May 12, 1995
VIA EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Public Service Company of New Hampshire
Application/Declaration with Respect to Credit Facility
Substitution
File No. 70-8036
Ladies and Gentlemen:
Enclosed for filing via EDGAR is a Certificate as to Consummation of
Transaction with respect to the transactions described therein and relating
to the above-referenced Application/Declaration, as amended, of Public
Service Company of New Hampshire ("PSNH"). A "past tense" opinion of counsel
to PSNH was filed with the Securities and Exchange Commission on October 7,
1992.
Sincerely,
/s/Richard J. Wasserman
Day, Berry & Howard
CityPlace I
Hartford, CT 06103-3499
(203) 275-0142
(203) 275-0343 - Fax
RJW:wjr
Enclosure
cc (w/enc.): David R. McHale
Kelly A. Maitland
Jeffrey C. Miller, Esq.
<PAGE>
UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
)
)
IN THE MATTER OF )
)
PUBLIC SERVICE COMPANY ) CERTIFICATE
OF NEW HAMPSHIRE ) AS TO
) CONSUMMATION
) OF TRANSACTION
File No. 70-8036 )
)
(Public Utility Holding Company )
Act of 1935) )
Reference is hereby made to (i) the Application/Declaration on Form U-
1, as amended, filed by Public Service Company of New Hampshire ("PSNH") in
the above-referenced proceeding (the "Declaration"), including Post-Effective
Amendment No. 1 thereto ("Post-Effective Amendment No. 1"), and (ii) the
Order of the Securities and Exchange Commission set forth in Release No. 35-
25923 (November 12, 1993) permitting Post-Effective Amendment No. 1 to become
effective (the "Post-Effective Order"). Capitalized terms used herein and
not otherwise defined are used as defined in the Declaration.
On May 2, 1995, (i) the Barclays Letter of Credit was replaced by a
substitute Letter of Credit (the "1995 Barclays Series D Letter of Credit")
issued by Barclays and (ii) the Series E Citibank Letter of Credit was
replaced by a substitute Letter of Credit (the "1995 Swiss Bank Series E
Letter of Credit") issued by Swiss Bank Corporation, New York Branch ("Swiss
Bank").
The 1995 Barclays Series D Letter of Credit was issued pursuant to a new
Second Series D Letter of Credit and Reimbursement Agreement (the "1995
Barclays Series D Reimbursement Agreement") between Barclays, PSNH, and the
participating banks referred to therein. The 1995 Swiss Bank Series E Letter
of Credit was issued pursuant to a new Second Series E Letter of Credit and
Reimbursement Agreement (the "1995 Swiss Bank Series E Reimbursement
Agreement") between Swiss Bank, PSNH, and the participating banks referred to
therein. Copies of the 1995 Barclays Series D Reimbursement Agreement and
the 1995 Swiss Bank Series E Reimbursement Agreement (including as exhibits
thereto the forms of the related Letters of Credit) are filed herewith as
Exhibits B.4(1995) and B.5(1995), respectively.
Like the Barclays Reimbursement Agreement and the Series E Citibank
Reimbursement Agreement, each of the 1995 Barclays Series D Reimbursement
Agreement and the 1995 Swiss Bank Series E Reimbursement Agreement obligate
PSNH to pay annual letter of credit commissions and fronting fees, to pay
certain transfer, drawing, cancellation, and other fees, and to comply with
certain business covenants. The annual letter of credit commissions and
fronting fees payable under the 1995 Barclays Series D Reimbursement
Agreement and the 1995 Swiss Bank Series E Reimbursement Agreement, as well
as the comparable fees that were payable under the Barclays Reimbursement
Agreement and the Series E Citibank Reimbursement Agreement, are set forth on
Exhibit K-1(1995) filed herewith. The business covenants contained in the
1995 Barclays Series D Reimbursement Agreement and the 1995 Swiss Bank Series
E Reimbursement Agreement are substantially similar to those that were
contained in both the Barclays Reimbursement Agreement and the Series E
Citibank Reimbursement Agreement except that (i) certain restrictions on
sales of receivables, on investments in other persons, and affecting certain
of PSNH's material contracts were eliminated and (ii) the covenant that
required PSNH to maintain its ratio of common equity to total capitalization
at not less than 0.230:1 (and, for Series D, would have required PSNH to
maintain such ratio at not less that 0.250:1 on and after July 1, 1995) was
revised to require PSNH to maintain such ratio at not less than .270:1
through June 30, 1996, at not less than 0.285:1 through June 30, 1997, and at
not less than 0.300:1 thereafter. As of December 31, 1994, PSNH's ratio of
common equity to total capitalization was 0.327:1.
Like the Barclays Reimbursement Agreement and the Series E Citibank
Reimbursement Agreement, each of the 1995 Barclays Series D Reimbursement
Agreement and the 1995 Swiss Bank Series E Reimbursement Agreement obligate
PSNH to reimburse Barclays or Swiss Bank for any amounts drawn under the
respective Letter of Credit. The 1995 Barclays Series D Reimbursement
Agreement and the 1995 Swiss Bank Series E Reimbursement Agreement each
provide, like the former agreements, that all Letter of Credit drawings other
than drawings to pay the principal portion of the purchase price for
unremarketed tendered bonds are immediately reimbursable by PSNH to Barclays
or Swiss Bank. Drawings to pay the principal portion of the purchase price
for unremarketed tendered bonds will be treated as Tender Advances. Under
each of the 1995 Barclays Series D Reimbursement Agreement and the 1995 Swiss
Bank Series E Reimbursement Agreement, Tender Advances will bear interest
until paid at the rates specified therein, which rates, as well as the
comparable rates that were payable under the Barclays Reimbursement Agreement
and the Series E Citibank Reimbursement Agreement, are set forth on Exhibit
K-1(1995) filed herewith. Certain of PSNH's obligations to Barclays under
the 1995 Barclays Series D Reimbursement Agreement and to Swiss Bank under
the 1995 Swiss Bank Series E Reimbursement Agreement, including without
limitation its obligations to reimburse the banks for drawings made under the
Letters of Credit, are evidenced and secured by the Series F First Mortgage
Bonds and the Series G First Mortgage Bonds, respectively, in the same manner
that the similar obligations under the former agreements were secured.
The Series D credit facility substitution was accomplished by
termination of the Barclays Letter of Credit pursuant to the Series D Loan
and Trust Agreement and the Barclays Reimbursement Agreement, and by the
issuance of the 1995 Barclays Series D Letter of Credit. Similarly, the
Series E credit facility substitution was accomplished by termination of the
Series E Citibank Letter of Credit pursuant to the Series E Loan and Trust
Agreement and the Series E Citibank Reimbursement Agreement, and by the
issuance of the 1995 Swiss Bank Series E Letter of Credit. The Barclays
Reimbursement Agreement and the Series E Citibank Reimbursement Agreement
were also terminated and PSNH entered into the 1995 Barclays Series D
Reimbursement Agreement and the 1995 Swiss Bank Series E Reimbursement
Agreement.
Under the terms of the 1995 Barclays Series D Reimbursement Agreement
and the 1995 Swiss Bank Series E Reimbursement Agreement, PSNH paid an
aggregate up-front arrangement fee of $236,987 (0.100% of the amount
available to be drawn under the new Letters of Credit) to Barclays and Swiss
Bank at the time of issuance of the new Letters of Credit. In addition,
certain legal, rating agency, printing, and other fees were incurred by PSNH
in connection with the issuance of the two new Letters of Credit. An
itemized list of the estimated fees incurred by PSNH in connection with the
credit facility substitutions is set forth on Exhibit K-2(1995) filed
herewith.
PSNH consummated the credit facility substitution transactions described
above because (i) the Barclays Letter of Credit and the Series E Citibank
Letter of Credit were due to expire shortly and needed to be extended or
replaced and (ii) such transactions will result in annual net savings to PSNH
estimated at approximately $555,000, as set forth on Exhibit K-3(1995) filed
herewith.
Pursuant to the Public Utility Holding Company Act of 1935, as amended,
and Rule 24(a) thereunder, PSNH hereby certifies that the credit facility
substitution transactions described above have been carried out in accordance
with the terms and conditions of and for the purposes represented by Post-
Effective Amendment No. 1, and of the Post-Effective Order.
Dated: May 12, 1995
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
By______________________________/s/ Richard J. Wasserman
Richard J. Wasserman
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
<PAGE>
File No. 70-8036
INDEX TO EXHIBITS FILED WITH
CERTIFICATE AS TO CONSUMMATION OF TRANSACTION
of
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
B.4(1995) 1995 Barclays Series D Reimbursement Agreement (including
as an exhibit thereto the form of the related Letter of
Credit).
B.5(1995) 1995 Swiss Bank Series E Reimbursement Agreement
(including as an exhibit thereto the form of the related
Letter of Credit).
