of any determination made by it
referred to in clauses (a) and (b) above, but the failure to
give such notice shall not affect the Bank's right to
compensation.
Section 6.03. Capital Requirements. If, in the determination
of the Bank, the Bank or any Affiliate of the Bank is required,
under Applicable Law, interpretations, directives, requests and
guidelines (whether or not having the force of law), to maintain
capital on account of any Loan or the Bank's commitment to make
any Loan, then, upon request by the Bank, the Revolver Borrowers
shall from time to time thereafter pay to the Bank such
additional amounts as the Bank determines will fully compensate
f or any. reduction in the rate of return on the capital that
the Bank or such Affiliate is so required to maintain on account
of such Loan or commitment suffered as a result of such capital
requirement. Such additional amounts shall be payable, in the
case of those applicable to prior periods, within 15 days after
request by the Bank for such payment and, in the case of those
relating to future periods, on the dates specified, or
determined in accordance with a method specified, by the Bank.
Section 6.04. Funding Losses. The Revolver Borrowers shall
pay to the Bank, upon request, such amount or amounts as the
Bank determines are necessary to compensate it for any loss,
cost or expense incurred by it as a result of (a) any payment,
prepayment or conversion of a Fixed Rate Loan on a date other
than the last day of an Interest Period for such Fixed Rate Loan
or (b) a Fixed Rate Loan for any reason (other than the failure
of the Bank to comply with the terms hereof) not being made or
converted, or any payment of principal thereof or interest
thereon not being made, on the date therefor determined in
accordance with the applicable provisions of this Agreement. At
the election of the Bank, and without limiting the generality of
the foregoing, but without duplication, such compensation on
account of losses may include an amount equal to the excess of
(i) the interest that would have been received from the Revolver
Borrower(s) under this Agreement on any amounts to be
re-employed during an Interest Period or its remaining portion
over (ii) the interest component of the return that the Bank
determines it could have obtained had it placed such amount on
deposit in the interbank Dollar market selected by it for a
period equal to such Interest Period or its remaining portion.
Section 6.05. Certain Determinations. In making the
determinations contemplated by Sections 6.01, 6.02, 6.03 and
6.04, the Bank may make such estimates, assumptions, allocations
and the like that the Bank in good faith determines to be
appropriate, and the Bank's selection thereof in accordance with
this Section 6.05, and the determinations made by the Bank on
the basis thereof, shall be final, binding and conclusive upon
the Revolver Borrowers, except, in the case of such
determinations, for manifest errors in computation or
transmission. The Bank shall furnish to the Revolver Borrowers
upon request a certificate outlining in reasonable detail the
computation of any amounts claimed by it under Sections 6.02,
6.03 and 6.04 and the assumptions underlying such computations.
Section 6.06. Change of Lending Office. If an event occurs
with respect to a Lending Office that obligates the Revolver
Borrowers or either of them to pay any amount under Section
1.12, makes operable the provisions of clause (b) or (c) of
Section 6.01 or entitles the Bank to make a claim under Section
6.02 or 6.03, the Bank shall, prior to invoking such provisions,
use reasonable efforts to designate another Lending office or
offices the designation of which will reduce the amount such
Revolver Borrower(s) are so obligated to pay, eliminate such
operability or reduce the amount the Bank is so entitled to
claim, provided that such designation would not, in the sole and
absolute discretion of the Bank, be disadvantageous to the Bank
in any manner or contrary to Bank policy. The Bank may at any
time and from time to time change any Lending Office and shall
give notice of any such change to the Revolver Borrowers.
Except in the case of a change in Lending Offices made at the
request of the Revolver Borrowers, the designation of a new
Lending Office by the Bank shall not obligate either Revolver
Borrower to pay any amount to the Bank under Section 1.12, make
operable the provisions of clause (b) or (c) of Section 6.01 or
entitle the Bank to make a claim under Section 6.02 or 6.03 if
such obligation, the operability of such clause or such claim
results solely from such designation and not from a subsequent
Regulatory Change.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Notices and Deliveries. (a) Manner of
Delivery. All notices, communications and materials (including
all Information) to be given or delivered pursuant to the Loan
Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in
writing (which shall include telex and telecopy transmissions).
Notices under Sections 1.02, 1.03(c), 1.05, 1.07 and 5.01 may be
by telephone, promptly, in the case of each notice other than
one under Section 5.01, confirmed in writing. In the event of a
discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed
the effective notice except to the extent that the Bank has
acted in reliance on such telephonic notice.
(b) Addresses. All notices, communications and materials to
be given or delivered pursuant to the Loan Documents shall be
given or delivered at the following respective addresses and
telex, telecopier and telephone numbers and to the attention of
the following individuals or departments:
(i) if to a Revolver Borrower, to it at:
(A) Ocean State Power
P.O. Box 561
Harrisville, Rhode Island 02830
(or, for courier purposes,
1575 Sherman Farm Road
Route 98
Harrisville, Rhode Island 02830)
Telecopier No.: (401) 568-1999
Telephone No.: (401) 568-9550
Attention: General Manager
with a copy to:
J. Makowski Management Corporation
One Bowdoin Square
Boston, Massachusetts 02114
Telecopier No.: (617) 227-2690
Telephone No.: (617) 227-8080
Attention: Mark D. Segel
Senior Associate, Finance
(B) Ocean State Power II
P.O. Box 561
Harrisville, Rhode Island 02830
(or, for courier purposes,
1575 Sherman Farm Road
Route 98
Harrisville, Rhode Island 02830)
Telex No.:
Telecopier No.:
Telephone No.:
Attention: General Manager
with a copy to:
J. Makowski Management Corporation
One Bowdoin Square
Boston, Massachusetts 02114
Telecopier No.: (617) 227-2690
Telephone No.: (617) 227-8080
Attention: Mark D. Segel
Senior Associate, Finance
(ii) if to the Bank, to it at:
The Bank of New York
One Wall Street
New York, New York 10286
Telex No.:
Telecopier No.: (212) 635-7923
Telephone No.: (212) 635-7581
Attention: John W. Hall
Vice President
or at such other address or telex, telecopier or telephone
number or to the attention of such other individual or
department as the party to which such information pertains may
hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(c) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Loan Documents
shall be deemed so given or delivered (A) if sent by registered
or certified mail, postage prepaid, return receipt requested, on
the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United
States post office and a receipt therefor is issued thereby, (B)
if sent by any other means of physical delivery, when such
notice, communication or material is delivered to the
appropriate address as above provided, (C) if sent by telex,
when such notice, communication or material is transmitted to
the appropriate number determined as above provided in this
Section 7.01 and the appropriate answer-back is received, (D) if
sent by telecopier, when such notice, communication or material
is transmitted to the appropriate telecopier number as above
provided and is received at such number and (E) if given by
telephone, when communicated to the individual or any member of
the department specified as the individual or department to
whose attention notices, communications and materials are to be
given or delivered, or, in the case of notice by the Bank to
either Revolver Borrower under Section 5.01 given by telephone
as above provided, if any individual or any member of the
department to whose attention notices, communications and
materials are to be given or delivered is unavailable at the
time, to any other officer or employee of such Revolver
Borrower, except that (x) notices of a change of address, telex,
telecopier or telephone number or individual or department to
whose attention notices, communications and materials are to be
given or delivered shall not be deemed given until received and
(y) notices, communications and materials to be given or
delivered to the Bank pursuant to Sections 1.02, 1.03(c), 1.05
and 1.07 and Article 4 shall not be deemed given or delivered
until received by the officer of the Bank responsible, at the
time, for the administration of the Loan Documents.
(d) Reasonable Notice. Any requirement under Applicable Law
of reasonable notice by the Bank to either Revolver Borrower of
any event in connection with, or in any way related to, the Loan
Documents or the exercise by the Bank of any of its rights
thereunder shall be met if notice of such event is given to such
Revolver Borrower in the manner prescribed above at least 10
days before (A) the date of such event or (B) the date after
which such event will occur.
Section 7.02. Expenses: Indemnification. Whether or not any
Loans are made hereunder, the Revolver Borrowers shall:
(a) pay or reimburse the Bank for all transfer, documentary,
stamp and similar taxes, and all recording and filing fees and
taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan
Documents or the making of the Loans;
(b) pay or reimburse the Bank for all costs and expenses
(including fees and disbursements of legal counsel) reasonably
incurred by the Bank in connection with, arising out of, or in
any way related to (i) the negotiation, preparation, execution
and delivery of (A) the Loan Documents and (B) whether or not
executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the
Loan Documents, (iii) consulting with respect to any matter in
any way arising out of, related to, or connected with, the Loan
Documents, including (A) the protection or preservation of the
Collateral, (B) the protection, preservation, exercise or
enforcement of any of its rights in, under or related to the
Collateral or the Loan Documents or (C) the performance of any
of its obligations under or related to the Loan Documents, (iv)
protecting or preserving the Collateral in accordance with the
terms of the Guarantor Security Agreement or (v) protecting,
preserving, exercising or enforcing any of its rights in, under
or related to the Collateral or the Loan Documents in accordance
with the terms thereof; and
(c) indemnify and hold each Indemnified Person harmless from
and against all losses (including judgments, penalties and
fines) suffered, and pay or reimburse each Indemnified Person
for all costs and expenses (including fees and disbursements of
legal counsel and other experts employed or retained by such
Indemnified Person) reasonably incurred, by such Indemnified
Person in connection with, arising out of, or in any way related
to (i) any Loan Document Related Claim (whether asserted by such
Indemnified Person or the Revolver Borrower or any other
Person), including the prosecution or defense thereof and any
litigation or proceeding with respect thereto (whether or not,
in the case of any such litigation or proceeding, such
Indemnified Person is a party thereto), or (ii) any
investigation, governmental or otherwise, arising out of,
related to, or in any way connected with, the Loan Documents or
the relationships established thereunder, except that the
foregoing indemnity shall not be applicable to any loss suffered
by any Indemnified Person to the extent such loss is determined
by a judgment of a court that is binding on the Revolver
Borrower and such Indemnified Person, final and not subject to
review on appeal, to be the result of acts or omissions on the
part of such Indemnified Person constituting (x) gross
negligence, (y) willful misconduct, or (z) in the case of claims
by a Revolver Borrower against such Indemnified Person, such
Indemnified Person's failure to observe any other standard
applicable to it under any of the other provisions of the Loan
Documents or, but only to the extent not waivable thereunder,
Applicable Law.
Section 7.03. Amounts Payable Due Upon Request for Payment.
All amounts payable by the Revolver Borrowers under Section 7.02
and under the other provisions of the Loan Documents shall,
except as otherwise expressly provided, be immediately due upon
request for the payment thereof.
Section 7.04. Remedies of the Essence. The various rights
and remedies of the Bank under the Loan Documents are of the
essence of those agreements, and the Bank shall be entitled to
obtain a decree requiring specific performance of each such
right and remedy.
Section 7.05. Rights Cumulative. Each of the rights and
remedies of the Bank under the Loan Documents shall be in
addition to all of its other rights and remedies under the Loan
Documents and Applicable Law, and nothing in the Loan Documents
shall be construed as limiting any such rights or remedies.
Section 7.06. Disclosures. The Bank may disclose to, and
exchange and discuss with, any other Person (the Bank and each
such other Person being hereby authorized to do so) any
information concerning the Collateral or either Revolver
Borrower or any of their respective Subsidiaries (whether
received by the Bank or such other Person in connection with or
pursuant to the Loan Documents or otherwise) for the purpose of
(a) complying with Applicable Law, (b) protecting or preserving
the Collateral, (c) protecting, preserving, exercising or
enforcing any of its rights in, under or related to the
Collateral or the Loan Documents, (d) performing any of its
obligations under or related to the Loan Documents or (e)
consulting with respect to any of the foregoing matters.
Section 7.07. Amendments; Waivers. Any term, covenant,
agreement or condition of the Loan Documents may be amended, and
any right under the Loan Documents may be waived, if, but only
if, such amendment or waiver is in writing and is signed by the
Bank and, in the case of an amendment, by the Revolver
Borrowers. Unless otherwise specified in such waiver, a waiver
of any right under the Loan Documents shall be effective only in
the specific instance and for the specific purpose for which
given. No election not to exercise, failure to exercise or
delay in exercising any right, nor any course of dealing or
performance, shall operate as a waiver of any right of the Bank
under the Loan Documents or Applicable Law, 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 of
the Bank under the Loan Documents or Applicable Law.
Section 7.08. Set-Off. The Bank is hereby authorized by each
of the Revolver Borrowers, at any time and from time to time,
without prior notice, during any Event of Default, to set off
against, and to appropriate and apply to the payment of, the
Liabilities of the Revolver Borrowers or either of then under
the Loan Documents (whether matured or unmatured, fixed or
contingent or liquidated or unliquidated) any and all
Liabilities owing by the Bank or any of its Affiliates to the
Revolver Borrowers or either of them (whether payable in Dollars
or any other currency, whether matured or unmatured and, in the
case of Liabilities that are deposits, whether general or
special, time or demand and however evidenced and whether
maintained at a branch or office' located within or without the
United States) other than any amounts held from time to time in
either of the Site Restoration Funds, the Tennessee Security
Accounts or, in each case, any successor or replacement
accounts, as to which the Bank expressly waives such right.