K-1(1995) Letter of Credit Fee Table.
K-2(1995) Estimated Expenses.
K-3(1995) Estimated Annual Net Savings.
File No. 70-8036
Exhibit B.4(1995)
[EXECUTION COPY]
SECOND SERIES D LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated as of May 1, 1995
Among
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
as Account Party
BARCLAYS BANK PLC, NEW YORK BRANCH
as Issuing Bank and as Agent
and
THE PARTICIPATING BANKS
REFERRED TO HEREIN
Relating to
The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series D)
Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1992 Tax-Exempt Series D)
<PAGE>
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. . . . . . . . . . . . 3
1.02 Computation of Time Periods. . . . . . . . .20
1.03 Accounting Terms . . . . . . . . . . . . . .20
1.04 Computations of Outstandings . . . . . . . .20
ARTICLE II
THE LETTER OF CREDIT
2.01 The Letter of Credit . . . . . . . . . . . .20
2.02 Termination of the Commitments . . . . . . .20
2.03 Commissions and Fees . . . . . . . . . . . .20
2.04 Reinstatement of the Letter of Credit. . . .21
2.05 Extension of the Stated Termination Date . .22
2.06 Modification of the Letter of Credit . . . .23
ARTICLE III
REIMBURSEMENT AND ADVANCES
3.01 Reimbursement on Demand . . . . . . . . . .24
3.02 Advances . . . . . . . . . . . . . . . . . .24
3.03 Interest on Advances . . . . . . . . . . . .26
3.04 Conversion of Term Advances . . . . . . . .27
3.05 Other Terms Relating to the
Making and Conversion of Advances . . .28
3.06 Prepayment of Advances . . . . . . . . . . .28
3.07 Participation; Reimbursement of Issuing Bank29
ARTICLE IV
PAYMENTS
4.01 Payments and Computations. . . . . . . . . .32
4.02 Default Interest . . . . . . . . . . . . . .34
4.03 Yield Protection . . . . . . . . . . . . . .34
4.04 Sharing of Payments, Etc.. . . . . . . . . .38
4.05 Taxes. . . . . . . . . . . . . . . . . . . .39
4.06 Obligations Absolute . . . . . . . . . . . .41
4.07 Evidence of Indebtedness . . . . . . . . . .42
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to the Issuance of
the Letter of Credit. . . . . . . . . . . .43
5.02 Additional Conditions Precedent to the Issuance of
the Letter of Credit . . . . . . . . . . . .49
5.03 Conditions Precedent to Initial Advances
and Conversions of Advances . . . . . . . .49
5.04 Conditions Precedent to Term Advances. . . .50
5.05 Reliance on Certificates . . . . . . . . . .51
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 Representations and Warranties of the Account
Party. . . . . . . . . . . . . . . . . .51
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
7.01 Affirmative Covenants. . . . . . . . . . . .55
7.02 Negative Covenants . . . . . . . . . . . . .57
7.03 Reporting Obligations. . . . . . . . . . . .61
<PAGE> ARTICLE VIII
DEFAULTS
8.01 Events of Default. . . . . . . . . . . . . .66
8.02 Remedies Upon Events of Default. . . . . . .68
8.03 Issuing Bank to Notify First Mortgage
Trustee, Others. . . . . . . . . . . . . . .69
ARTICLE IX
THE AGENT, THE PARTICIPATING BANKS
AND THE ISSUING BANK
9.01 Authorization of Agent; Actions of Agent
and Issuing Bank. . . . . . . . . . . . . .70
9.02 Reliance, Etc. . . . . . . . . . . . . . . .70
9.03 The Agent, the Issuing Bank and Affiliates .71
9.04 Participating Bank Credit Decision . . . . .71
9.05 Indemnification. . . . . . . . . . . . . . .72
9.06 Successor Agent. . . . . . . . . . . . . . .72
9.07 Issuing Bank . . . . . . . . . . . . . . . .73
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. . . . . . . . . . . . . . .73
10.02 Notices, Etc.. . . . . . . . . . . . . . . .74
10.03 No Waiver of Remedies. . . . . . . . . . . .75
10.04 Costs, Expenses and Indemnification. . . . .75
10.05 Right of Set-Off . . . . . . . . . . . . . .77
10.06 Binding Effect; Assignments and Participants78
10.07 Relation of the Parties; No Beneficiary. . .79
10.08 Issuing Bank Not Liable . . . . . . . . . .79
10.09 Confidentiality. . . . . . . . . . . . . . .80
10.10 Waiver of Jury Trial . . . . . . . . . . . .81
10.11 Governing Law. . . . . . . . . . . . . . . .81
10.12 Execution in Counterparts. . . . . . . . . .81
<PAGE>
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Rehearings
<PAGE>
EXHIBITS
Exhibit 1.01A - Form of Letter of Credit
Exhibit 1.01B - Form of Participation Assignment
Exhibit 1.01C - Form of Pledge Amendment
Exhibit 5.01A - Form of Opinion of Day, Berry & Howard, counsel to
the Account Party
Exhibit 5.01B - Form of Opinion of Rath, Young and Pignatelli, P.A.,
special New Hampshire counsel to the Account Party
Exhibit 5.01C - Form of Opinion of Assistant General Counsel of NUSCO
Exhibit 5.01D - Form of Opinion of Drummond Woodsum & MacMahon,
special Maine counsel to the Account Party
Exhibit 5.01E - Form of Opinion of Zuccaro Willis & Bent, special
Vermont counsel to the Account Party
Exhibit 5.01F - Form of Opinion of King & Spalding,
counsel to the Agent and the Issuing Bank
<PAGE>
SECOND SERIES D LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated as of May 1, 1995
THIS SECOND SERIES D LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made by and among:
(i) Public Service Company of New Hampshire, a corporation
duly organized and validly existing under the laws of
the State of New Hampshire (the "Account Party");
(ii) Barclays Bank PLC, New York Branch ("Barclays"), as
issuer of the Letter of Credit (the "Issuing Bank");
(iii) The Participating Banks (as hereinafter defined) from
time to time party hereto; and
(iv) Barclays as agent (together with any successor agent
hereunder, the "Agent") for such Participating Banks
and the Issuing Bank.
PRELIMINARY STATEMENT
The Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire (the "Issuer"), pursuant
to a Series D Loan and Trust Agreement, dated as of May 1, 1991 (the
"Original Indenture"), by and among the Issuer, the Account Party and State
Street Bank and Trust Company, as trustee (such entity, or its successor as
trustee, being the "Trustee"), previously issued $114,500,000 aggregate
principal amount of The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series D) (such bonds being herein referred
to as the "Taxable Bonds"). Pursuant to the Original Indenture, a First
Supplement thereto, dated as of December 1, 1992 and a Second Supplement
thereto, dated as of May 1, 1995 (the Original Indenture, as so supplemented
by such First Supplement and such Second Supplement and as the same may be
further supplemented, amended or modified from time to time with the written
consent of the Issuing Bank, being herein referred to as the "Indenture"),
the Issuer refunded $75,000,000 aggregate principal amount of the Taxable
Bonds through the issuance of $75,000,000 aggregate principal amount of
Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1992 Tax-Exempt Series D) (such bonds being herein referred to as the
"Existing Tax-Exempt Refunding Bonds"). The $39,500,000 aggregate principal
amount of Taxable Bonds remaining outstanding, the Existing Tax-Exempt
Refunding Bonds and any further Tax-Exempt Refunding Bonds (as defined in the
Indenture) that may be issued in accordance with the Indenture and this
Agreement to refund any of such remaining Taxable Bonds are hereinafter
referred to, collectively, as the "Bonds".
In connection with the original issuance of the Taxable
Bonds, the Account Party caused Citibank, N.A. ("Citibank") to issue a letter
of credit in support thereof in favor of the Paying Agent. Subsequently, the
Account Party caused Barclays to issue its Irrevocable Letter of Credit No.
833162, dated October 5, 1992, in substitution for the letter of credit
previously issued by Citibank, and, in connection therewith, the Account
Party entered into a Letter of Credit and Reimbursement Agreement, dated as
of October 1, 1992 (as amended, the "Existing Reimbursement Agreement") with
Barclays as issuing bank and agent thereunder and certain participating banks
referred to therein. Thereafter, in connection with the issuance of the
Existing Tax-Exempt Refunding Bonds, the Account Party caused Barclays to
issue its Amended and Restated Irrevocable Letter of Credit No. 833162, dated
December 17, 1992 and in a stated amount of $117,858,000 (the "Existing
Letter of Credit"), in support of the Taxable Bonds and the Existing Tax-
Exempt Refunding Bonds.