Section 7.09. Assignments and Participations. (a)
Assignments. (i) Neither Revolver Borrower may assign any or
all of its rights and obligations under the Loan Documents
without the prior written consent of the Bank, and no assignment
of any such obligation shall release a Revolver Borrower
therefrom unless the Bank shall have consented to such release
in a writing specifically referring to the obligation from which
such Revolver Borrower is to be released.
(ii) The Bank may from time to time assign all of its rights
and obligations under the Loan Documents to one or more Persons;
provided that, except in the case of the grant of a security
interest to a Federal Reserve Bank (which may be made without
condition or restriction), no such assignment shall be effective
unless the assignment is consented to by the Revolver Borrowers
(unless an Event of Default specified in Section 5.01(h) or (i)
with respect to either Revolver Borrower exists). Upon any
effective assignment, the assignor shall be released from the
obligations so assigned and, in the case of an assignment of all
of its Loans and Commitment, shall cease to be a Bank. In the
event of any effective assignment by a Bank, the Revolver
Borrowers shall, against receipt of the existing Notes of the
assignor Bank, issue new Notes to the assignee Bank
appropriately reflecting such assignment.
(b) Participations. The Bank may from time to time sell or
otherwise grant participations in any or all of its rights and
obligations under the Loan Documents without the consent of
either Revolver Borrower. In the event of any such grant by the
Bank of a participation, the Bank's obligations under the Loan
Documents to the other parties thereto shall remain unchanged,
the Bank shall remain solely responsible for the performance
thereof, and the Revolver Borrowers may continue to deal solely
and directly with the Bank in connection with the Bank's rights
and obligations thereunder. The Bank may not grant to any
holder of a participation the right to require the Bank to take
or omit to take any action under the Loan Documents, except that
the Bank may grant to any such holder the right to require such
holder's consent to (i) reduce the principal of or the rate of
interest on the Loans or the fees payable to the Bank hereunder,
(ii) postpone any date fixed for any payment of principal of or
interest on the Loans or the fees payable to the Bank hereunder,
(iii) permit either of the Revolver Borrowers to assign any of
its obligations under the Loan Documents to any other Person or
(iv) release any Collateral from the Security Interest except as
required or contemplated by the Loan Documents. Each holder of
a participation in any rights under the Loan Documents, if and
to the extent the applicable participation agreement so
provides, shall, with respect to such participation, be entitled
to all of the rights of a Bank as fully as though it were a Bank
under Sections 1.12, 6.02, 6.03, 6.04, 7.02(c) and 7.07 (subject
to any conditions imposed on a Bank hereunder with respect
thereto) and may exercise any and all rights of set-off with
respect to such participation as fully as though the Revolver
Borrowers were directly indebted to the holder of such
participation for Loans in the amount of such participation;
provided, however, that no holder of a participation shall be
entitled to any amounts that would otherwise be payable to it
with respect to its participation under Section 1.12 or 6.02
unless such amounts would have been payable to the Bank that
granted such participation if such participation had not been
granted.
Section 7.10. Governing Law. This Agreement and the Notes
(including matters relating to the Maximum Permissible Rate)
shall be construed in accordance with and governed by the law of
the State of New York (without giving effect to its choice of
law principles).
Section 7.11. Judicial Proceedings; Waiver of Jury Trial.
Any judicial proceeding brought against the Revolver Borrowers
or either of them with respect to any Loan Document Related
Claim may be brought in any state or federal court of competent
jurisdiction sitting in the City of New York, and, by execution
and delivery of this Agreement, each Revolver Borrower (a)
accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby
in connection with any Loan Document Related Claim and (b)
irrevocably waives any objection it may now or hereafter have as
to the venue of any such proceeding brought in such a court or
that such a court is an inconvenient forum. Each Revolver
Borrower hereby waives personal service of process and consents
that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address
specified or determined in accordance with the provisions of
Section 7.01(a)(ii), and service so made shall be deemed
completed on the third Business Day after such service is
deposited in the mail. Nothing herein shall affect the right of
the Bank or any other Indemnified Person to serve process in any
other manner permitted by law or shall limit the right of the
Bank or any other Indemnified Person to bring proceedings
against either Revolver Borrower in the courts of any other
jurisdiction. Any judicial proceeding by either Revolver
Borrower against the Bank involving any Loan Document Related
Claim shall be brought only in a court located in the City and
State of New York. THE REVOLVER BORROWERS AND THE BANK HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE
EACH PARTIES INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
Section 7.12. LIMITATION OF LIABILITY. NEITHER THE BANK NOR
ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY WITH
RESPECT TO, AND EACH REVOLVER BORROWER HEREBY WAIVES, RELEASES
AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH REVOLVER BORROWER IN
CONNECTION WITH ANY LOAN DOCUMENT RELATED CLAIM.
Section 7.13. Severability of Provisions. Any provision of
the Loan Documents that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof or affecting the
validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, each
Revolver Borrower hereby waives any provision of Applicable Law
that renders any provision of the Loan Documents prohibited or
unenforceable in any respect.
Section 7.14. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto were upon the
same instrument.
Section 7.15. Survival of Obligations. Except as otherwise
expressly provided therein, the rights and obligations of the
Revolver Borrowers, the Bank and the other Indemnified Persons
under the Loan Documents shall survive the Repayment Date and
the termination of the Security Interest.
Section 7.16. Entire Agreement. This Agreement and the Loan
Documents embody the entire agreement among the Revolver
Borrowers and the Bank relating to the subject matter hereof and
supersede all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
Section 7.17. Successors and Assigns. All of the provisions
of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
assigns.
ARTICLE 8
INTERPRETATION
Section 8.01. Defined Terms. For the purposes of this
Agreement:
"Abandonment" means, an abandonment of the Facility pursuant
to which the Revolver Borrowers disclaim any operational or
beneficial interest in the Facility.
"Adjusted CD Rate" means, for any Interest Period, a rate per
annum equal to the sum (rounded upward, if necessary, to the
next higher 1/100 of 1%) of (a) the rate obtained by dividing
(i) the CD Rate for such Interest Period by (ii) a percentage
equal to 1 minus the Reserve Requirement in effect from time to
time during such Interest Period Plus (b) the Assessment Rate in
effect from time to time during such Interest Period.
"Adjusted Eurodollar Rate" means, for any Interest Period, a
rate per annum (rounded upward, if necessary, to the next higher
1/16 of 1%) equal to the rate obtained by dividing (a) the
Eurodollar Rate for such Interest Period by (b) a percentage
equal to 1 minus the Reserve Requirement in effect from time to
time during such Interest Period.
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
such first Person; unless otherwise specified, "Affiliate" means
an Affiliate of the Revolver Borrowers or either of them.
"Agreement" means this Agreement, including all schedules,
annexes and exhibits hereto.
"Applicable Law" means, anything in Section 7.10 to the
contrary notwithstanding, (a) all applicable common law and
principles of equity and (b) all applicable provisions of all
(i) constitutions, statutes, rules, regulations and orders of
governmental bodies, (ii) Governmental Approvals and (iii)
orders, decisions, judgments and decrees of all courts (whether
at law or in equity or admiralty) and arbitrators.
"Assessment Rate" means, at any time, the annual rate (rounded
upwards, if necessary, to the next higher 1/100th of 1%) then
estimated by the Bank as the net annual assessment rate that
will be employed in determining the annual assessment payable by
the Bank to the Federal Deposit Insurance Corporation (or any
successor) for insuring domestic Dollar deposits at the Bank.
"Bank" means (a) The Bank of New York and (b) any Person that
has been assigned any or all of the rights or obligations of the
Bank pursuant to Section 7.09(a).
"Bank Tax" means any income, revenue, profit or franchise tax
imposed upon any Bank by any jurisdiction (or political
subdivision thereof) in which the Bank or any of its Lending
Offices is located.
"Bank's Office" means the address of the Bank specified in or
determined in accordance with the provisions of Section
7.01(a)(ii).
"Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate in effect on such day and (b) the
sum of the Federal Funds Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of
the Base Rate.
"Best's" means A.M. Best & Company.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to
close.
"CD Rate" means, for any Interest Period, the prevailing rate
per annum (rounded upward, if necessary, to the next higher
1/100 of 1%) bid at approximately 10:00 a.m. (New York time) (or
as soon thereafter as is practicable) on the first day of such
Interest Period by two or more New York certificate of deposit
dealers of recognized standing selected by the Bank for the
purchase at face value of certificates of deposit of the Bank in
the secondary market in an amount comparable to the principal
amount of the CD Rate Loan to which such Interest Period applies
and with a maturity comparable to such Interest Period.
"CD Rate Loan" means any Loan the interest on which is, or is
to be, as the context may require, computed on the basis of the
Adjusted CD Rate.
"CD Rate Margin" means (a) during the period from the Closing
Date through the third anniversary thereof, 0.50%, (b) during
the period from but not including the third anniversary of the
Closing Date through the fifth anniversary of the Closing Date,
0.5625% and (c) during the period from but not including the
fifth anniversary of the Closing Date through the seventh
anniversary of the Closing Date, 0.75%.
"Closing Date" means the date on which the initial Loan is
made hereunder.
"Code" means the Internal Revenue Code of 1986.
"Collateral" has the meaning specified in Section 3 of the
Guarantor Security Agreement.
"Collateral Agent" means State Street Bank and Trust company
in its capacity as collateral agent under the Guarantor Security
Agreement and any successor appointed pursuant thereto.
"Commitment" means (a) the amount set forth in Section 1.01,
as the same may be reduced from time to time pursuant to Section
1.07, or (b) as the context may require, the obligation of the
Bank to make Loans in an aggregate unpaid principal amount not
exceeding such amount.
"Contract" means (a) any agreement (whether bilateral or
unilateral or executory or non-executory and whether a Person
entitled to rights thereunder is so entitled directly or as a
third-party beneficiary), including an indenture, lease or
license and (b) any deed or other instrument of conveyance.
"Default" means any condition or event that constitutes an
Event of Default or that with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Defaulted Power Sale Agreement" has the meaning stated in
Section 5.01(c).
"Descriptive Memorandum" means the Descriptive Memorandum
dated February, 1994, as supplemented, delivered by the Revolver
Borrowers to the Bank.
"Dollars" and the sign "I'' mean lawful money of the United
States of America.
"Domestic Lending Office" means The Bank of New York, One Wall
Street, New York, New York 10286, or such other branch or office
of the Bank designated by the Bank from time to time as the
branch or office at which Domestic Rate Loans are to be made or
maintained. The Bank may from time to time designate separate
Domestic Lending Offices for its Base Rate Loans and CD Rate
Loans, in which case all references to the Domestic Lending
Office shall be deemed to refer to either or both of such
Offices, as the context may require.
"Domestic Note" means a promissory note in the form of Exhibit A-1.
"Domestic Rate Loan" means any CD Rate Loan or Base Rate Loan.
"Environmental Laws" has the meaning stated in Section 3.15.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the relevant interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in the jurisdiction in which such interbank
market is located.
"Eurodollar Lending Office" means The Bank of New York, One
Wall Street, New York, New York 10286, or such other branch or
office of the Bank designated by the Bank from time to time as
the branch or office at which Eurodollar Rate Loans are to be
made or maintained.
"Eurodollar Note" means a promissory note in the form of Exhibit A-2.
"Eurodollar Rate" means, for any Interest Period, the rate per
annum determined by the Bank to be the rate at which it would
offer or would have offered to place with first-class banks in
the interbank market selected by the Bank deposits in Dollars in
amounts comparable to the Eurodollar Rate Loan to which such
Interest Period applies, for a period equal to such Interest
Period! at the time as of which the Bank makes such
determination.
"Eurodollar Rate Loan" means any Loan the interest on which
is, or is to be, as the context may require, computed on the
basis of the Adjusted Eurodollar Rate.
"Eurodollar Rate Margin" means (a) during the period from the
Closing Date through the third anniversary thereof, 0.375%, (b)
during the period from but not including the third anniversary
of the Closing Date through the fifth anniversary of the Closing
Date, 0.4375% and (c) during the period from but not including
the fifth anniversary of the Closing Date through the seventh
anniversary of the Closing Date, 0.625%.
"Event of Default" means any of the events specified in Section 5.01.
"Event of Loss" means (A) damage to or destruction of all or a
substantial part of the Facility or a constructive or compromise
loss of a substantial part of the Facility based on an insurance
settlement as a result of damage to the Facility or (B) any
taking of all or a substantial part of the Facility by the
exercise of the power of eminent domain.
"Facility" means the electric generating facility located at
Burrillville, Rhode Island, which is comprised of two
approximately 250 megawatt units, owned and operated by the
respective Revolver Borrowers, together with all rights and
interests of the respective Revolver Borrowers therein or
related thereto but shall not include any expansion of, or
beyond, the two units described above (other than enhancements
thereof in the ordinary course of business). Any reference to
the Facility in respect of either Revolver Borrower shall be
deemed to include only that portion of the Facility in which
such Revolver Borrower has an ownership or leasehold interest.
"Facility Contracts" means, collectively, the
Contracts listed on Schedule 3.24, and any other material
Contract (whether or not in substitution for any of the
foregoing) to which OSP I or OSP II becomes a party after the
date of this Agreement relating to the construction, ownership
or operation of the Facility, including without limitation the
Power Sale Agreements.
"Facility Permits" means the permits listed on
Schedule 3.10.
"Facility Site" means the parcel of land owned by OSP
I and leased, in part, to OSP II at Burrillville, Rhode Island,
on which the Facility is located, the parcel of land owned by
OSP I and subject to an easement granted to OSP II at
Woonsocket, Rhode Island, together with all easements, rights of
way and similar property interests appurtenant or related
thereto or supporting the Facility.
"Federal Funds Rate" means, for any day, 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 for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so
published for any day that is a Business Day, the average of
quotations for such day on such transactions received by The
Bank of New York from three Federal funds brokers of recognized
standing selected by such bank.
"FERC" means the Federal Energy Regulatory Commission and any
successor thereto.
"Fixed Rate Loan" means any CD Rate Loan or Eurodollar Rate
Loan.
"GAAP" means generally accepted accounting principles and,
where applicable, the Uniform System of Accounts of FERC, in
each case as in effect at the time of application to the
provisions hereof.
"Governmental Approval" means any authorization, consent,
approval, license or exemption of, registration or filing with,
or report or notice to, any governmental unit.
"Governmental Body" means any federal, state, municipal or
other governmental department, commission, board, bureau, agency
or instrumentality (including, without limitation, the SEC, the
RIDPUC and FERC).
"Guarantee" means, with respect to any Person, any guarantee
or other contingent liability (other than any endorsement for
collection or deposit in the ordinary course of business),
direct or indirect, with respect to any obligation of another
Person, through an agreement or otherwise, including without
limitation:
A. any other endorsement or discount with recourse or
undertaking substantially equivalent to or having economic
effect similar to a guarantee in respect of any such obligation,
B. any agreement
(1) to purchase, or to advance or supply funds for the
payment or purchase of, any such obligation,
(2) to purchase, sell or lease property, products, materials
or supplies, or transportation or services, for the purpose of
enabling such other Person to pay any such obligation or to
assure the Person to which such obligation is owed against loss,
in each case regardless of the delivery or nondelivery of the
property, products, materials or supplies, or transportation or
services or
(3) to make any loan, advance or capital contribution to or
other investment in, or to otherwise provide funds to or for,
such other Person for the purpose of enabling such Person to
satisfy any obligation (including any liability for a dividend,
stock liquidation payment or expense) or to assure a minimum
equity, working capital or other balance sheet condition in
respect of any such obligation and
C. any indirect liability of such Person arising as a result
of its status as a joint venturer or partner in a joint venture
or partnership.
The amount of any Guarantee shall be equal to the outstanding
amount of the obligation directly or indirectly guaranteed.
"Guarantor Agreement" means the Guarantor Agreement dated as
of October 19, 1992 among OSP Finance Company, OSP I and OSP II,
as amended.
"Guarantor Notes" means the promissory notes delivered by OSP
I and OSP II pursuant to the Guarantor Agreement.
"Guarantor Security Agreement" means the Guarantor Security
Agreement, dated as of October 19, 1992, among OSP I, OSP II and
State Street Bank and Trust Company, as Collateral Agent.
"Hazardous Materials" has the meaning stated in Section 3.15.
"Indebtedness" of any Person means, as of any date
A. all obligations of such Person for borrowed money,
B. all obligations of such Person for the deferred (for 90
days or more) purchase price of property or services (other than
trade payables and accrued expenses incurred in the ordinary
course of business),
C. all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
D. all rental obligations of such Person under leases to
the extent such obligations would appear as a liability on a
balance sheet of such Person in accordance with GAAP (other than
as may be created under the Inter-Guarantor Agreements),
E. all direct and indirect Guarantees of such Person with
respect to obligations of other Persons of any type referred to
in the preceding Subsections A through D, and
F. obligations of other Persons (not assumed by such Person)
secured by any Lien upon property owned by such Person.
"Indemnified Person" means any Person that is, or at any time
was, the Bank, an Affiliate of the Bank or a director, officer,
employee or agent of any such Person.
"Information" means data, certificates, reports, statements
(including financial statements), opinions of counsel, documents
and other information.
"Interest Payment Date" means the last Business Day of each
March, June, September and December.
"Interest Period" means a period commencing, in the case of
the first Interest Period applicable to a Fixed Rate Loan, on
the date of the making of, or conversion into, such Loan, and,
in the case of each subsequent, successive Interest Period
applicable thereto, on the last day of the immediately preceding
Interest Period, and ending, depending on the Type of Loan, in
the case of Eurodollar Interest Periods, on the same day in the
first, second, third, sixth or twelfth calendar month
thereafter, and, in the case of CD Interest Periods, on the day
30, 60, 90 or 180 days thereafter, except that (a) any Interest
Period that would otherwise end on a day that is not a Business
Day or, in the case of a Eurodollar Interest Period or a CD
Interest Period for a CD Rate Loan being converted into a
Eurodollar Rate Loan, a Eurodollar Business Day shall be
extended to the next succeeding Business Day or Eurodollar
Business Day, as the case may be, unless, in the case of a
Eurodollar Interest Period, such Eurodollar Business Day falls
in another calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business Day and (b)
any Eurodollar Interest Period that begins on the last
Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month in which such Interest Period ends) shall end on the last
Eurodollar Business Day of a calendar month. "CD Interest
Period" and "Eurodollar Interest Period" mean, respectively, an
Interest Period applicable to a CD Rate Loan and a Eurodollar
Rate Loan.
"Inter-Guarantor Agreements" means any Contract to which both
OSP I and OSP II are parties providing for their respective
rights and obligations regarding properties and assets
comprising the Facility and the coordinated construction and
operation thereof, including but not limited to the Ground
Lease, the Common Facilities Lease, the Facilities Coordination
Agreement, the Cross-Easement Agreement, the Woonsocket Easement
Agreement and the Option Agreement, in each case between OSP I
and OSP II and dated as of September 29, 1989, but excluding the
Guarantor Agreement and the Guarantees of OSP I and OSP II on
the notes of OSP Finance Company issued pursuant to the Note and
Guaranty Agreement.
"Investment" means any investment so classified under GAAP,
made by stock purchase, capital contribution, loan or advance or
by purchase of property or otherwise, but in any event shall
include as an investment in any Person the amount of all
Indebtedness owned by such Person and all accounts receivable
from such Person which are not current assets or did not arise
from sales to such Person in the ordinary course of business.
"Lending Office" means the Domestic Lending office or the
Eurodollar Lending office.
"Liability" as applied to a Person, means an obligation or
liability, whether arising under Contract, applicable law or
regulation or otherwise, in each case to the extent such
obligation or liability does not otherwise constitute
Indebtedness of such Person.
"Lien" means, as to any Person, any mortgage, pledge, security
interest, encumbrance, lien, charge, adverse claim or other
arrangement having the effect of the foregoing and shall include
the interest of a vendor or lessor under any conditional sale
agreement or capitalized lease (other than as may be created
under the Inter-Guarantor Agreements) or the signing or filing
of a financing statement that names such Person as debtor or the
signing of any security agreement authorizing any other Person
as the secured party to file any financing statement.
"Loan" means any amount advanced by the Bank pursuant to
Section 1.01.
"Loan Document Related Claim" means any claim or dispute
(whether arising under Applicable Law, including any
"environmental" or similar law, under Contract or otherwise and,
in the case of any proceeding relating to any such claim or
dispute, whether civil, criminal, administrative or otherwise)
in any way arising out of, related to, or connected with, the
Loan Documents, the relationships established thereunder or any
actions or conduct thereunder or with respect thereto, whether
such claim or dispute arises or is asserted before or after the
Closing Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any
"Representation and Warranty" as defined in any Loan Document
and any other representation or warranty made or deemed made
under any Loan Document.
"Loan Documents" means (a) this Agreement, the Notes, the
Guarantor Security Agreement and (b) all other agreements,
documents and instruments relating to, arising out of, or in any
way connected with any agreement, document or instrument
referred to in clause (a) or this clause (b) or any of the
transactions contemplated by any thereof.
"Management Committee" means the OSP I Management Committee
and the OSP II Management Committee, created pursuant to the OSP
I Partnership Agreement or the OSP II Partnership Agreement,
respectively.
"Materially Adverse Effect" means, as to each Revolver
Borrower, a material adverse effect on (a) the ability of such
Revolver Borrower to perform its obligations under this
Agreement, the Notes, any other Loan Document or any other
Indebtedness of such Revolver Borrower, (b) the validity or
enforceability of this Agreement, the Notes, any other Loan
Document, or of the rights or remedies of the Collateral Agent
under the Guarantor Security Agreement, (c) the validity or
enforceability of, or performance of such Revolver Borrower
under, any Power Sale Agreement to which such Revolver Borrower
is a party, or of the rights or remedies of such Revolver
Borrower thereunder; or (d) the overall business, operations,
affairs or condition (financial or other) of such Revolver
Borrower.
"Maximum Permissible Rate" means, with respect to interest
payable on any amount, the rate of interest on such amount that,
if exceeded, could, under Applicable Law, result in (a) civil or
criminal penalties being imposed on the payee or (b) the payee's
being unable to enforce payment of (or, if collected, to retain)
all or any part of such amount or the interest payable thereon.
"Moody's" means Moody's Investors Service, Inc.
"Note" means any Domestic Note or Eurodollar Note.
"Note and Guaranty Agreement" means the Note and Guaranty
Agreement, dated as of October 19, 1992, among OSP Finance
Company, OSP I, OSP II and the several Purchasers named therein.
"Officer's Certificate" means, (A) with respect to any Person
which is a corporation, a certificate signed by the Chairman of
the Board of such Person (if an executive officer) or its
President or one of its Vice Presidents and by its Treasurer or
one of its Assistant Treasurers and (B) with respect to any
Person which is a partnership, a certificate signed by any of
the aforementioned executive officers of a general partner of
such Person.
"O&M Agreement" means the Operation and Maintenance Agreement,
dated as of July 7, 1988, between OSP I and General Electric
Company, as in part assigned to OSP II by OSP I pursuant to the
Partial Assignment Agreement, dated as of September 29, 1989.
"OSP I" means Ocean State Power, a Rhode Island general
partnership.
"OSP I Partners" means TCPL Power Ltd., EUA Ocean State
Corporation, Narragansett Energy Resources Company and JMC Ocean
State Corporation.
"OSP II" means Ocean State Power II, a Rhode Island general
partnership.
"OSP II Partners" means TCPL Power Ltd., EUA Ocean State
Corporation, Narragansett Energy Resources Company and JMC Ocean
State Corporation.
"OSP I Partnership Agreement" means the Amended and Restated
Partnership Agreement of OSP I, dated as of December 2, 1988,
among the OSP I Partners.
"OSP II Partnership Agreement" means the Amended and Restated
Partnership Agreement of OSP II, dated as of September 29, 1989,
among the OSP II Partners.
"Partners" means the OSP I Partners and the OSP II Partners.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Investments" means Investments that are
A. obligations issued or guaranteed by the United States of
America and maturing within one year after acquisition thereof;
B. obligations issued or guaranteed by any state or
political subdivision of the United States of America, maturing
within one year after acquisition thereof, with a rating of at
least "A-1, "MIG-1" or "P-1" by Moody's and "A+", "SP-1" or
"A-1" by S&P (or either of them if such obligation is rated by
only one such rating agency);
C. open-market commercial paper, maturing within 270 days
after issuance thereof, issued by U.S. domestic corporations
having on any date of determination a commercial paper rating of
at least "P-1 by Moody's and "A-111 by S&P (or either of them
if such commercial paper is rated by only one such rating
agency);
D. investments in time deposits or certificates of deposit,
maturing within one year after acquisition thereof, issued by or
banker's acceptances eligible for rediscount under the
requirements of the Board of Governors of the Federal Reserve
System drawn on and accepted by (i) The Bank of New York or (ii)
a domestic commercial bank or the U.S. branch of a foreign bank
(a) with a bank deposit rating or a commercial paper rating of
at least "P-1" by Moody's and "A-1" by S&P (or either of them if
such bank is rated by only one such rating agency) or, if such
bank does not have a commercial paper or bank deposit rating, an
outstanding long-term debt rating of at least "A" by S&P, (b)
that is a member of the Federal Deposit Insurance Corporation
and (c) having a combined capital, surplus and undistributed
profits of at least $500,000,000;
E. fully secured repurchase obligations with a term of not
more than 30 days for underlying securities of the types
referred to in clauses A or B entered into with The Bank of New
York or any bank meeting the qualifications specified in clause
D;
F. assets acquired by either Revolver Borrower pursuant to
the Property Value Stabilization Plan; and
G. in a money market fund the portfolio of which consists
solely of investments described in paragraphs A-E above.