The Account Party now wishes to extend the Existing Letter
of Credit, and, in furtherance thereof, the Account Party has requested the
Issuing Bank to issue in replacement therefor its irrevocable letter of
credit in favor of the Paying Agent, in substantially the form of Exhibit
1.01A hereto (such letter of credit of the Issuing Bank, as it may from time
to time be extended or modified pursuant to the terms of this Agreement,
being the "Letter of Credit), in the amount of $117,858,000 (the "Stated
Amount), of which (i) $114,500,000 shall support the payment of principal of
the Bonds (or the portion of the purchase or redemption price of the Bonds
corresponding to principal), (ii) $3,358,000 shall support the payment of up
to 128 days' interest on the principal amount of Taxable Bonds (or the
portion of the purchase or redemption price of Taxable Bonds corresponding to
interest), computed at a maximum interest rate of 16% per annum on the basis
of the actual days elapsed and a year of 360 days, and up to 45 days'
interest on the principal amount of Existing Tax-Exempt Refunding Bonds (or
the portion of the purchase or redemption price of Existing Tax-Exempt
Refunding Bonds corresponding to interest), computed at a maximum interest
rate of 12% per annum on the basis of the actual days elapsed and a year of
365 (or 366) days, subject to modification as provided in Section 2.06
hereof, and (iii) $0.00 shall support the payment of premium on the Bonds.
The Issuing Bank has agreed to issue the Letter of Credit subject to the
terms and conditions set forth herein (including the terms and conditions
relating to the rights and obligations of the Participating Banks).
NOW, THEREFORE, in consideration of the premises and in
order to induce the Issuing Bank to issue the Letter of Credit and the
Participating Banks to participate in the Letter of Credit and make advances
hereunder, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. In addition to the
terms defined in the Preliminary Statement hereto, as used in this Agreement,
the following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Advances" means Initial Advances and Term Advances,
without differentiation; individually, an "Advance".
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly
or indirectly, the power to direct or cause the direction
of the management and policies of such entity, whether
through the ownership of voting securities, by contract or
otherwise.
"Agreement for Capacity Transfer" means the Agreement
for Capacity Transfer, dated as of December 1, 1989,
between The Connecticut Light and Power Company ("CL&P")
and the Account Party, as amended by the First Amendment to
Agreement for Capacity Transfer, dated as of May 1, 1992
between CL&P and the Account Party, which provides for
capacity transfers from the Account Party to CL&P.
"Alternate Base Rate" means, for any Interest Period or
any other period, a fluctuating interest rate per annum
equal at all times to the higher from time to time of:
(a) the rate of interest announced publicly by
Barclays in New York, New York, from time to time, as
Barclays' prime rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate from time to time;
plus, in either case, the Applicable Margin for Base Rate
Advances. Each change in the Alternate Base Rate shall
take effect concurrently with any change in such prime rate
or Federal Funds Rate, as the case may be.
"Applicable Commission" means, for any day, the
percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Applicable
Commission 0.50% 0.55% 0.60% 0.70%
Any change in the Applicable Commission caused by a change
in the Applicable Rating Level shall take effect at the
time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Participating Bank, (i)(A) such Participating Bank's
"Domestic Lending Office", in the case of a Base Rate
Advance, and (B) such Participating Bank's "Eurodollar
Lending Office", in the case of a Eurodollar Rate Advance,
in each case as specified opposite such Participating
Bank's name on Schedule I hereto (in the case of a
Participating Bank initially party to this Agreement) or in
the Participation Assignment pursuant to which such
Participating Bank became a Participating Bank (in the case
of any other Participating Bank), or (ii) such other office
or affiliate of such Participating Bank as such
Participating Bank may from time to time specify to the
Account Party and the Agent.
"Applicable Margin" means, for any day for any
outstanding Advance, the percentage per annum set forth
below in effect on such day, determined on the basis of the
Applicable Rating Level:
Type of Rating Rating Rating Rating
Advance Level I Level II Level III Level IV
Eurodollar
Rate 0.65% 0.70% 0.75% 1.00%
Base Rate 0.00% 0.00% 0.00% 0.00%
Any change in the Applicable Margin caused by a change in
the Applicable Rating Level shall take effect at the time
such change in the Applicable Rating Level shall occur.
"Applicable Rating Level" shall be determined at any
time and from time to time on the basis of the long-term
ratings of Moody's and S&P applicable at such time to the
Account Party's First Mortgage Bonds (or other senior
secured debt securities if no First Mortgage Bonds are then
outstanding) in accordance with the following:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Ratings by One rating is Both ratings One rating is All other
S&P/Moody's BBB/Baa2 or are BBB- BBB-/Baa3 or cases
higher; the /Baa3 higher; the
other is BBB- other is
/Baa3 or higher BB+/Ba1
The Applicable Rating Level shall be redetermined as and
when any change in the ratings used in the determination
thereof shall be announced by S&P or Moody's, as the case
may be.
"Arrangers" means BZW Division of Barclays Bank PLC and
SBC Capital Markets Inc.
"Available Amount" in effect at any time means the
maximum aggregate amount available to be drawn at such time
under the Letter of Credit, the determination of such
maximum amount to assume compliance with all conditions for
drawing and no reduction for (i) any amount drawn by the
Paying Agent to make a regularly scheduled payment of
interest on the Bonds (unless such amount will not be
reinstated under the Letter of Credit) or (ii) any amount
not available to be drawn because Bonds are held by or for
the account of the Account Party and/or in pledge for the
benefit of the Issuing Bank, but after giving effect,
nevertheless, to any reduction in the Stated Amount
effected pursuant to Section 2.06 hereof.
"Base Rate Advance" means an Advance in respect of
which the Account Party has selected in accordance with
Article III hereof, or this Agreement otherwise provides
for, interest to be computed on the basis of the Alternate
Base Rate.
"Bonds" has the meaning assigned to that term in the
Preliminary Statement.
"Business Day" means a day of the year that is not a
Sunday or legal holiday or a day on which banks are
authorized to close in New York City and, (i) if the
applicable Business Day relates to any Eurodollar Rate
Advance, is a day on which dealings are carried on in the
London interbank market and/or (ii) if the applicable
Business Day relates to any action to be taken by, or
notice furnished to or by, or payment to be made to or by,
the Trustee, the Paying Agent, the Remarketing Agent or the
First Mortgage Trustee, is a day on which (A) banking
institutions are not authorized pursuant to law to close,
(B) the corporate trust office of the First Mortgage
Trustee is open for business, (C) banking institutions in
all of the cities in which the principal offices of the
Issuing Bank, the Trustee, the Paying Agent, the First
Mortgage Trustee and, if applicable, the Remarketing Agent
are located are not required or authorized to remain closed
and (D) the New York Stock Exchange is not closed.
"Closing Date" means the Business Day upon which each
of the conditions precedent enumerated in Sections 5.01 and
5.02 hereof shall be fulfilled to the satisfaction of the
Agent, the Issuing Bank, the Participating Banks and the
Account Party. All transactions contemplated to occur on
the Closing Date shall occur contemporaneously on or prior
to May 2, 1995, at the offices of King & Spalding, 120 West
45th Street, New York, New York 10036, at 10:00 A.M. (New
York City time), or at such other place and time as the
parties hereto may mutually agree.
"CL&P" has the meaning assigned to that term in the
definition of Agreement for Capacity Transfer.
"Citibank" has the meaning assigned to that term in the
Preliminary Statement.
"Collateral" means all of the collateral in which
liens, mortgages or security interests are purported to be
granted by any or all of the Security Documents.
"Commitment" means, for each Participating Bank, such
Participating Bank's Percentage of the Available Amount.
"Commitments" shall refer to the aggregate of the
Commitments.
"Common Equity" means, at any date, an amount equal to
the sum of the aggregate of the par value of, or stated
capital represented by, the outstanding shares of common
stock of the Account Party and the surplus, paid-in, earned
and other, if any, of the Account Party.
"Confidential Information" has the meaning assigned to
that term in Section 10.09 hereof.
"Conversion", "Convert" or "Converted" each refers to a
conversion of Term Advances pursuant to Section 3.04
hereof, including, but not limited to any selection of a
longer or shorter Interest Period to be applicable to such
Term Advances or any conversion of a Term Advance as
described in Section 3.04(c) hereof.
"Credit Termination Date" means the date on which the
Letter of Credit shall terminate in accordance with its
terms.
"Debt" means, for any Person, without duplication, (i)
indebtedness of such Person for borrowed money, (ii)
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) obligations of
such Person to pay the deferred purchase price of property
or services, (iv) obligations of such Person as lessee
under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases (not including the Unit
Contract), (v) obligations (contingent or otherwise) of
such Person under reimbursement or similar agreements with
respect to the issuance of letters of credit, (vi) net
obligations (contingent or otherwise) of such Person under
interest rate swap, "cap, "collar or other hedging
agreements, (vii) obligations of such person to pay rent or
other amounts under leases entered into in connection with
sale and leaseback transactions involving assets of such
Person being sold in connection therewith, (viii)
obligations under direct or indirect guaranties in respect
of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through
(vii), above, and (ix) liabilities in respect of unfunded
vested benefits under ERISA Plans.