"Person" means any individual, sole proprietorship,
corporation, partnership, trust, unincorporated organization,
mutual company, joint stock company, estate, union, employee
organization, government or any agency or political subdivision
thereof.
"Post-Default Rate" means the rate otherwise applicable under
Section 1.03(a) plus 2.0%.
"Power Purchasers" means Boston Edison Company, New England
Power Company, Montaup Electric Company and Newport Electric
Corporation (until such time as it shall assign all of its
rights and obligations under the Power Sale Agreements to which
it is a party to Montaup Electric Company) and any purchaser of
power from the Facility pursuant to a Substitute Power Sale
Agreement entered into pursuant to Section 12A(3) of the Note
and Guaranty Agreement.
"Power Sale Agreements" means (A) with respect to OSP I, the
Unit Power Agreement, dated as of December 31, 1985, between OSP
I and Boston Edison Company; the Unit Power Agreement, dated as
of May 14, 1986, between OSP I and New England Power Company;
the Unit Power Agreement, dated May 14, 1986, between OSP I and
Montaup Electric Company; and the Unit Power Agreement, dated as
of May 14, 1986, between OSP I and Newport Electric Corporation,
(B) with respect to OSP II, the Unit Power Agreement, dated as
of July 1, 1988, between OSP II and Boston Edison Company; the
Unit Power Agreement, dated as of June 15, 1988, between OSP II
and New England Power Company; the Unit Power Agreement, dated
as of September 28, 1988 between OSP II and Montaup Electric
Company; and the Unit Power Agreement, dated as of July 12,
1988, between OSP II and Newport Electric Corporation and (C)
any Substitute Power Sale Agreement entered into pursuant to
Section 12A(3) of the Note and Guaranty Agreement.
"Power Sale Revenues" means all amounts payable to the
Revolver Borrowers in respect of the most recently concluded
billing period prior to the date of determination pursuant to
the Power Sale Agreements, without regard to whether any of the
Power Sale Agreements is a Defaulted Power Sale Agreement.
"Prime Rate" means the prime commercial lending rate of The
Bank of New York, as publicly announced to be in effect from
time to time. The Prime Rate shall be adjusted automatically,
without notice, on the effective date of any change in such
prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York's lowest rate of interest.
"Property Value Stabilization Plan" means the property value
stabilization plan adopted pursuant to the Mitigation Agreement,
dated December 27, 1988, between OSP I and Tennessee (as defined
in the Note and Guaranty Agreement), together with any
additional requirements as to mitigation of the effects of
Facility operations on properties within the vicinity of the
Facility Site imposed by any Governmental Body.
"Refinancing Documents" means the Note and Guaranty Agreement,
the notes issued pursuant thereto (the "OSP Finance Notes"), the
Borrower Security Agreement (as defined in the Note and Guaranty
Agreement), the Guarantor Security Agreement, the Guarantor
Agreement, the Guarantor Notes and the Guarantees of OSP I and
OSP II endorsed on the OSP Finance Notes, and all documents,
agreements and instruments executed and delivered in connection
therewith.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force
of law), or any change therein or in the administration or
enforcement thereof, that becomes effective or is implemented or
first required or expected to be complied with after the Closing
Date, whether the same is (a) the result of an enactment by a
government or any agency or political subdivision thereof, a
determination of a court or regulatory authority, or otherwise
or (b) enacted, adopted, issued or proposed before or after the
Closing Date, including any such that imposes, increases or
modifies any Tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement,
but excluding any such that imposes, increases or modifies any
Bank Tax.
"Repayment Date" means the later of (a) the termination of the
Commitment (whether as a result of the occurrence of the
Termination Date, reduction to zero pursuant to Section 1.07 or
termination pursuant to Section 5.02) and (b) the payment in
full of the Loans and all other amounts payable or accrued
hereunder.
"Representation and Warranty" means any representation or
warranty made pursuant to or under (a) Section 2.02, Article 3
or any other provision of this Agreement or (b) any amendment
to, or waiver of rights under, this Agreement, WHETHER OR NOT,
IN THE CASE OF ANY REPRESENTATION OR WARRANTY REFERRED TO IN
CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT
IS THE SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE
REVOLVER BORROWER MAKING SUCH REPRESENTATION OR WARRANTY.
"Reserve Requirement" means, at any time, the then current
maximum rate for which reserves (including any marginal,
supplemental or emergency reserve) are required to be maintained
under Regulation D by member banks of the Federal Reserve System
in New York City with deposits comparable in amount to those of
the Bank against (a) in the case of a CD Rate Loan, negotiable
certificates of deposit in an amount of $100,000 or more with a
term comparable to the Interest Period applicable to such Loan
and (b) in the case of a Eurodollar Rate Loan, "Eurocurrency
liabilities", as that term is used in Regulation D. The Adjusted
CD and Adjusted Eurodollar Rates shall be adjusted automatically
on and as of the effective date of any change in the applicable
Reserve Requirement.
"Restricted Payment" means, with respect to any Person,
A. the declaration of any dividend or distribution on, or
the incurrence of any liability to make any other payment or
distribution in respect of, any equity capital of such Person
(other than one payable solely in its common equity), and
B. any payment or distribution on account of the purchase,
redemption or other retirement of any equity capital of such
Person, or of any warrant, option or other right to acquire such
equity capital, or any other payment or distribution (other than
pursuant to a dividend or distribution theretofore declared or
liability theretofore incurred as specified in Subsection A
above), made in respect thereof, either directly or indirectly.
"Revolver Borrower" means OSP I or OSP II; Revolver Borrowers
means the Revolver Borrowers and each of them, individually and
collectively.
"RIDPUC" means the Rhode Island Division of Public Utilities
and Carriers.
"S&P" means Standard & Poor's Corporation.
"SEC" means the Securities and Exchange Commission.
"Secured Party" means the Holders and the Additional
Creditors, as such terms are defined in the Guarantor Security
Agreement as in effect on the Closing Date.
"Security Interest" means the Liens created, or purported to
be created, by the Loan Documents.
"Senior Indebtedness" means the Indebtedness of the Revolver
Borrowers constituting Guarantees of the Revolver Borrowers on
the notes of OSP Finance Company issued pursuant to the Note and
Guaranty Agreement and the Indebtedness of the Revolver
Borrowers incurred hereunder.
"Site Restoration Funds" means the funds established under
each of the Site Restoration Trust Agreement, dated as of April
17 1991, between The Bank of New York and OSP and the Site
Restoration Trust Agreement, dated as of September 30, 1991
between The Bank of New York and OSP II (each a "Site
Restoration Trust Agreement") for Site Restoration (as defined
in the Site Restoration Trust Agreements.
"Subsidiary" means, with respect to any Person, any other
Person (a) securities of which having ordinary voting power to
elect a majority of the board of directors (or other persons
having similar functions) or (b) other ownership interests of
which ordinarily constituting a majority voting interest, are at
the time, directly or indirectly, owned or controlled by such
first Person, or by one or more of its Subsidiaries, or by such
first Person and one or more of its Subsidiaries; unless
otherwise specified, "Subsidiary" means a Subsidiary of the
Revolver Borrowers or either of them.
"Tax" means any Federal, State or foreign tax, assessment or
other governmental charge or levy (including any withholding
tax) upon a Person or upon its assets, revenues, income or
profits.
"Tennessee Security Account" means the accounts of OSP and OSP
II maintained at the Collateral Agent for the purpose of
accepting payments by the Power Purchasers to OSP and OSP II,
respectively, of specified charges under the Power Sale
Agreements.
"Termination Date" means the seventh anniversary of Closing
Date.
"Total Capitalization" means, as of any date of determination
and as to both Revolver Borrowers in the aggregate, the sum as
of such date of (A) the total shareholders' equity of the
Revolver Borrowers, determined in accordance with GAAP (but
excluding any portion thereof attributable to any write-up in
the book value of any asset on the books of the Revolver
Borrowers resulting from a revaluation thereof on other than a
cost basis subsequent to December 31, 1991), and (B) the
aggregate outstanding principal amount of Indebtedness of the
Revolver Borrowers incurred pursuant to Section 4.13.
"Type" means, with respect to Loans, any of the following,
each of which shall be deemed to be a different "Type" of Loan:
Base Rate Loans, CD Rate Loans having a 30-day Interest Period,
CD Rate Loans having a 60-day Interest Period, CD Rate Loans
having a 90-day Interest Period, CD Rate Loans having a 180-day
Interest Period, Eurodollar Rate Loans having a one-month
Interest Period, Eurodollar Rate Loans having a two-month
Interest Period, Eurodollar Rate Loans having a three-month
Interest Period, Eurodollar Rate Loans having a six-month
Interest Period and Eurodollar Rate Loans having a twelve-month
Interest Period. Any CD Rate Loan or Eurodollar Rate Loan
having an Interest Period with a duration that differs from the
duration specified for a Type of CD Rate Loan or Eurodollar Rate
Loan, as the case may be, listed above solely as a result of the
operation of clauses (a) and (b) of the definition of "Interest
Period" shall be deemed to be a Loan of such above-listed Type
notwithstanding such difference in duration of Interest Periods.
Section 8.02. Other Interpretive Provisions. (a)
Except as otherwise specified herein, all references herein (i)
to any Person shall be deemed to include such Person's
successors and assigns, (ii) to any Applicable Law defined or
referred to herein shall be deemed references to such Applicable
Law or any successor Applicable Law as the same may have been or
may be amended or supplemented from time to time and (iii) to
any Loan Document or Contract defined or referred to herein
shall be deemed references to such Loan Document or Contract
(and, in the case of any Note or any other instrument, any
instrument issued in substitution therefor) as the terms thereof
may have been or may be amended, supplemented, waived or
otherwise modified from time to time.
(b) When used in this Agreement, the words "herein",
"hereof" and "hereunder" and words of similar import shall refer
to this Agreement as a whole and not to any provision of this
Agreement, and the words "Article", "Section". "Annex",
"Schedule" and "Exhibit" shall refer to Articles and Sections
of, and Annexes, Schedules and Exhibits to, this Agreement
unless otherwise specified.
(c) Whenever the context so requires, the neuter
gender includes the masculine or feminine, the masculine gender
includes the feminine, and the singular number includes the
plural, and vice versa.
(d) Any item or list of items set forth following the
word "including", "include" or "includes" is set forth only for
the purpose of indicating that, regardless of whatever other
items are in the category in which such item or items are
"included", such item or items are in such category, and shall
not be construed as indicating that the items in the category in
which such item or items are "included" are limited to such
items or to items similar to such items.
(e) Each authorization in favor of the Bank or any
other Person granted by or pursuant to this Agreement shall be
deemed to be irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all
references herein to the Bank or either Revolver Borrower shall
be deemed to refer to such Person however designated in the Loan
Documents, so that (i) a reference to rights of the Bank under
the Loan Documents shall be deemed to include the rights of the
Bank as a Secured Party under the Guarantor Security Agreement,
(ii) a reference to costs incurred by the Bank in connection
with the Loan Documents shall be deemed to include costs
incurred by the Bank as a Secured Party under the Guarantor
Security Agreement and (iii) a reference to the obligations of
the Revolver Borrowers or either of them under the Loan
Documents shall be deemed to include the obligations of the
Revolver Borrower(s) as the obligor(s) under the Guarantor
Security Agreement.
Section 8.03. Accounting Matters. Unless otherwise specified
herein, all accounting determinations hereunder and all
computations utilized by the Revolver Borrowers in complying
with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all
financial statements required to be delivered hereunder shall be
prepared, in accordance with GAAP, except, in the case of such
financial statements, for departures from GAAP that may from
time to time be approved in writing by the independent certified
public accountants who are at the time, in accordance with
Section 4.21(b), reporting on the Revolver Borrowers' respective
financial statements.
Section 8.04. Representations and Warranties. All
Representations and Warranties shall be deemed made in the case
of any Representation and Warranty contained in this Agreement
at the time of its initial execution and delivery, at and as of
the Closing Date, and except for Representations and Warranties
expressly contemplated by this Agreement as being made only at
and as of the Closing Date, (a) in the case of any
Representation and Warranty contained in this Agreement or any
other document at the time any Loan is made, at and as of such
time and (b) in the case of any particular Representation and
Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in
accordance with the provisions of this Agreement or the document
pursuant to, under or in connection with which such
Representation and Warranty is made or deemed made.
Section 8.05. Captions. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this
Agreement are included for convenience of reference only and
shall not constitute a part of this Agreement for any other
purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 8.06. Interpretation of Related Documents. Except as
otherwise specified therein, terms that are defined herein that
are used in Notes, certificates, opinions and other documents
delivered in connection herewith shall have the meanings
ascribed to them herein and such documents shall be otherwise
interpreted in accordance with the provisions of this Article 8.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers all
as of the Closing Date.
OCEAN STATE POWER
By JMC Ocean State Corporation,
its General Partner
By
Name:
Title:
OCEAN STATE POWER II
By JMC Ocean State Corporation,
its General Partner
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
Closing Date:
Schedule
1.02
NOTICE OF BORROWING
[Name and address
of Bank in accordance with
Section 7.01(b)(ii)]
Date:
Gentlemen:
Reference is made to the Secured Credit Agreement,
dated as of
May __ , 1994, among Ocean State Power, Ocean State Power II and
The Bank of New York (the "Credit Agreement"). The undersigned
hereby gives notice pursuant to Section 1.02 of the Credit
Agreement of its request to have the following Loans made to it
on [insert requested date of borrowing):
Type of Loan1 Amount
______________________________ ____________
______________________________ ____________
______________________________ ____________
[Please disburse the proceeds of the Loans by [insert
requested method of disbursement) .]2
The undersigned represents and warrants that (a) the
borrowing requested hereby complies with the requirements of
Section 1.02 of the Credit Agreement and (b) (except to the
extent set forth on Annex A hereto, ] 3(i) each Loan Document
Representation and Warranty (other than those made solely at and
as of the Closing Date) is true and correct at and as of the
date hereof and (except to the extent the undersigned gives
notice to the Bank to the contrary prior to 5:00 p.m. (New York
time) on the Business Day before the requested date for the
making of the Loans) will be true and correct at and as of the
time the Loans are made, in each case both with and without
giving effect to the Loans and the application of the proceeds
thereof, and (ii) no Default has occurred and is continuing as
of the date hereof or would result from the making of the Loans
or from the application of the proceeds thereof if the Loans
were made on the date hereof, and (except to the extent the
undersigned gives notice to the Bank to the contrary prior to
5:00 p.m. (New York time) on the Business Day before the
requested date for the making of the Loans) no Default will have
occurred and be continuing at the time the Loans are to be made
or would result from the making of the Loans or from the
application of the proceeds thereof.
(OCEAN STATE POWER]
(OCEAN STATE POWER II)
By JMC Ocean State Corporation,
its General Partner
By
Name:
Title:
1. Be sure to specify the duration of the Interest Period in
the case of Fixed Rate Loans (e.g., one-month Eurodollar
Rate).
2. Include and complete this sentence if the proceeds of the
requested-Loans are to be disbursed in a manner other than
by credit to an account of the Revolver Borrower at the
Bank's Office.
3. If the representation and warranty in either clause (b)(i)
or (b)(ii) would be incorrect, include the material in
brackets and set forth the reasons such representation and
warranty would be incorrect on an attachment labeled Annex A.
Schedule 1.
03(c)(iv)
NOTICE OF CONVERSION OR CONTINUATION
(Name and address
of Bank in accordance with
Section 7.01(b)(ii)]
Date:
Gentlemen:
Reference is made to the Secured Credit Agreement,
dated as of May _ , 1994, among Ocean State Power, Ocean State
Power II and The Bank of New York (the "Credit Agreement"). The
undersigned hereby gives notice pursuant to Section 1.03(c)(iv)
of the Credit Agreement of its desire to convert or continue the
Loans specified below into or as Loans of the Types and in the
amounts specified below on [insert date of conversion or
continuation]:
Converted
Loans to be Converted or Continued or Continued Loans
Last Day of
Type Current Type
of Loan1 Interest Period Amount of Loan2
Amount
_______ _______________ ______ _______ ______
_______ _______________ ______ _______ ______
_______ _______________ ______ _______ ______
The undersigned represents and warrants that
conversions and continuations requested hereby comply with the
requirements of Section 1.03(c) of the Credit Agreement.
(OCEAN STATE POWER)
(OCEAN STATE POWER II]
By JMC Ocean State
Corporation, its General
Partner
By
Name:
Title:
1. Be sure to specify the duration of the Interest Period in
the case of Fixed Rate Loans (e.g., one-month Eurodollar
Rate).
Schedule 1.05
NOTICE OF PREPAYMENT
[Name and address
of Bank in accordance with
Section 7.01(b)(ii)]
Date:
Gentlemen:
Reference is made to the Secured Credit Agreement,
dated as of May _ , 1994, among Ocean State Power, Ocean State
Power II and The Bank of New York (the "Credit Agreement"). The
undersigned hereby gives notice pursuant to Section 1.05 of the
Credit Agreement that it will prepay the Loans specified below
on [insert date of prepayment]:
Last Day of
Current
Type of Loan1 Interest Period Amount
________________________ _______________ ___________
________________________ _______________ ___________
________________________ _______________ ___________
The undersigned represents and warrants that
conversions and continuations requested hereby comply with the
requirements of Section 1.03(c) of the Credit Agreement.
(OCEAN STATE POWER)
(OCEAN STATE POWER II]
By JMC Ocean State
Corporation,
its General Partner
By
Name:
Title:
_____________________
1. Be sure to specify the duration of the Interest Period in
the case of Fixed Rate Loans (e.g., one-month Eurodollar
Rate).
Schedule 2.01(a)(v)
OPINION OF REVOLVER BORROWER'S COUNSEL
May , 1994
The Bank of New York
One Wall Street
New York, New York 10286
Gentlemen:
We have acted as counsel for Ocean State Power and
Ocean State Power II (together, the "Revolver Borrowers" and
each of them, a "Revolver Borrower") in connection with the
negotiation, execution and delivery of the Credit Agreement,
dated as of May , 1994, among the Revolver Borrowers and The
Bank of New York (the "Credit Agreement"). Terms defined in the
Credit Agreement that are not otherwise defined herein are used
herein with the meanings therein ascribed to them. As used
herein "Obligations" shall have the meaning ascribed thereto in
the Guarantor Security Agreement.
For the Purposes of rendering the opinions contained
in this letter, we have examined and reviewed the following:
(1) executed copies of the Credit Agreement, the
Guarantor Security Agreement and the Supplement thereto, the
Notes and each of the other Loan Documents;
(2) copies of each of the Power Sale Agreements:
(3) copies of the general partnership agreements of
each Revolver Borrower;
(4) search reports with respect to UCC financing
statements filed against each Revolver Borrower; and
(5) such other documents and records as we have
deemed necessary in order to render the opinions set forth
herein.
As to questions of fact material to opinions that we
did not independently establish, we have relied upon
certificates of the Revolver Borrowers or their respective
officers.
The opinions expressed below are limited to the laws
of the States of New York and Rhode Island and the Federal laws
of the United States.
For purposes of this opinion, we have assumed:
(1) the genuineness of all signatures and the
authenticity of all documents submitted to us as originals
and the conformity to authentic originals of all documents
submitted to is as certified or photostatic copies; and
(2) the due authorization, execution and delivery by
the Bank of the Credit Agreement, the Supplement to the
Guarantor Security Agreement and each of the other Loan
Documents to which it is a party.
Based upon the foregoing, we are of the opinion that:
1. Each of the Revolver Borrowers is a general
partnership duly formed and validly existing and in good
standing under the laws of Rhode Island, with all requisite
partnership power to own or hold under lease its assets, to
transact the business in which it is engaged and to execute,
deliver, borrow under and perform in accordance with their
respective terms the Loan Documents to which it is a party, and
each Revolver Borrower is qualified to do business and in good
standing in all states in which it is required to be qualified
where failure to so qualify would have a Materially Adverse
Effect.
2. The Credit Agreement and each of the other Loan
Documents and the borrowings thereunder by each Revolver
Borrower have been duly authorized by all necessary partnership
action on the part of each Revolver Borrower and all necessary
action on the part of each Revolver Borrower's Management
Committee, and the Credit Agreement and each of the other Loan
Documents constitute legal, valid and binding obligations of
each Revolver Borrower, enforceable against it in accordance
with the respective terms, except as enforceability may be
limited by applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights
generally and general principles of equity.
3. The Guarantor Security Agreement has duly created
a valid security interest in the Collateral in favor of the
Collateral Agent for the benefit of the Bank ratably as a
Secured Party, subject to the terms and conditions of the
Guarantor Security Agreement, and such security interest is duly
perfected as a first priority security interest.
4. The Credit Agreement, the Notes, the Guarantor
Security Agreement and the Supplement thereto and each of the
other Loan Documents have been duly executed and delivered by
each of the Revolver Borrowers.
5. The choice of law of the State of New York as the
law in accordance with which the Credit Agreement, the Notes and
each of the other Loan Documents (other than the Guarantor
Security Agreement) shall be governed, interpreted and enforced
(including the usury laws of the State of New York) is an
effective choice of law under the laws of Rhode Island, and
adherence to existing judicial precedents under the laws of such
jurisdiction would require courts sitting in such jurisdiction
to abide by such choice of law.
6. The execution and delivery of the Credit
Agreement and each of the other Loan Documents, the borrowings
thereunder by each Revolver Borrower, the consummation of the
transactions contemplated thereby and the performance of the
provisions thereof do not and will not result in any violation
or breach of, any default under or, except as specifically
contemplated thereby, the creation of any Lien in respect of
either Revolver Borrower's property pursuant to or under its
partnership agreement or other governing documents, any
Applicable Law or agreement, document or instrument to which it
is a party or by which it is bound.
7. Except as set forth in Schedule 3.06 to the
Credit Agreement, there is no action, proceeding or
investigation pending or, to our knowledge, threatened against
either Revolver Borrower or any of its assets or properties
which questions the validity of the Credit Agreement, or any of
the other Loan Documents or any action taken or to be taken
pursuant thereto or which otherwise could, if adversely
determined, reasonably be expected to result, either alone or in
the aggregate, in any Materially Adverse Effect.
8. No Governmental Approval or any other consent or
approval is required for the execution and delivery by either
Revolver Borrower of the Credit Agreement or any other Loan
Document or any instrument contemplated hereby or thereby, for
the borrowings by either Revolver Borrower thereunder or for its
performance of any of the terms or conditions thereof, except
for the Facility Permits. Each Facility Permit has been
obtained, and, except as set forth on Schedule 3.10 to the
Credit Agreement, is final and in full force and effect, has not
been modified in any way and is not subject to any pending or
threatened appeal or attack by way of direct proceedings or
otherwise and the time within which any such appeal or attack
may be brought which could affect the validity of the Credit
Agreement or any of the other Loan Documents has expired. All
terms and conditions of each Facility Permit required to be
satisfied or performed by either Revolver Borrower prior to such
date have been duly satisfied and performed.
9. Each Revolver Borrower is a "public utility
company" and a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of
1935, as amended. Each Revolver Borrower is a "public
utility," as such term is defined in the Federal Power Act, as
amended, and in the Rhode Island General Laws. The Facility
Permits include all authorizations, consents, orders, approvals,
declarations, filings and registrations required under said Acts
in connection with each Revolver Borrower's execution and
delivery of the Credit Agreement and the other Loan Documents
and any instrument contemplated thereby for the borrowings by
each Revolver Borrower thereunder and for the performance by
each Revolver Borrower of the terms and conditions thereof.
Without limiting the foregoing, the execution, delivery and
performance by each Revolver Borrower of the Credit Agreement
and the other Loan Documents have been approved by all necessary
action of the SEC under the Public Utility Holding Company Act
of 1935, as amended, and of the RIDPUC under the Rhode Island
General Laws, and, accordingly, no appeal of said approvals or
attack thereon or review thereof made after the consummation of
the transactions contemplated hereby would affect the validity
thereof or alter or diminish or void the obligations of either
Revolver Borrower thereunder.
10. Each of the Power Sale Agreements has been duly
authorized by all necessary partnership action on the part of
each Revolver Borrower, and all necessary action on the part of
each Revolver Borrower's Management Committee, is in full force
and effect and there is, to the best of our knowledge, no
presently effective waiver of any obligations thereunder of any
party thereto.
11. Each of the Facility Contracts has been duly
executed and delivered by the Revolver Borrower party to it and
constitutes on such date the legal, valid and binding obligation
of such Revolver Borrower and, to the best of our knowledge, the
other parties thereto, enforceable against such parties in
accordance with its respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights
of creditors generally or principles of equity.
12. All taxes and governmental fees and charges, the
payment of which is required in connection with (a) the
creation, perfection or the filing of the Security Interest, (b)
the execution and delivery of the Credit Agreement, the
Guarantor Security Agreement and each of the other Loan
Documents, (c) the obtaining of credit under the Credit
Agreement and the repayment thereof and (d) the payment or
performance of any of the obligations under the Loan Documents,
are listed on Schedule 1 hereto.
We confirm to the Bank that we have reviewed the terms
and provisions of the Credit Agreement with the Management
Committee of each of the Revolver Borrowers and that, in
particular, we have called to their attention those provisions
under and pursuant to which (a) the Revolver Borrowers waive
their rights to trial by jury and to claim special, indirect and
consequential damages and (b) the Loan Documents, as written,
embody the entire agreement among the Revolver Borrowers and the
Bank, supersede all prior representations, agreements and
understandings, if any, relating to the subject matter thereof
and may only be amended, or any of the terms or provisions
thereof waived, or any departures therefrom consented to, in a
writing signed by the Bank.