"Default Rate" means a fluctuating interest rate equal
at all times to 2% per annum above the Alternate Base Rate
in effect from time to time.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which
is a "commonly controlled entity" of the Account Party
within the meaning of the regulations under Section 414 of
the Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Multiemployer Plan" means a "multiemployer plan
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
an ERISA Multiemployer Plan) maintained for employees of
the Account Party or any ERISA Affiliate and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the
regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the
PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of
the Account Party or any of its ERISA Affiliates from an
ERISA Plan or an ERISA Multiemployer Plan during a plan
year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan or an
ERISA Multiemployer Plan under Section 4041 of ERISA, or
(iv) the institution of proceedings to terminate an ERISA
Plan or an ERISA Multiemployer Plan by the PBGC, or (v) any
other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or
ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means for any Interest Period for any
Eurodollar Rate Advances comprising part of the same Term
Borrowing, an interest rate per annum equal at all times
during such Interest Period to the sum of:
(i) the rate per annum (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum, if
such rate is not such a multiple) determined by the
Agent at which deposits in United States dollars in
amounts comparable to the Eurodollar Rate Advance of
Barclays comprising part of such Term Borrowing and for
comparable periods as such Interest Period are offered
by the principal office of Barclays in London, England
to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first
day of such Interest Period, plus
(ii)the Applicable Margin.
"Eurodollar Rate Advance" means an Advance in respect
of which the Account Party has selected in accordance with
Article III hereof, and this Agreement provides for,
interest to be computed on the basis of the Eurodollar
Rate.
"Eurodollar Reserve Percentage" of any Participating
Bank for each Interest Period for each Eurodollar Rate
Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall
be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D or
other regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement, without benefit of or credit
for proration, exemptions or offsets) for such
Participating Bank with respect to liabilities or assets
consisting of or including "eurocurrency liabilities"
having a term equal to such Interest Period.
"Event of Default" has the meaning assigned to that
term in Section 8.01.
"Existing Letter of Credit" has the meaning assigned to
that term in the Preliminary Statement.
"Existing Reimbursement Agreement" has the meaning
assigned to that term in the Preliminary Statement.
"Existing Tax-Exempt Refunding Bonds" has the meaning
assigned to that term in the Preliminary Statement.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not
so published on the next succeeding Business Day, the
average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Financing Agreements" means: (i) the $452,000,000
(original principal amount) Term Credit Agreement among the
Account Party, the Banks and Co-Agents named therein and
Citibank, as Administrative Agent; and (ii) the
$200,000,000 (original principal amount) Revolving Credit
Agreement among the Account Party, the Banks and Co-Agents
named therein, and Chemical Bank, as Administrative Agent;
in each case as amended modified or supplemented to the
date hereof and as the same may be further amended,
modified or supplemented from and after the date hereof.
"First Mortgage Bonds" means first mortgage bonds
issued or to be issued by the Account Party and secured,
directly or indirectly, collectively or severally, by one
or more first-priority liens on all or part of the
Indenture Assets pursuant to the First Mortgage Indenture
or another indenture in form and substance satisfactory to
the Majority Lenders. For purposes hereof, all or part of
the First Mortgage Bonds may be issued as collateral for
pollution control revenue bonds or industrial revenue
bonds, whether taxable or tax exempt issued by the Account
Party or by a governmental authority at the Account Party's
request.
"First Mortgage Indenture" means the General and
Refunding Mortgage Indenture, between the Account Party and
New England Merchants National Bank, as trustee and to
which First Fidelity Bank, National Association, New
Jersey, is to be successor trustee, dated as of August 15,
1978, as amended and supplemented through the date hereof
and as the same may thereafter be amended, supplemented or
modified from time to time.
"First Mortgage Trustee" means the trustee from time to
time under the First Mortgage Indenture.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body required in
connection with either (i) the execution, delivery or
performance of the Rate Agreement, any Loan Document,
Related Document, Financing Agreement or Significant
Contract, (ii) the grant and perfection of any security
interest, lien or mortgage contemplated by the Security
Documents, or (iii) the nature of the Account Party's
business as conducted or the nature of the property owned
or leased by it. For purposes of this Agreement, Chapter
362-C of the Revised Statutes Annotated of New Hampshire,
in effect on the date hereof, shall be deemed to be a
Governmental Approval.
"Hazardous Substance" means any waste, substance or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Indenture" has the meaning assigned to that term in
the Preliminary Statement.
"Indenture Assets" means fixed assets of the Account
Party (including related Governmental Approvals and
regulatory assets) which from time to time are subject to
the first-priority lien under the First Mortgage Indenture.
"Information Memorandum" means the Offering Memorandum,
dated March 1995 regarding the Account Party, as
distributed to the Issuing Bank and the Participating
Banks, including, without limitation, the Annual Reports of
the Account Party and NU for the fiscal year ended December
31, 1993, the Quarterly Report of the Account Party on Form
10-Q for the fiscal quarter ended September 30, 1994 and
the other financial data included therein.
"Initial Advance" has the meaning assigned to that term
in Section 3.02(a) hereof.
"Initial First Mortgage Bonds" means First Mortgage
Bonds (including First Mortgage Bonds securing the Bonds
and First Mortgage Bonds securing other Pollution Control
Revenue Bonds of the Issuer for which the Account Party is
liable) in an aggregate principal amount of $858,985,000
issued in connection with the effectiveness of the Plan.
"Initial Repayment Date" has the meaning assigned to
that term in Section 3.02(a) hereof.
"Interest Component" has the meaning assigned to that
term in the Letter of Credit.
"Interest Drawing" has the meaning assigned to that
term in the Letter of Credit.
"Interest Period" has the meaning assigned to that term
in Section 3.03(b) hereof.
"Issuer" has the meaning assigned to that term in the
Preliminary Statement.
"Issuer Resolution" means the resolution adopted by the
Issuer that authorized the issuance of the Bonds, approved
the terms and provisions of the Bonds, and approved those
of the documents related to the Bonds to which the Issuer
is a party.
"Letter of Credit" has the meaning assigned to that
term in the Preliminary Statement.
"Lien" has the meaning assigned to that term in Section
7.02(a) hereof.
"Loan Documents" means this Agreement and the Security
Documents.
"Major Electric Generating Plants" means the following
nuclear, combustion turbine and coal, oil or diesel-fired
generating stations of the Account Party: the Merrimack
generating station located in Bow, New Hampshire; the
Newington generating station located in Newington, New
Hampshire; the Schiller generating station located in
Portsmouth, New Hampshire; the White Lake combustion
turbine located in Tamworth, New Hampshire; the Millstone
Unit No. 3 generating station located in Waterford,
Connecticut, and the Wyman Unit No. 4 generating station
located in Yarmouth, Maine.
"Majority Lenders" means on any date of determination,
(i) the Issuing Bank and (ii) Participating Banks who,
collectively, on such date, have Percentages in the
aggregate of at least 66-2/3%. Determination of those
Participating Banks satisfying the criteria specified above
for action by the Majority Lenders shall be made by the
Agent and shall be conclusive and binding on all parties
absent manifest error.
"Merger" means (i) the merger on June 5, 1992 of NU
Acquisition Corp., a wholly-owned subsidiary of NU, with
and into the Account Party and (ii) the transfer on the
same date by the Account Party, as so merged, to NAEC of
the Seabrook Interests in accordance with the Plan and the
Rate Agreement.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"NAEC" means North Atlantic Energy Corporation, a
corporation wholly-owned by NU for the sole purpose of
acquiring the Seabrook Interests, which were acquired by
NAEC from the Account Party on June 5, 1992.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation and a wholly-owned subsidiary of
NU.
"Official Statement" means any Official Statement,
Preliminary Official Statement or similar disclosure
document relating to the Bonds, and shall include any
amendment, supplement or "sticker" thereto.
"Original Indenture" has the meaning assigned to that
term in the Preliminary Statement.
"Participant" shall have the meaning assigned to that
term in Section 10.06(b) hereof.
"Participating Banks" means the Persons listed on the
signature pages hereof following the heading "Participating
Banks" and any other Person who becomes a party hereto
pursuant to Section 10.06 hereof.
"Participation Assignment" means a participation
assignment entered into pursuant to Section 10.06 hereof by
any Participating Bank and an assignee, in substantially
the form of Exhibit 1.01B hereto.