We further confirm to the Bank that we know of no
representations made by the Bank or any of its officers or
agents or of any agreements or understandings made by the Bank
or any of its officers or agents, in each case whether written
or oral, that are not set forth in writing in the Loan Documents
and that we have advised the Management Committee of each
Revolver Borrower that if it believes any such representations,
agreements or understandings have been made they cannot be
relied upon.
Very truly yours
Schedule 2.01(a)(vi)
[NAME OF REVOLVER BORROWER]
OFFICERS' CERTIFICATE
I, , [title] of JMC Ocean State
Corporation, a general partner of [name of Revolver Borrower], a
Rhode Island general partnership (the "Revolver Borrower"),
hereby certify, pursuant to Section 2.01(a)(vi) of the Secured
Credit Agreement, dated as of May _, 1994, (the "Credit
Agreement"), among Ocean State Power, Ocean State Power II and
The Bank of New York (with capitalized terms used and not
otherwise defined herein used with the meanings ascribed to them
in the Credit Agreement), that, as of the date hereof:
1. Each Loan Document Representation and Warranty is
true and correct; and
2. No Default has occurred or is continuing.
IN WITNESS WHEREOF, I have signed this certificate
this day of May, 1994.
______________________________
[Title]
Schedule 2.01(a)(ix)
[NAME OF PARTNER]
OFFICERS' CERTIFICATE
I, , [title] of JMC Ocean State
Corporation, a Rhode Island corporation (the "Company") and
general partner of [name of Revolver Borrower], a Rhode Island
general partnership (the "Revolver Borrower"), hereby certify,
pursuant to Section 2.01(a) of the Secured Credit Agreement
dated as of May _, 1994 (the "Credit Agreement") among Ocean
State Power, Ocean State Power II and The Bank of New York (with
capitalized terms not otherwise defined used herein with the
meanings ascribed to them in the Credit Agreement), that:
1. The below named persons have been duly elected
(or appointed) and have been duly qualified as, and on this
day are, officers of the Company holding their respective
offices below set opposite their names, and the signatures
below set opposite their names are their genuine signatures:
Name Office Signature
[Insert names and offices _______________________
of persons authorized to sign the _______________________
Loan Documents to which _______________________
the Revolver Borrower is a party _______________________
and any related documents] _______________________
2. Attached as Annex A is a true and correct copy of
resolutions duly adopted by [unanimous written consent of]
the Management Committee of the Revolver Borrower. Such
resolutions have not been amended, modified or revoked and
are in full force and effect on the date hereof.
3. [List Loan Documents to which the Revolver Borrower
is a party], in each case as executed and delivered on
behalf of the Revolver Borrower, are in the forms thereof
approved by [unanimous written consent of] the Management
Committee of the Revolver Borrower.
IN WITNESS WHEREOF, I have signed this certificate
this day of May, 1994.
[Title)
I, , [title] of the Company, hereby
certify that [name of the above (title)] has been duly elected
or appointed and has been duly qualified as, and on this day is,
[title] of the Company, and the signature in paragraph 1 above
is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate
this day of May, 1994.
_____________________________
[Title]
Annex A
(NAME OF REVOLVER BORROWER]
RESOLUTIONS OF MANAGEMENT COMMITTEE
WHEREAS, it is a condition to such borrowings under the
Credit Agreement that this Partnership (a) secure all
Liabilities (as that term is defined in the Credit Agreement) of
this Partnership under the Credit Agreement with a security
interest in, pledge and assignment of, and lien upon, the
Collateral (as defined in the below-mentioned Guarantor Security
Agreement) subject to the terms and conditions set forth in the
Guarantor Security Agreement, and (b) authorize the Bank, at any
time and from time to time, without notice, to take all of the
actions contemplated by Section 1.11(c) and Section 7.08 of the
Credit Agreement with respect to any and all amounts owing by
the Bank or any of its Affiliates (as defined in the Credit
Agreement) to this Partnership; be it hereby
RESOLVED, that this Partnership is authorized to borrow
from The Bank of New York (the "Bank"), under and pursuant to
the below-mentioned Credit Agreement, an aggregate principal
amount not to exceed at any time outstanding $15,000,000, to be
repaid in accordance with the Credit Agreement, with interest on
the unpaid principal amounts thereof from time to time
outstanding at the interest rates per annum provided for in the
Credit Agreement and to be jointly and severally liable for all
amounts payable to the Bank by either this Partnership or [Ocean
State Power][Ocean State Power II] under and pursuant to the
Credit Agreement; and be it further
RESOLVED, that this Partnership is authorized to secure
all Liabilities of this Partnership under the Credit Agreement
with a security interest in, pledge and assignment of, and lien
upon, (a) the Collateral (as defined in the below-mentioned
Guarantor Security Agreement); and be it further
RESOLVED, that this Partnership is authorized to
authorize the Bank, at any time and from time to time, without
notice, to take all of the actions contemplated by Section
1.11(c) and Section 7.08 of the Credit Agreement with respect to
any and all amounts owing by the Bank or any of its Affiliates
to this Partnership subject to the limitations set forth therein
with respect to the Site Restoration Funds (A) and the Tennessee
Security Accounts (in each case, as defined in the Credit
Agreement); and be it further
RESOLVED, that the form, terms and provisions of:
(a) the proposed Secured Credit Agreement (the "Credit
Agreement"), in substantially the form of the draft of
, 19__, among this Partnership, [Ocean State Power][Ocean State
Power II] and the Bank, providing, among other things, (i) for
the making by the Bank to this Partnership from time to time of
advances ("Loans") in an aggregate principal amount not to
exceed at any time outstanding $15,000,000 upon the terms and
conditions therein set forth, (ii) for the payment by this
Partnership of the fees, costs and expenses as therein provided,
(iii) for the joint and several liability of this Partnership
with [Ocean State Power][Ocean State Power II] for all amounts
payable to the Bank by either this Partnership or [Ocean State
Power][Ocean State Power II] thereunder AND (iv) FOR THE WAIVER
BY THIS PARTNERSHIP OF (A) TRIAL BY JURY AND (B) CLAIMS FOR
SPECIAL, INDIRECT AND CONSEQUENTIAL DAMAGES, ALL AS THEREIN
PROVIDED;
(b) the proposed promissory notes (the "Notes"), in
substantially the form of Exhibits A-1 and A-2 to the draft of
the Credit Agreement referred to in paragraph (a) of this
resolution, to be issued by this Partnership jointly and
severally with [Ocean State Power][Ocean State Power II] to the
Bank pursuant to the terms and conditions of the Credit
Agreement, to evidence the indebtedness of this Partnership to
the Bank resulting from each of the Loans made by the Bank to
this Partnership or [Ocean State Power][Ocean State Power II)
and providing, among other things, for the repayment of such
Loans, and payment of interest thereon and for the joint and
several liability of this Partnership for all amounts payable to
the Bank by either this Partnership or [Ocean State Power][Ocean
State Power II]; and
(c) the Guarantor Security Agreement (the "Guarantor
Security Agreement"), dated as of October 19, 1992, among this
Partnership, [Ocean State Power][Ocean State Power II] and State
Street Bank and Trust Company, as Collateral Agent, and the
proposed Supplement thereto in substantially the form of the
draft of , 19_, among this Partnership, [Ocean State
Power][Ocean State Power II] and the Bank, providing, among
other things, (i) for a security interest in, pledge and
assignment of, and lien upon, the Collateral (as defined
therein), including the following (in each case as defined
therein), as security for the Obligations (as defined therein),
including (without limitation) all amounts payable under the
Credit Agreement: (A) each of the Power Sale Agreements, as the
same may be amended, modified or supplemented from time to time
and (B) all Proceeds (as defined in the Uniform Commercial Code
as in effect in Rhode Island) of the foregoing; (ii) for the
waiver of any notice or judicial hearing in connection with the
Collateral Agent's taking or other disposition of the
Collateral; (iii) for the grant by this Partnership to the
Collateral Agent of this Partnership's power of attorney for
certain purposes; (iv) for the Collateral Agent's obtaining the
appointment of a receiver upon the occurrence of an event of
default in accordance with the Guarantor Security Agreement; and
(v) for, upon the occurrence of a default, the Collateral
Agent's exercising dominion and control over and refusing to
permit withdrawals from the various deposit, custody and other
accounts constituting part of the Collateral;
be, and the same hereby are, in all respects approved, and that,
the [Chairman] of the Management Committee of this Partnership,
[the President, any Vice President or the Treasurer) of JMC
Ocean State Corporation, a general partner of this partnership,
or J. Makowski Management Company, the project management firm
(and any successor) (each, an "Authorized Officer") be, and each
of them hereby is, authorized, in the name and on behalf of this
Partnership, to execute and deliver the Credit Agreement, the
Notes and the Supplement to the Guarantor Security Agreement
(collectively, the "Loan Documents"), each in the form, or
substantially in the form, thereof submitted to the Management
Committee of this Partnership, with such changes, additions and
modifications thereto as the Authorized Officer executing the
same shall approve, such approval to be conclusively evidenced
by his execution and delivery thereof; and be it further
RESOLVED, that the drafts of the Loan Documents
referred to above be filed among the minutes of the meeting of
the Management Committee of this Partnership; and be it further
RESOLVED, that the proper Authorized Officers be, and
each of them hereby is, authorized and empowered (any one of
them acting alone) to do or cause to be done all such acts or
things and to sign and deliver, or cause to be signed and
delivered, all such documents, instruments and certificates
(including, without limitation, all notices and certificates
required or permitted to be given or made under the terms of the
Loan Documents), in the name and on behalf of this Partnership
or otherwise, as such Authorized Officer may deem necessary,
advisable or appropriate to effectuate or carry out the purposes
and intent of the foregoing resolutions and to perform the
obligations of this Partnership under the agreements and
instruments referred to therein.
Schedule 3.06
SCHEDULE OF MATERIAL LITIGATION
Schedule 3.10
SCHEDULE OF FACILITY PERMITS
Schedule 3.11
SCHEDULE OF EXISTING INDEBTEDNESS,
LIENS, INVESTMENTS AND GUARANTIES
Schedule 3.15
SCHEDULE OF ENVIRONMENTAL COMPLIANCE
Schedule 3.17
SCHEDULE OF PARTNERSHIP INTERESTS
Schedule 3.24
SCHEDULE OF FACILITY CONTRACTS
EXHIBIT A-1
OCEAN STATE POWER
OCEAN STATE POWER II
DOMESTIC NOTE
May _, 1994
FOR VALUE RECEIVED, OCEAN STATE POWER and OCEAN STATE
POWER II (together, the "Revolver Borrowers") hereby promise to
pay to the order of THE BANK OF NEW YORK (the "Bank") the
principal amount of Dollars ($ ), or, if
less, the principal amount of the Domestic Rate Loans
outstanding, on the dates and in the amounts specified in
Section 1.04 of the Credit Agreement referred to below, and to
pay interest on such principal amount on the dates and at the
rates specified in section 1.03 of such Credit Agreement. All
payments due the Bank hereunder shall be made to the Bank at the
place, in the type of money and funds and in the manner
specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the
grid attached hereto, or on a continuation thereof, each
Domestic Rate Loan and each payment, prepayment or conversion
with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Domestic Note evidences Loans made under, and is
entitled to the benefits of, the Secured Credit Agreement, dated
as of May _ , 1994, among the Revolver Borrowers and the Bank,
as the same may be amended from time to time. Reference is made
to such Credit Agreement, as so amended, for provisions relating
to the prepayment and the acceleration of the maturity hereof.
This Domestic Note is also entitled to the benefits of the
Guarantor Security Agreement.
This Domestic Note shall be construed in accordance
with and governed by the law of the State of New York (without
giving effect to its choice of law principles).
OCEAN STATE POWER
By JMC Ocean State Corporation,
its General Partner
By ____________________________
Name:
Title:
OCEAN STATE POWER II
By JMC Ocean State Corporation,
its General Partner
By ____________________________
Name:
Title:
GRID
DOMESTIC NOTE
_________________________________________________________________
_____________
Amount of
Amount of Principal Paid, Unpaid Principal
Domestic Prepaid or Amount of
Notation
Date Rate Loan Converted Domestic Note
Made By
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
EXHIBIT A-2
OCEAN STATE POWER
OCEAN STATE POWER II
EURODOLLAR NOTE
May _, 1994
FOR VALUE RECEIVED, OCEAN STATE POWER AND OCEAN STATE
POWER II (together, the "Revolver Borrowers") hereby promise to
pay to the order of THE BANK OF NEW YORK (the "Bank") the
principal amount of Dollars
($ ), or, if less, the principal amount of the
Eurodollar Rate Loans outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement
referred to below, and to pay interest on such principal amount
on the dates and at the rates specified in Section 1.03 of such
Credit Agreement. All payments due the Bank hereunder shall be
made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.11 of such Credit
Agreement.