"Participation Percentage" means, as of any date of
determination (i) with respect to a Participating Bank
initially a party hereto, the percentage set forth opposite
such Participating Bank's name on the signature pages
hereof, except as provided in clause (iii), below, (ii)
with respect to a Participating Bank that became a party
hereto by operation of Section 10.06(a) hereof, the
Participation Percentage stated to be assumed by such
assignee Participating Bank in the relevant Participation
Assignment, except as provided in clause (iii), below, and
(iii) with respect to any Participating Bank described in
clauses (i) and (ii), above, that assigns a percentage of
its interests in accordance with Section 10.06(a) hereof,
its participation percentage as reduced by the percentage
so assigned.
"Paying Agent" means (i) BankAmerica National Trust
Company, as the paying agent for the Bonds under the
Indenture, and (ii) any successor paying agent for the
Bonds under the Indenture.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
estate, unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
"Plan" means that certain Third Amended Joint Plan of
Reorganization of the Account Party, dated December 28,
1989, as confirmed by order of the United States Bankruptcy
Court for the District of New Hampshire on April 20, 1990.
"Pledge Agreement" means the Series D Pledge Agreement,
dated as of May 1, 1991, by the Account Party in favor of
Citibank, as amended by a First Amendment thereto, dated as
of October 1, 1992, among the Account Party, Citibank and
Barclays, as agent and issuing bank under the Existing
Reimbursement Agreement, and a Second Amendment thereto
(the "Pledge Amendment") in substantially the form of
Exhibit 1.01C hereto, and as the same may from time to time
be amended, modified or supplemented.
"Pledged Bonds" shall have the meaning assigned to that
term in the Pledge Agreement.
"Preferred Stock" means 5,000,000 shares of Series A
Preferred Stock of the Account Party (par value $25).
"Premium Component" has the meaning assigned to that
term in the Letter of Credit.
"Principal Component" has the meaning assigned to that
term in the Letter of Credit.
"PSNH Mortgage" has the meaning assigned to that term
in the Financing Agreements.
"Rate Agreement" means the Agreement dated as of
November 22, 1989, as amended by the First Amendment to
Rate Agreement dated as of December 5, 1989, the Second
Amendment to Rate Agreement dated as of December 12, 1989,
the Third Amendment to Rate Agreement dated as of December
28, 1993, the Fourth Amendment to Rate Agreement dated as
of September 21, 1994 and the Fifth Amendment to Rate
Agreement dated as of September 9, 1994, among NUSCO, the
Governor and Attorney General of the State of New Hampshire
and adopted by the Account Party as of July 10, 1990
(excluding the Unit Contract appended as Exhibit A thereto
subsequent to the effectiveness of such contract).
"Recipient" has the meaning assigned to that term in
Section 10.09 hereto.
"Related Documents" means the Letter of Credit, the
Bonds, the Indenture and any Remarketing Agreement.
"Remarketing Agent" has the meaning assigned to that
term in the Indenture.
"Remarketing Agreement" means (i) the Remarketing
Agreement, dated as of May 1, 1991, between the Account
Party and Goldman, Sachs Money Markets Inc. relating to the
Taxable Bonds, (ii) the Remarketing Agreement, dated as of
December 1, 1992, between the Account Party and Goldman,
Sachs & Co. relating to the Existing Tax-Exempt Refunding
Bonds, (iii) any similar agreement subsequently entered
into with respect to any other Tax-Exempt Refunding Bonds
and (iv) any successor agreement to any of the foregoing or
any similar agreement between the Account Party and a
successor Remarketing Agent as shall be in effect from time
to time in accordance with the terms of the Indenture.
"Restricted Payment" has the meaning assigned to that
term in Section 7.02(e) hereof.
"S&P" means Standard and Poor's Ratings Group or any
successor thereto.
"Seabrook" means the nuclear-fueled, steam-electric
generating plant at a site located in Seabrook, New
Hampshire, and the related real property interests,
fixtures, and other fixed assets.
"Seabrook Interests" means all right, title and
interest of the Account Party, prior to the Merger, in and
to the fixed assets of Seabrook, nuclear fuel relating to
Seabrook and Governmental Approvals relating thereto,
including the undeveloped land adjacent to Seabrook then
wholly-owned by the Account Party and described as the
"Adjacent Property" in Schedule D to the PSNH Mortgage.
"Security Documents" means the Pledge Agreement, the
Indenture, the First Mortgage Indenture and the Series F
First Mortgage Bonds.
"Series E Reimbursement Agreement" means (i) the Second
Series E Letter of Credit and Reimbursement Agreement,
dated as of May 1, 1995, among the Account Party, Swiss
Bank Corporation, New York Branch, as issuing bank and
agent thereunder and the Participating Banks referred to
therein relating to the Issuer's Pollution Control Revenue
Bonds (Public Service Company of New Hampshire Project-
1991 Taxable Series E) and the Issuer's Pollution Control
Refunding Revenue Bonds (Public Service Company of New
Hampshire Project-1993 Tax-Exempt Series E), as the same
may from time to time be amended, modified or supplemented
or (ii) any reimbursement agreement or similar agreement
relating to a substitute credit facility applicable to such
bonds.
"Series F First Mortgage Bonds" means the Account
Party's Series F First Mortgage Bonds.
"Sharing Agreement" means the Sharing Agreement, dated
as of June 1, 1992, among CL&P, Western Massachusetts
Electric Company, Holyoke Water Power Company, Holyoke
Power and Electric Company, the Account Party and NUSCO.
"Significant Contracts" means the following contracts,
in each case as the same may be amended, modified or
supplemented from time to time in accordance with this
Agreement:
(i) the Agreement for Capacity Transfer;
(ii)the Sharing Agreement;
(iii)the Tax Allocation Agreement; and
(iv)the Unit Contract.
"Stated Amount" has the meaning assigned to that term
in the Preliminary Statement hereto.
"Stated Termination Date" means the expiration date
specified in clause (i) of the first paragraph of Paragraph
(1) of the Letter of Credit, as such date may be extended
pursuant to Section 2.05 hereof.
"Tax Allocation Agreement" means the Amended and
Restated Tax Allocation Agreement, dated as of January 1,
1990, among NU and the members of the consolidated group of
which NU is the common parent, including, without
limitation, the Account Party.
"Taxable Bonds" has the meaning assigned to that term
in the Preliminary Statement.
"Tender Drawing" has the meaning assigned to that term
in the Letter of Credit.
"Term Advance" has the meaning assigned to that term in
Section 3.02(b) hereof, and refers to a Base Rate Advance
or a Eurodollar Rate Advance (each of which shall be a
"Type" of Term Advance). The Type of a Term Advance may
change from time to time when such Term Advance is
Converted. For purposes of this Agreement, all Term
Advances of a Participating Bank (or portions thereof) made
as, or Converted to, the same Type and Interest Period on
the same day shall be deemed a single Term Advance by such
Participating Bank until repaid or next Converted.
"Term Borrowing" means a borrowing consisting of Term
Advances of the same Type and Interest Period made on the
same day by the Participating Banks, ratably in accordance
with their respective Participation Percentages. A Term
Borrowing may be referred to herein as being a "Type" of
Term Borrowing, corresponding to the Type of Term Advances
comprising such Term Borrowing. For purposes of this
Agreement, all Term Advances made as, or Converted to, the
same Type and Interest Period on the same day shall be
deemed a single Term Borrowing until repaid or next
Converted.
"Termination Date" means the Stated Termination Date or
the earlier date of termination of the Commitments pursuant
to Sections 2.02 or 8.02 hereunder.
"Total Capitalization " means, as of any day, the
aggregate of all amounts that would, in accordance with
generally accepted accounting principles applied on a basis
consistent with the standards referred to in Section 1.03
hereof, appear on the balance sheet of the Account Party as
at such day as the sum of (i) the principal amount of all
long-term Debt of the Account Party on such day, (ii) the
par value of, or stated capital represented by, the
outstanding shares of all classes of common and preferred
shares of the Account Party on such day, (iii) the surplus
of the Account Party, paid-in, earned and other, if any, on
such day and (iv) the unpaid principal amount of all short-
term Debt of the Account Party on such day.
"Trustee" has the meaning assigned to that term in the
Preliminary Statement hereto.
"Type" has the meaning assigned to such term in the
definitions of "Term Advance and "Term Borrowing" herein.
"Unit Contract" means the Unit Contract, dated as of
June 1, 1992, between the Account Party and NAEC.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of
Default.
SECTION 1.02. Computation of Time Periods. In the
computation of periods of time under this Agreement any period of a specified
number of days or months shall be computed by including the first day or
month occurring during such period and excluding the last such day or month.
In the case of a period of time "from a specified date "to or "until a
later specified date, the word "from" means "from and including and the
words "to and "until each means "to but excluding.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles applied on a basis consistent with the
application employed in the preparation of the financial projections and pro-
formas referred to in Section 5.01 hereof.
SECTION 1.04. Computations of Outstandings. Whenever
reference is made in this Agreement to the principal amount outstanding on
any date under this Agreement, such reference shall refer to the sum of (i)
the Available Amount on such date, (ii) the aggregate principal amount of all
Advances outstanding on such date and (iii) the aggregate amount of all
demand loans under Section 3.01 hereunder on such date, in each case after
giving effect to all transactions to be made on such date and the application
of the proceeds thereof.
ARTICLE II
THE LETTER OF CREDIT
SECTION 2.01. The Letter of Credit. The Issuing Bank
agrees, on the terms and conditions hereinafter set forth (including, without
limitation, the applicable conditions precedent set forth in Article V
hereof), to issue the Letter of Credit to the Paying Agent, upon not less
than three Business Days prior notice from the Account Party, on the Closing
Date.
SECTION 2.02. Termination of the Commitments. The
obligation of the Issuing Bank to issue the Letter of Credit shall
automatically terminate if unexercised at 5:00 P.M. (New York City time) on
May 7th, 1995.
SECTION 2.03. Commissions and Fees. (a) The Account
Party hereby agrees to pay to the Agent, for the account of the Participating
Banks ratably in accordance with their respective Participation Percentages,
a letter of credit commission on the Available Amount in effect from time to
time from the date of issuance of the Letter of Credit until the Termination
Date (disregarding for such purpose any temporary diminution thereof arising
from drawings under the Letter of Credit to pay interest (or purchase price
corresponding to interest) on the Bonds, regardless of whether the amount so
drawn shall be thereafter reinstated), at a rate per annum equal to the
Applicable Commission, payable quarterly in arrears on the first day of
February, May, August and November in each year, commencing on the first such
date to occur following the date of issuance of the Letter of Credit, and on
the Credit Termination Date.
(b) The Account Party also agrees to pay to the Agent for
the account of the Participating Banks ratably in accordance with their
respective Participation Percentages, a one-time participation fee equal to
five one-hundredths of one percent (0.05%) of the Stated Amount, such
participation fee to be payable in full simultaneously with the issuance of
the Letter of Credit.
(c) The Account Party also agrees to pay to the Agent, for
the account of the Issuing Bank, such other fees as have been agreed upon by
the Account Party and the Issuing Bank in that certain Series D Fee Agreement
of even date herewith between the Borrower and Barclays (the "Fee
Agreement").
(d) The Account Party also agrees to pay to the Agent, for
its own account and/or the account of the BZW Division of Barclays, such
other fees as have been agreed upon by the Account Party and the Agent in the
Fee Agreement.
SECTION 2.04. Reinstatement of the Letter of Credit. (a)
The Interest Component and the Principal Component shall, from time to time,
be reinstated by the Issuing Bank in accordance with, and only to the extent
provided in, the Letter of Credit. In no event shall reductions in the
Premium Component be reinstated.
(b) Interest Component. With respect to reinstatement of
reductions in the Interest Component resulting from Interest Drawings:
(i) The Issuing Bank may only deliver to the Paying
Agent any notice of non-reinstatement pursuant to Paragraph
5(i)(A) of the Letter of Credit if (A) the Issuing Bank
and/or the Participating Banks have not been reimbursed in
full by the Account Party for one or more drawings,
together with interest, if any, owing thereon pursuant to
this Agreement, or (B) an Event of Default has occurred and
is then continuing.
(ii) If, subsequent to any such delivery of a notice
of non-reinstatement, the circumstances giving rise to the
delivery of such notice of non-reinstatement shall have
ceased to exist (whether as a result of reimbursement of
unreimbursed drawings, or waiver or cure of an Event of
Default, or otherwise), then, provided that no other Event
of Default shall have occurred and be continuing, the
Issuing Bank shall deliver to the Paying Agent, by hand
delivery or facsimile transmission, a Notice of
Reinstatement in the form of Exhibit 5 to the Letter of
Credit reinstating that portion of the Interest Component
in respect of which such notice of non-reinstatement was
given.
(c) Principal Component. With respect to reinstatement of
a reduction in the Principal Component resulting from any Tender Drawing, IF:
(i) such reduction has not been reinstated pursuant to
Paragraph 5(ii)(A) of the Letter of Credit;
(ii) the Issuing Bank and/or the Participating Banks
shall have been reimbursed by the Account Party for such
Tender Drawing;
(iii) any demand loan(s) and Advance(s) made in
respect of such Tender Drawing shall have been repaid by
the Account Party, together with any interest thereon and
any other amounts payable hereunder in connection
therewith; AND
(iv) no Event of Default shall have occurred and then
be continuing;
THEN, the Issuing Bank shall deliver to the Paying Agent, by hand delivery or
facsimile transmission, a Notice of Reinstatement in the form of Exhibit 5 to
the Letter of Credit reinstating the Principal Component to the extent of
such Tender Drawing.
SECTION 2.05. Extension of the Stated Termination Date.
Unless the Letter of Credit shall have previously expired in accordance with
its terms, at least 105 days but not more than 120 days before the Stated
Termination Date, the Account Party may, by notice to the Agent (any such
notice being irrevocable), request the Issuing Bank and the Participating
Banks to extend the Stated Termination Date of the Letter of Credit for a
period of one year. If the Account Party shall make such request, the Agent
shall promptly inform the Issuing Bank and the Participating Banks and, no
later than 60 days prior to the Stated Termination Date, the Agent shall
notify the Account Party in writing (with a copy of such notice to the
Trustee and the Paying Agent) if the Issuing Bank and the Participating Banks
consent to such request and the conditions of such consent (including
conditions relating to legal documentation). The granting of any such
consent shall be in the sole and absolute discretion of the Issuing Bank and
the Participating Banks, and if the Agent shall not so notify the Account
Party, such lack of notification shall be deemed to be a determination not to
consent to such request. No such extension shall occur unless the Issuing
Bank and all of the Participating Banks consent thereto (or if less than all
the Participating Banks consent thereto, unless one or more other
Participating Banks agree to assume all of the Commitments of the non-
consenting Participating Banks).
SECTION 2.06. Modification of the Letter of Credit. In the
event that the Account Party elects to cause the issuance of any additional
series of Tax-Exempt Refunding Bonds (as defined in the Indenture) pursuant
to Article IV of the Indenture, the Account Party may, but shall not be
obligated to, propose amendments to the Letter of Credit to change the method
of computing the Interest Component or such other terms thereof as may be
necessary or appropriate in connection with such issuance. Any such proposal
shall be furnished to the Issuing Bank in writing not later than 60 days
prior to the date proposed for such issuance. If the Issuing Bank shall
consent to such amendments (which consent, subject to the provisions of the
next succeeding sentence, shall not be unreasonably withheld) the Issuing
Bank shall, upon surrender of the Letter of Credit by the beneficiary thereof
for amendment (or replacement, as the Issuing Bank may elect), amend the
Letter of Credit accordingly (or issue a replacement Letter of Credit
therefor reflecting such amendments but otherwise identical to the Letter of
Credit so surrendered). Notwithstanding the foregoing, without the consent
of the requisite Participating Banks as determined in accordance with Section
10.01, the Issuing Bank shall not consent to any amendment or amendments that
(i) increase the Stated Amount or the then-existing Available Amount, (ii)
change or modify in any respect the Credit Termination Date or any provision
for determining the expiry or other termination of the Letter of Credit,
(iii) change or modify in any respect the times, places or manner at or in
which drawings under the Letter of Credit are to be presented or paid, (iv)
change or modify in any respect the forms of drawing certificates and other
annexes to the Letter of Credit, (v) change the beneficiary of the Letter of
Credit or the method prescribed therein for the transfer of the Letter of
Credit or (vi) as determined in the good faith discretion of the Issuing Bank
and its counsel, increase or enlarge the scope, or modify the nature, of the
Issuing Bank's and the Participating Banks' credit exposure to the Account
Party or any legal risks related thereto or expose the Issuing Bank to any
additional liability. In furtherance of the foregoing, the Issuing Bank may
condition the granting of such consent on the receipt by the Issuing Bank of
such certificates, opinions of counsel and other assurances of the Account
Party and its counsel, or bond counsel or the Trustee or Paying Agent, as the
Issuing Bank may reasonably require. Each Participating Bank, by its
execution of this Agreement, or of the Participation Assignment pursuant to
which it became a Participating Bank, consents to, ratifies and affirms all
actions taken and to be taken by the Issuing Bank pursuant to this Section
2.06.