Each holder hereof is authorized to endorse on the
grid attached hereto, or on a continuation thereof, each
Eurodollar Rate Loan and each payment, prepayment or conversion
with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Eurodollar Note evidences Loans made under, and
is entitled to the benefits of, the Secured Credit Agreement,
dated as of May _ , 1994, among the Revolver Borrowers and the
Bank, as the same may be amended from time to time. Reference
is made to such Credit Agreement, as so amended, for provisions
relating to the prepayment and the acceleration of the maturity
hereof. This Eurodollar Note is also entitled to the benefits
of the Guarantor Security Agreement.
This Eurodollar Note shall be construed in accordance
with and governed by the law of the State of New York (without
giving effect to its choice of law principles).
OCEAN STATE POWER
By JMC Ocean State Corporation,
its General Partner
By ____________________________
Name:
Title:
OCEAN STATE POWER II
By JMC Ocean State Corporation,
its General Partner
By ____________________________
Name:
Title:
GRID
EURODOLLAR NOTE
_________________________________________________________________
_____________
Amount of
Amount of Principal Paid, Unpaid Principal
Domestic Prepaid or Amount of
Notation
Date Rate Loan Converted Domestic Note
Made By
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
_________________________________________________________________
___________
OCEAN STATE POWER
OCEAN STATE POWER II
DOMESTIC NOTE
May _, 1994
FOR VALUE RECEIVED, OCEAN STATE POWER and OCEAN STATE
POWER II (together, the "Revolver Borrowers") hereby promise to
pay to the order of THE BANK OF NEW YORK (the "Bank") the
principal amount of Dollars ($ ), or, if
less, the principal amount of the Domestic Rate Loans
outstanding, on the dates and in the amounts specified in
Section 1.04 of the Credit Agreement referred to below, and to
pay interest on such principal amount on the dates and at the
rates specified in section 1.03 of such Credit Agreement. All
payments due the Bank hereunder shall be made to the Bank at the
place, in the type of money and funds and in the manner
specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the
grid attached hereto, or on a continuation thereof, each
Domestic Rate Loan and each payment, prepayment or conversion
with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Domestic Note evidences Loans made under, and is entitled to the benefits
of, the Secured Credit Agreement, dated
as of May _ , 1994, among the Revolver Borrowers and the Bank,
as the same may be amended from time to time. Reference is made
to such Credit Agreement, as so amended, for provisions relating
to the prepayment and the acceleration of the maturity hereof.
This Domestic Note is also entitled to the benefits of the
Guarantor Security Agreement.
This Domestic Note shall be construed in accordance
with and governed by the law of the State of New York (without
giving effect to its choice of law principles).
OCEAN STATE POWER
By JMC Ocean State Corporation, its
General Partner
By ____________________________
Name:
Title:
OCEAN STATE POWER II
By JMC Ocean State Corporation, its
General Partner
By ____________________________
Name:
Title:
GRID
DOMESTIC NOTE
Amount of
Amount of Principal Paid, Unpaid Principal
Domestic Prepaid or Amount of Notation
Date Rate Loan Converted Domestic Note Made By
OCEAN STATE POWER
OCEAN STATE POWER II
EURODOLLAR NOTE
May _, 1994
FOR VALUE RECEIVED, OCEAN STATE POWER AND OCEAN STATE
POWER II (together, the "Revolver Borrowers") hereby promise to
pay to the order of THE BANK OF NEW YORK (the "Bank") the
principal amount of Dollars
($ ), or, if less, the principal amount of the
Eurodollar Rate Loans outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement
referred to below, and to pay interest on such principal amount
on the dates and at the rates specified in Section 1.03 of such
Credit Agreement. All payments due the Bank hereunder shall be
made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.11 of such Credit
Agreement.
Each holder hereof is authorized to endorse on the
grid attached hereto, or on a continuation thereof, each
Eurodollar Rate Loan and each payment, prepayment or conversion
with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Eurodollar Note evidences Loans made under, and
is entitled to the benefits of, the Secured Credit Agreement,
dated as of May _ , 1994, among the Revolver Borrowers and the
Bank, as the same may be amended from time to time. Reference
is made to such Credit Agreement, as so amended, for provisions
relating to the prepayment and the acceleration of the maturity
hereof. This Eurodollar Note is also entitled to the benefits
of the Guarantor Security Agreement.
This Eurodollar Note shall be construed in accordance
with and governed by the law of the State of New York (without
giving effect to its choice of law principles).
OCEAN STATE POWER
By JMC Ocean State Corporation, its
General Partner
By ____________________________
Name:
Title:
OCEAN STATE POWER II
By JMC Ocean State Corporation, its
General Partner
By ____________________________
Name:
Title:
GRID
EURODOLLAR NOTE
Amount of
Amount of Principal Paid, Unpaid Principal
Domestic Prepaid or Amount of Notation
Date Rate Loan Converted Domestic Note Made By
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Supplement
to
Guarantor Security Agreement
May _____, 1994
State Street
Bank and Trust
Company
Corporate Trust Department
5th Floor
One Heritage Drive
North Quincy, Massachusetts 02171-2128
Attention:
Ocean State Power
P.O. BOX 561
Harrisville, Rhode Island 02830
Attention: General Manager
Ocean State Power II
P.O. BOX 561
Harrisville, Rhode Island 02830
Attention: General Manager
Reference is made to that certain Security Agreement dated as
of October 19, 1992 (as amended, modified or supplemented, the
"Security Agreement") among Ocean State Power and Ocean State
Power II (collectively, the "Guarantors"), the noteholders
referred to therein (the "Holders") and State Street Bank and
Trust Company (in its capacity as Collateral Agent and together
with its successors and assigns in such capacity, the
"Collateral Agent"). Capitalized terms used herein and not
defined herein shall have the meanings assigned thereto in the
Security Agreement.
The undersigned intends to extend credit to one or both of the Obligors on
substantially the terms and conditions set forth in
the agreements and other instruments attached hereto as Annex A
and requests (1) that the undersigned be designated as an
Additional Creditor under the Security Agreement and (2) that
such agreements and instruments be designated as Additional
Agreements under the Security Agreement. By its execution and
delivery of this letter, the undersigned agrees to be bound by
all of the terms of the Security Agreement as a Holder
thereunder.
The address of the undersigned for notices delivered under
14.1 of the Security Agreement is:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: John W. Hall
Vice President
Thank you for your cooperation.
THE BANK OF NEW YORK
By___________________
Name:
Title:
Exhibit E-2 to Form U-1
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PUBLIC UTILITIES COMMISSION
IN RE: PETITION FILING OF OCEAN STATE :
POWER AND OCEAN STATE POWER II SEEKING : DOCKET NO. D-93-11
APPROVAL UNDER R.I.G.L. SS 39-3-15 :
THROUGH 39-3-17 FOR A REVOLVING CREDIT :
FACILITY :
REPORT AND ORDER
On November 15, 1993, Ocean State Power ("OSP") and Ocean State
Power II ("OSP II") filed a petition with the Rhode Island
Public Utilities Commission, Division of Public Utilities and
Carriers ("Division") seeking authority to establish a revolving
credit facility. The filing was made pursuant to Rhode Island
General Laws, Sections 39-3-15 through 39-3-17. The petition
states that OSP and OSP II propose to obtain from a commercial
lending institution a credit facility which will enable OSP and
OSP II to borrow up to a maximum of $25,000,000 on a revolving
basis to fund capital expenditures, to pay transaction costs and
to provide liquidity for the operation of a two-unit,
500-megawatt-combined-cycle natural gas-fired electric
generating facility located in Burrillville, Rhode Island. OSP
and OSP II each own one unit at the facility (Applicant's Exh.
1).
According to the petition, either OSP or OSP II may borrow under
the revolving credit authority, up to an aggregate maximum of
$25,000,000. The repayment obligation will be the joint and
several obligation of both OSP and OSP II. The revolving
credit authority will have a final maturity date of seven years
after the date of the initial borrowing. Other terms and
details provide that:
0 Principal borrowings will mature on the final maturity
date;
0 Interest on principal borrowings will bear interest at
a rate not to exceed 2 percent per annum plus the Base
Rate in effect from time to time or, at the option of
OSP and OSP II, at a rate not to exceed 4.5 percent per
annum plus the Eurodollar rate in effect from time to time;
0 Interest on Base Rate borrowings will be payable monthly
in arrears and at the final maturity date;
0 Interest on Eurodollar borrowings of less than three
months will be payable on the last day of the relevant
period and at the final maturity date;
0 Interest on Eurodollar borrowings of greater than three
months shall be payable quarterly in arrears, at the
last day of the relevant interest period and at the
final maturity date;
0 Borrowings may be prepaid and reborrowed at any time by
OSP and/or OSP II prior to the final maturity date without
penalty or premium; and
0 That OSP and OSP II anticipate that they will request
proposals for the revolving credit authority from not
less than four commercial banks or financial
institutions (Id.).
In response to the petition filing, the Division scheduled and
conducted a public hearing on March 23, 1994, at the Division's
offices located at 100 Orange Street in Providence. During that
hearing the following individuals entered appearances:
FOR OSP AND OSP II: Richard A. Sherman, Esq.
FOR THE DIVISION'S Charles M. Brown
ADVOCACY SECTION: Assistant Chief Accountant
In support of its petition, OSP and OSP II proffered the
testimony of Mr. Richard H. King, Jr., Vice President. Mr. King
sponsored the petition filing package and authenticated its
contents. Mr. King also answered several questions posed by the
Division's Advocacy Section and the undersigned hearing officer.
FINDINGS
After a thorough examination of the record in this matter, the
Division finds the petition filing of OSP and OSP II, seeking
authority to establish a revolving credit facility, reasonable
and in the best interest of ratepayers. The Division concurs
with the Petitioners' rationale that:
"... it is prudent to have a revolving credit facility as an
additional source of liquidity... since one never knows when a
sudden need for cash may arise for an unexpected repair or other
kind of situation and clearly the revenues from the power sales
agreements are, you know, strictly related to the amount of
power sold, so perhaps the timing of cash flow may not be
sufficient at a given time" (T. 10); and that:
"... efficient operation helps reduce and keep to a minimum our
operating costs and those costs are passed through to the
ratepayers and therefore by keeping the facility operating in an
efficient manner, ultimately we are producing the power for
less" (T. 18).
Accordingly, it is
( 14455 ) ORDERED:
1. That the November 15, 1993 petition filing by OSP and OSP
II, which seeks authority to establish a revolving credit
facility which will enable OSP and OSP II to borrow up to a
maximum of $25,000,000 on a revolving basis to fund capital
expenditures, to pay transaction costs and to provide liquidity
for their operation, is hereby granted.
2. That the Division hereby limits approval of the instant
request to the terms and details identified herein.
DATED AND EFFECTIVE AT PROVIDENCE, RHODE ISLAND ON MAY 2, 1994.
DIVISION OF PUBLIC UTILITIES
AND CARRIERS
/s/John Spirito, Jr., Esq.
John Spirito, Jr., Esq.
Hearing Officer
/s/James J. Malachowski
James J. Malachowski
Administrator
Exhibit E-3 to Form U-1
May 13, 1994
Energy Facility Siting Board
Attn.: Douglas Hartley, Coordinator
100 Orange Street
Providence, Rhode Island 02903
Re: Ocean State Power
Docket No. S.B. 87-1
Dear Mr. Hartley:
On behalf of Ocean State Power, we enclose for filing with
the Board the Report and Order of the Division of Public Utilities and Carriers
dated May 2, 1994 in its Docket No. D-93-11 approving the petition of Ocean
State Power and Ocean State Power II to establish a revolving
credit facility.
If you have any questions, please feel free to call me.
Sincerely yours,
Richard A. Sherman
With enclosure
CC: Mark Segel (w/enc.)
Peter Meier, Esq. (w/enc.)
Exhibit F to Form U-1
Dickstein, Shapiro & Morin, L.L.P.
2101 L Street, N.W.
Washington, D.C. 20037
202-785-9700
June 14, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: File No. 70-8373 - Ocean State Power
and Ocean State Power II
Gentlemen:
As counsel to Ocean State Power ("OSP") and Ocean State Power II
("OSP II"), we are furnishing this opinion to the Securities and
Exchange Commission (the "Commission") in connection with the
Application/Declaration on Form U-1 filed by OSP and OSP II on
March 8, 1994 (the "Original Application"), as amended by
Amendment No. 1 (the Original Application as so amended, the
"Application/Declaration") under the Public Utility Holding
Company Act of 1935, as amended (the "Act"), File No. 70-8373.
The Application/Declaration seeks the Commission's authorization
of OSP's and OSP II's (collectively, the "Applicants") proposed
incurrence of up to $25,000,000 aggregate principal amount of
secured revolving debt through the issuance of notes with
maturities not in excess of seven (7) years from the date of
initial borrowings (collectively, the "Proposed Transaction,"
but not including the transactions over which the Applicants
have requested that the Commission reserve its jurisdiction),
the proceeds of which will be used to fund capital expenditures,
to pay transaction costs and other costs in connection with the
Proposed Transaction, and to provide liquidity in general. We
are familiar with the proceedings to date with respect to the
Proposed Transaction and have examined such records, documents
and matters of law and satisfied ourselves as to such matters of
fact as we have considered relevant for the purposes of this
opinion.