ARTICLE III
REIMBURSEMENT AND ADVANCES
SECTION 3.01. Reimbursement on Demand. Subject to the
provisions of Section 3.02 hereof, the Account Party hereby agrees to pay
(whether with the proceeds of Initial Advances made pursuant to this
Agreement or otherwise) to the Issuing Bank on demand (a) on and after each
date on which the Issuing Bank shall pay any amount under the Letter of
Credit pursuant to any draft, but only after so paid by the Issuing Bank, a
sum equal to such amount so paid (which sum shall constitute a demand loan
from the Issuing Bank to the Account Party from the date of such payment by
the Issuing Bank until so paid by the Account Party), plus (b) interest on
any amount remaining unpaid by the Account Party to the Issuing Bank under
clause (a), above, from the date such amount becomes payable on demand until
payment in full, at the Default Rate in effect from time to time. No
reinstatement of the Interest Component or the Principal Component despite
the failure by the Account Party to reimburse the Issuing Bank for any
previous drawing to pay interest on the Bonds shall limit or impair the
Account Party's obligations under this Section 3.01.
SECTION 3.02. Advances. Each Participating Bank agrees to
make Initial Advances and Term Advances for the account of the Account Party
from time to time upon the terms and subject to the conditions set forth in
this Agreement.
(a) Initial Advances; Repayment of Initial Advances. If
the Issuing Bank shall honor any Tender Drawing and if the conditions
precedent set forth in Section 5.03 of this Agreement have been satisfied as
of the date of such honor, then, each Participating Bank's payment made to
the Issuing Bank pursuant to Section 3.07 hereof in respect of such Tender
Drawing shall be deemed to constitute an advance made for the account of the
Account Party by such Participating Bank (each such advance being an "Initial
Advance" made by such Participating Bank). Each Initial Advance shall be
made as a Base Rate Advance, shall bear interest at the Alternate Base Rate
and shall not be entitled to be Converted. Subject to Article VIII of this
Agreement, each Initial Advance and all interest thereon shall be due and
payable on the earlier to occur of (i) the date 30 days from the date of such
Initial Advance (such repayment date being the "Initial Repayment Date" for
such Initial Advance) and (ii) the Termination Date. The Account Party may
repay the principal amount of any Initial Advance with (and to the extent of)
the proceeds of a Term Advance made pursuant to subsection (b), below, and
may prepay Initial Advances in accordance with Section 3.06 hereof.
(b) Term Advances; Repayment. Subject to the satisfaction
of the conditions precedent set forth in Section 5.04 hereof and the other
conditions of this subsection (b), each Participating Bank agrees to make one
or more advances for the account of the Account Party ("Term Advances") on
each Initial Repayment Date in an aggregate principal amount equal to the
amount of such Participating Bank's Initial Advances maturing on such Initial
Repayment Date. All Term Advances comprising a single Term Borrowing shall
be made upon written notice given by the Account Party to the Agent not later
than 11:00 A.M. (New York City time) (A) in the case of a Term Borrowing
comprised of Base Rate Advances, on the Business Day of such proposed Term
Borrowing or (B) in the case of a Term Borrowing comprised of Eurodollar Rate
Advances, three Business Days prior to the date of such proposed Term
Borrowing. The Agent shall notify each Participating Bank of the contents of
such notice promptly after receipt thereof. Each such notice shall specify
therein the following information: (W) the date on which such Term Borrowing
is to be made, (X) the principal amount of Term Advances comprising such Term
Borrowing, (Y) the Type of Term Borrowing and (Z) the duration of the initial
Interest Period, if applicable, proposed to apply to the Term Advances
comprising such Term Borrowing. The proceeds of each Participating Bank's
Term Advances shall be applied solely to the repayment of the Initial
Advances made by such Participating Bank and shall in no event be made
available to the Account Party. The principal amount of each Term Advance,
together with all accrued and unpaid interest thereon, shall be due and
payable on the earlier to occur of (x) the same calendar date occurring 35
months following the date upon which such Term Advance is made (or, if such
month does not have a corresponding date, on the last day of such month) and
(y) the Termination Date.
SECTION 3.03. Interest on Advances. The Account Party
shall pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full at the
applicable rate set forth below:
(a) Alternate Base Rate. Except to the extent that the
Account Party shall elect to pay interest on any Advance
for any Interest Period pursuant to paragraph (c) of this
Section 3.03, the Account Party shall pay interest on each
Advance (including all Initial Advances) from the date
thereof until the date such Advance is due, at a
fluctuating interest rate per annum in effect from time to
time equal to the Alternate Base Rate in effect from time
to time. The Account Party shall pay interest on each
Advance bearing interest in accordance with this subsection
quarterly in arrears on the first day of February, May,
August and November in each year and on the Termination
Date or the earlier date for repayment of such Advance
(including the Initial Repayment Date therefor, in the case
of an Initial Advance).
(b) Interest Periods. Subject to the other
requirements of this Section 3.03, the Account Party may
from time to time elect to have the interest on all Term
Advances comprising part of the same Term Borrowing
determined and payable for a specified period (an "Interest
Period" for such Term Advances) in accordance with
paragraph (c) of this Section 3.03. The first day of an
Interest Period for such Term Advances shall be the date
such Advance is made or most recently Converted, which
shall be a Business Day. All Interest Periods shall end on
or prior to the Stated Termination Date. Any Interest
Period for a Term Advance that would otherwise end after
the Termination Date or earlier date for the repayment of
such Advance shall be deemed to end on the Termination Date
or such earlier repayment date, as the case may be.
(c) Eurodollar Rate. Subject to the requirements of
this Section 3.03 and Article V hereof, the Account Party
may from time to time elect to have any Term Advances
comprising part of the same Term Borrowing made as, or
Converted to, Eurodollar Rate Advances. The Interest
Period applicable to such Eurodollar Rate Advances shall be
of one, two, three or six whole months' duration, as the
Account Party shall select in its notice delivered to the
Agent pursuant to Section 3.02(b) or 3.04 hereof, as
applicable. If the Account Party shall have made such
election, the Account Party shall pay interest on such
Eurodollar Rate Advances at the Eurodollar Rate, for the
applicable Interest Period for such Eurodollar Rate
Advances, which interest shall be payable on the last day
of such Interest Period, on the date for repayment for such
Eurodollar Rate Advances and also, in the case of any
Interest Period of six months' duration, on that day of the
third month of such Interest Period which corresponds with
the first day of such Interest Period (or, if any such
month does not have a corresponding day, then on the last
day of such month). Any Interest Period pertaining to
Eurodollar Rate Advances that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of a calendar month.
(d) Interest Rate Determinations. The Agent shall
give
prompt notice to the Account Party and the Participating
Banks of the Eurodollar Rate determined from time to time
by the Agent to be applicable to each Eurodollar Rate
Advance.
SECTION 3.04. Conversion of Term Advances. Subject to
the satisfaction of the conditions precedent set forth in Section 5.03
hereof, the Account Party may elect to Convert one or more Term Advances of
any Type to one or more Term Advances of the same or any other Type on the
following terms and subject to the following conditions:
(a) Each Conversion shall be made as to all Term
Advances comprising a single Term Borrowing upon written
notice given by the Account Party to the Agent not later
than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion. The
Agent shall notify each Participating Bank of the contents
of such notice promptly after receipt thereof. Each such
notice shall specify therein the following information:
(A) the date of such proposed Conversion (which in the case
of Eurodollar Rate Advances shall be the last day of the
Interest Period then applicable to such Term Advances to be
Converted), (B) Type of, and Interest Period, if any,
applicable to the Term Advances proposed to be Converted,
(C) the aggregate principal amount of Term Advances
proposed to be Converted, and (D) the Type of Term Advances
to which such Term Advances are proposed to be Converted
and the Interest Period, if any, to be applicable thereto.
(b) During the continuance of an Unmatured Default or
an Event of Default, the right of the Account Party to
Convert Term Advances to Eurodollar Rate Advances shall be
suspended, and all Eurodollar Rate Advances then
outstanding shall be Converted to Base Rate Advances on the
last day of the Interest Period then in effect, if, on such
day, an Unmatured Default or an Event of Default shall be
continuing.
(c) If no notice of Conversion is received by the
Agent
as provided in subsection (a) above with respect to any
outstanding Eurodollar Rate Advances, the Agent shall treat
such absence of notice as a deemed notice of Conversion
providing for such Advances to be Converted to Base Rate
Advances on the last day of the Interest Period then in
effect for such Eurodollar Rate Advances.
SECTION 3.05. Other Terms Relating to the Making and
Conversion of Advances. (a) Notwithstanding anything in Section 3.02, 3.03
or 3.04, above, to the contrary:
(i) at no time shall more than six different Term
Borrowings be outstanding hereunder; and
(ii) each Term Borrowing consisting of Eurodollar Rate
Advances shall be in the aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(b) Each notice of borrowing pursuant to Section 3.02(b)
hereof and each notice of Conversion pursuant to Section 3.04 hereof shall be
irrevocable and binding on the Account Party.
SECTION 3.06. Prepayment of Advances. (a) The Account
Party shall have no right to prepay any principal amount of any Advances
except in accordance with subsections (b) and (c) below.