It is our opinion, subject to the additional qualifications and
limitations hereinafter stated, that in the event that the
Proposed Transaction is consummated in accordance with the
Application/Declaration, and subject to appropriate action by
the Commission under the Act:
All State laws applicable to the Proposed Transaction will have
been complied with.
Applicants are each general partnerships duly formed and validly
existing under the laws of the State of Rhode Island.
Notes executed by the Applicants pursuant to the Proposed
Transaction will be valid and binding obligations of the
Applicants in accordance with these terms.
Consummation of the Proposed Transaction will not violate the
legal rights of the holders of any securities of OSP, OSP II or
any of their respective associate companies.
Our opinions set forth above are subject to the following
additional qualifications and limitations:
In rendering our opinion in paragraph (a) and (b) above, we have
relied solely upon the opinion of Rhode Island counsel to OSP
and OSP II addressed to us, dated as of the date hereof, without
independently verifying the matters covered therein, and our
opinion is subject to the qualifications and limitations set
forth therein. We express no opinion with respect to the
finality of any order or approval given under State law with
respect to the Proposed Transaction.
Our opinion in paragraph (c) with respect to the enforceability
of the notes referred to therein is subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, and other
similar laws relating to or affecting creditors generally and
general principles of equity, regardless of whether enforcement
is sought in proceedings at law or equity.
Our opinion in paragraph (d) above, insofar as it relates to the
holders of securities of the Applicants, is limited to legal
rights created under the agreements pursuant to which such
securities are issued and outstanding and, insofar as it relates
to the holders of securities of any associate company other than
the Applicants, is limited to our actual knowledge, without
independent investigation.
We express no opinion with respect to the transactions over
which the Applicants have requested that the Commission reserve
its jurisdiction. We understand that any such transactions will
be the subject of one or more supplemental filings by the
Applicants with the Commission.
We hereby consent to the filing of this opinion as part of the
Application/Declaration.
Very truly yours,
/s/ Dickstein, Shapiro & Morin, L.L.P.
Exhibit G to Form u-1
SCHEDULE OF ESTIMATED FEES AND EXPENSES
The estimated fees and expenses to be incurred by the Applicants in
connection with the consummation of the transactions proposed
in this Application/Declaration are set forth below.
BNY Fees and Expenses1 $ 1,000
Legal Counsel2 $ 96,000
Administrative Fees and Expenses3 $150,000
Other Fees4 $ 3,000
Total $250,000
________________
1 Includes a $0 closing fee and estimated reimbursable expenses
of $1,000 payable to BNY.
2 Includes fees payable to BNY's counsel, and the Applicants'
finance counsel, project counsel and local counsel.
3 Includes administrative fees and expenses for services
associated with the financing payable to J. Makowski Management Corporation.
4 Payment to Collateral Agent.
OCEAN STATE POWER
BALANCE SHEET
AUDITED
DEC. 31, 1993
PRIOR TO REVOLVADJUSTMENTS (A) PRO FORMA
---------------------------------------------
ELECTRIC PLANT $230,857,000 $9,875,000 $240,732,000
LESS ACCUMULATED DEP $34,114,000 $0 $34,114,000
---------------------------------------------
NET ELEC PLANT IN PROCESS $196,743,000 $9,875,000 $206,618,000
---------------------------------------------
CURRENT ASSETS
CASH SITE FUND $694,000 $0 $694,000
RECEIVABLES $17,259,000 $0 $17,259,000
FUEL INVENTORY $1,489,000 $0 $1,489,000
SPARE PARTS $3,265,000 $0 $3,265,000
PREPAID EXPENSE $156,000 $0 $156,000
---------------------------------------------
$22,863,000 $0 $22,863,000
DEFERRED CHARGES AND OTHER ASSETS
PREPAID RENT $0 $0 $0
UNAMORTIZED DEBT EXPENSE $3,235,000 $125,000 $3,360,000
SITE RESTORATION FUND $1,975,000 $0 $1,975,000
OTHER $807,000 $0 $807,000
---------------------------------------------
$6,017,000 $125,000 $6,142,000
---------------------------------------------
TOTAL ASSETS $225,623,000 $10,000,000 $235,623,000
=============================================
AUDITED
DEC. 31, 1993
PRIOR TO REVOLVADJUSTMENTS (A) PRO FORMA
--------------------------------------------
CAPITALIZATION
PARTNERS' CAPITAL $97,792,000 $0 $97,792,000
LONG-TERM DEBT $98,004,000 $0 $98,004,000
REVOLVER $0 $10,000,000 $10,000,000
--------------------------------------------
$195,796,000 $10,000,000 $205,796,000
--------------------------------------------
CURRENT LIABILITIES
CURRENT MAT OF LONG-TERM DEBT $5,998,000 $0 $5,998,000
ACCRUED INTEREST ON DEBT $348,000 $0 $348,000
CURRENT PAYABLES $5,605,000 $0 $5,605,000
--------------------------------------------
$11,951,000 $0 $11,951,000
--------------------------------------------
RESERVES AND DEFERRED CREDITS
DEFERRED FED INCOME TAXES $8,548,000 $0 $8,548,000
UNAMORTIZED ITC $6,008,000 $0 $6,008,000
SITE RESTORATION $1,975,000 $0 $1,975,000
DEFERRED REVENUE $0 $0 $0
DEFERRED RENT REVENUE $1,345,000 $0 $1,345,000
--------------------------------------------
$17,876,000 $0 $17,876,000
--------------------------------------------
TOTAL PARTNERS' CAP AND LIAB $225,623,000 $10,000,000 $235,623,000
============================================
___ __________________________
(A) Adjustment of $9,875,000 represents capital expenditures which are financed
by the Revolver.
Adjustment of $125,000 represents OSP's 50% share of the estimated
transaction costs which are financed by the Revolver.
Adjustment of $10,000,000 represents total amount financed by the Revolver.
Note that Revolver borrowings of OSP are projected to be greater than
Revolver borrowings of OSP II because capital expenditures which are common
to both plants are typically owned by OSP and leased to OSP II. Uncommon
capital expenditures are owned separately by each plant.
AUDITED
DEC. 31, 1993
PRIOR TO REVOLVADJUSTMENTS (A) PRO FORMA
---------------------------------------------
ELECTRIC PLANT $175,792,000 $4,875,000 $180,667,000
LESS ACCUMULATED DEP $19,693,000 $0 $19,693,000
---------------------------------------------
NET ELEC PLANT IN PROCESS $156,099,000 $4,875,000 $160,974,000
---------------------------------------------
CURRENT ASSETS
CASH SITE FUND $2,218,000 $0 $2,218,000
RECEIVABLES $18,160,000 $0 $18,160,000
FUEL INVENTORY $1,489,000 $0 $1,489,000
SPARE PARTS $3,268,000 $0 $3,268,000
PREPAID EXPENSE $135,000 $0 $135,000
---------------------------------------------
$25,270,000 $0 $25,270,000
DEFERRED CHARGES AND OTHER ASSETS
PREPAID RENT $1,343,000 $0 $1,343,000
UNAMORTIZED DEBT EXPENSE $3,341,000 $125,000 $3,466,000
SITE RESTORATION FUND $1,462,000 $0 $1,462,000
OTHER $243,000 $0 $243,000
---------------------------------------------
$6,389,000 $125,000 $6,514,000
---------------------------------------------
TOTAL ASSETS $187,758,000 $5,000,000 $192,758,000
=============================================
AUDITED
DEC. 31, 1993
PRIOR TO REVOLVADJUSTMENTS (A) PRO FORMA
------------------------------------------
CAPITALIZATION
PARTNERS' CAPITAL $84,903,000 $0 $84,903,000
LONG-TERM DEBT $84,004,000 $0 $84,004,000
REVOLVER $0 $5,000,000 $5,000,000
------------------------------------------
$168,907,000 $5,000,000 $173,907,000
------------------------------------------
CURRENT LIABILITIES
CURRENT MAT OF LONG-TERM DEBT $5,141,000 $0 $5,141,000
ACCRUED INTEREST ON DEBT $299,000 $0 $299,000
CURRENT PAYABLES $8,138,000 $0 $8,138,000
------------------------------------------
$13,578,000 $0 $13,578,000
------------------------------------------
RESERVES AND DEFERRED CREDITS
DEFERRED FED INCOME TAXES $3,811,000 $0 $3,811,000
UNAMORTIZED ITC $0 $0 $0
SITE RESTORATION $1,462,000 $0 $1,462,000
DEFERRED REVENUE $0 $0 $0
DEFERRED RENT REVENUE $0 $0 $0
------------------------------------------
$5,273,000 $0 $5,273,000
------------------------------------------
TOTAL PARTNERS' CAP AND LIAB $187,758,000 $5,000,000 $192,758,000
==========================================
___ __________________________
(A) Adjustment of $4,875,000 represents capital expenditures which are financed
by the Revolver.
Adjustment of $125,000 represents OSP's 50% share of the estimated
transaction costs which are financed by the Revolver.
Adjustment of $5,000,000 represents total amount financed by the Revolver.
Note that Revolver borrowings of OSP are projected to be greater than
Revolver borrowings of OSP II because capital expenditures which are common
to both plants are typically owned by OSP and leased to OSP II. Uncommon
capital expenditures are owned separately by each plant.
Page 1-b
AUDITED
YEAR ENDED
DEC. 31, 1993
PRIOR TO REVOLVADJUSTMENTS (A) PRO FORMA
------------------------------ ------------
ELECTRIC OPERATING REVENUES $102,939,000 $487,500 $103,426,500
OPERATING EXPENSES:
FUEL $44,506,000 $0 $44,506,000
OPERATING EXPENSE $9,094,000 $0 $9,094,000
MAINTENANCE EXPENSE $4,496,000 $0 $4,496,000
DEPRECIATION AND SITE RESTORATION $12,192,000 $0 $12,192,000
INCOME TAXES PAYABLE BY PARTNERS $7,395,000 $0 $7,395,000
PAYMENTS IN LIEU OF TAXES $1,529,000 $0 $1,529,000
------------------------------ ------------
OPERATING INCOME $23,727,000 $487,500 $24,214,500
OTHER INCOME (EXPENSE):
INTEREST INCOME $96,000 $0 $96,000
OTHER, NET $0 $0 $0
------------------------------ ------------
$96,000 $0 $96,000
INCOME BEFORE INTEREST CHARGES $23,823,000 $487,500 $24,310,500
INTEREST CHARGES:
LONG-TERM DEBT $9,070,000 $487,500 $9,557,500
NET INCOME $14,753,000 $0 $14,753,000
============================== ============
3- Month LIBOR rate 4.50%
___ __________________________
(A) Adjustments represent Ocean State Power's interest costs on its borrowings
under the Revolver.
Interest is calculated based on a 3-month LIBOR rate of 4.50% (as of 5-25-
94) plus a spread of 37.5 basis points.
As long-term debt costs are passed through to the power buyers, the
operating revenues increase by exactly the amount of the additional interest
costs and there is no net effect on net income.
Financial Statements
Page 2-b
OCEAN STATE POWER II
STATEMENT OF INCOME
AUDITED
YEAR ENDED
DEC. 31, 1993
PRIOR TO REVOLV ADJUSTMENTS (A) PRO FORMA
------------------------------ ------------
ELECTRIC OPERATING REVENUES $104,513,000 $243,750 $104,756,750
OPERATING EXPENSES:
FUEL $51,737,000 $0 $51,737,000
OPERATING EXPENSE $12,870,000 $0 $12,870,000
MAINTENANCE EXPENSE $2,218,000 $0 $2,218,000
DEPRECIATION AND SITE RESTORATION $9,409,000 $0 $9,409,000
INCOME TAXES PAYABLE BY PARTNERS $6,731,000 $0 $6,731,000
PAYMENTS IN LIEU OF TAXES $1,413,000 $0 $1,413,000
--------------- ------------ ------------
OPERATING INCOME $20,135,000 $243,750 $20,378,750
OTHER INCOME (EXPENSE):
INTEREST INCOME $108,000 $0 $108,000
OTHER, NET $0 $0 $0
--------------- ------------ -----------
$108,000 $0 $108,000
INCOME BEFORE INTEREST CHARGES $20,243,000 $243,750 $20,486,750
INTEREST CHARGES:
LONG-TERM DEBT $7,743,000 $243,750 $7,986,750
NET INCOME $12,500,000 $0 $12,500,000
=============== ============ =============
3- Month LIBOR rate 4.50%
___ __________________________
(A) Adjustments represent Ocean State Power's interest costs on its borrowings
under the Revolver.
Interest is calculated based on a 3-month LIBOR rate of 4.50% (as of 5-25-
94) plus a spread of 37.5 basis points.
As long-term debt costs are passed through to the power buyers, the
operating revenues increase by exactly the amount of the additional interest
costs and there is no net effect on net income.