(b) The Account Party may, upon at least one Business Day's
notice to the Agent stating the proposed date and aggregate principal amount
of the prepayment (and if such notice is given the Account Party shall),
prepay, in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid, the outstanding
principal amount of (i) all Initial Advances made on the same date or (ii)
all Term Advances comprising the same Term Borrowing, in each case as the
Account Party shall designate in such notice; provided, however, that each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000, or, if less, the aggregate principal amount of all Advances then
outstanding.
(c) Prior to or simultaneously with the resale of all of
the Bonds purchased with the proceeds of a Tender Drawing, the Account Party
shall prepay, or cause to be prepaid, in full, the then outstanding principal
amount of all Initial Advances and of all Term Advances comprising the same
Term Borrowing(s) arising pursuant to such Tender Drawing, together with all
interest thereon to the date of such prepayment. If less than all of such
Bonds are resold, then prior to or simultaneously with such resale the
Account Party shall prepay or cause to be prepaid that portion of such
Advances, together with all interest thereon to the date of such prepayment,
equal to the then outstanding principal amount thereof multiplied by a
fraction, the numerator of which shall be the principal amount of the Bonds
resold and the denominator of which shall be the principal amount of all of
the Bonds purchased with the proceeds of the relevant Tender Drawing.
SECTION 3.07. Participation; Reimbursement of Issuing
Bank. (a) The Issuing Bank hereby sells and transfers to each Participating
Bank, and each Participating Bank hereby acquires from the Issuing Bank, an
undivided interest and participation to the extent of such Participating
Bank's Participation Percentage in and to (i) the Letter of Credit, including
the obligations of the Issuing Bank under and in respect thereof and the
Account Party's reimbursement and other obligations in respect thereof and
(ii) each demand loan or deemed demand loan made by the Issuing Bank, whether
now existing or hereafter arising.
(b) If the Issuing Bank (i) shall not have been reimbursed
in full for any payment made by the Issuing Bank under the Letter of Credit
on the date of such payment or (ii) shall make any demand loan to the Account
Party, the Issuing Bank shall promptly notify the Agent and the Agent shall
promptly notify each Participating Bank of such non-reimbursement or demand
loan and the amount thereof. Upon receipt of such notice from the Agent,
each Participating Bank shall pay to the Issuing Bank, directly, an amount
equal to such Participating Bank's ratable portion (according to such
Participating Bank's Participation Percentage) of such unreimbursed amount or
demand loan paid or made by the Issuing Bank, plus interest on such amount at
a rate per annum equal to the Federal Funds Rate from the date of such
payment by the Issuing Bank to the date of payment to the Issuing Bank by
such Participating Bank. All such payments by each Participating Bank shall
be made in United States dollars and in same day funds:
(x) not later than 2:45 P.M. (New York City time) on
the day such notice is received by such Participating Bank
if such notice is received at or prior to 12:30 P.M. (New
York City time) on a Business Day; or
(y) not later than 12:00 Noon (New York City time) on
the Business Day next succeeding the day such notice is
received by such Participating Bank, if such notice is
received after 12:30 P.M. (New York City time) on a
Business Day.
If a Participating Bank shall have paid to the Issuing Bank its ratable
portion of any unreimbursed amount or demand loan paid or made by the Issuing
Bank, together with all interest thereon required by the second sentence of
this subsection (b), such Participating Bank shall be entitled to receive its
ratable share of all interest paid by the Account Party in respect of such
unreimbursed amount or demand loan from the date paid or made by the Issuing
Bank. If such Participating Bank shall have made such payment to the Issuing
Bank, but without all such interest thereon required by the second sentence
of this subsection (b), such Participating Bank shall be entitled to receive
its ratable share of the interest paid by the Account Party in respect of
such unreimbursed amount or demand loan only from the date it shall have paid
all interest required by the second sentence of this subsection (b).
(c) Each Participating Bank's obligation to make each
payment to the Issuing Bank, and the Issuing Bank's right to receive the
same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the foregoing or
Section 4.06 hereof, or the occurrence or continuance of an Event of Default,
or the non-satisfaction of any condition precedent set forth in Sections 5.03
or 5.04 hereof, or the failure of any other Participating Bank to make any
payment under this Section 3.07. Each Participating Bank further agrees that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(d) The failure of any Participating Bank to make any
payment to the Issuing Bank in accordance with subsection (b) above, shall
not relieve any other Participating Bank of its obligation to make payment,
but neither the Issuing Bank nor any Participating Bank shall be responsible
for the failure of any other Participating Bank to make such payment. If any
Participating Bank shall fail to make any payment to the Issuing Bank in
accordance with subsection (b) above, then such Participating Bank shall pay
to the Issuing Bank forthwith on demand such corresponding amount together
with interest thereon, for each day until the date such amount is repaid to
the Issuing Bank at the Federal Funds Rate. Nothing herein shall in any way
limit, waive or otherwise reduce any claims that any party hereto may have
against any non-performing Participating Bank.
(e) If any Participating Bank shall fail to make any
payment to the Issuing Bank in accordance with subsection (b) above, then, in
addition to other rights and remedies which the Issuing Bank may have, the
Agent is hereby authorized, at the request of the Issuing Bank, to withhold
and to apply the payment of such amounts owing to such Participating Bank to
the Issuing Bank and any related interest, that portion of any payment
received by the Agent that would otherwise be payable to such Participating
Bank. In furtherance of the foregoing, if any Participating Bank shall fail
to make any payment to the Issuing Bank in accordance with subsection (b),
above, and such failure shall continue for five Business Days following
written notice of such failure from the Issuing Bank to such Participating
Bank, the Issuing Bank may acquire, or transfer to a third party in exchange
for the sum or sums due from such Participating Bank, such Participating
Bank's interest in the related unreimbursed amounts and demand loans and all
other rights of such Participating Bank hereunder in respect thereof,
without, however, relieving such Participating Bank from any liability for
damages, costs and expenses suffered by the Issuing Bank as a result of such
failure. The purchaser of any such interest shall be deemed to have acquired
an interest senior to the interest of such Participating Bank and shall be
entitled to receive all subsequent payments which the Issuing Bank or the
Agent would otherwise have made hereunder to such Participating Bank in
respect of such interest.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) The
Account Party shall make each payment hereunder (i) in the case of
reimbursement obligations pursuant to Section 3.01 hereof (excluding any
portion thereof in respect of which an Initial Advance is to be made), not
later than 2:30 P.M. (New York City time) on the day the related drawing
under the Letter of Credit is paid by the Issuing Bank, and (ii) in all other
cases, not later than 12:30 P.M. (New York City time) on the day when due, in
each case in lawful money of the United States of America to the Agent at its
address referred to in Section 10.02 hereof in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of reimbursements, principal, interest, fees or other amounts payable
to the Issuing Bank and the Participating Banks to whom the same are payable,
ratably, at its address set forth in Section 10.02 hereof (in the case of the
Issuing Bank) or for the account of their respective Applicable Lending
Offices (in the case of the Participating Banks), in each case to be applied
in accordance with the terms of this Agreement.
(b) The Account Party hereby authorizes the Issuing Bank,
and each Participating Bank, if and to the extent payment owed to the Issuing
Bank, or such Participating Bank, as the case may be, is not made when due
hereunder, to charge from time to time against any or all of the Account
Party's accounts with the Issuing Bank or such Participating Bank, as the
case may be, any amount so due.
(c) All computations of interest based on the Alternate
Base Rate when based on Barclays' prime rate referred to in the definition of
"Alternate Base Rate" shall be made by the Agent on the basis of a year of
365 or 366 days, as the case may be, for the actual days elapsed. All other
computations of interest hereunder (including computations of interest based
on the Eurodollar Rate and the Federal Funds Rate (including the Alternate
Base Rate if and so long as such Rate is based on the Federal Funds Rate)),
all computations of commissions and fees hereunder and all computations of
other amounts pursuant to Section 4.03 hereof, shall be made by the Agent or
the party claiming such other amounts, as the case may be, on the basis of a
year of 360 days for the actual days elapsed. In each such case, such
computation shall be made for the actual number of days (including the first
day, but excluding the last day) occurring in the period for which such
interest, commissions or fees are payable. Each such determination by the
Agent or a Participating Bank, as the case may be, shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to
occur, on a day other than a Business Day, such payment shall be made and the
last day of such Interest Period shall occur on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest, commissions and fees hereunder; provided,
however, that if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made, or the last day of an
Interest Period for a Eurodollar Rate Advance to occur, in the next following
calendar month, such payment shall be made on the next preceding Business Day
and such reduction of time shall in such case be included in the computation
of payment of interest hereunder.
(e) Unless the Agent shall have received notice from the
Account Party prior to the date on which any payment is due to the Issuing
Bank or the Participating Banks hereunder that the Account Party will not
make such payment in full, the Agent may assume that the Account Party has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to the Issuing Bank
and/or each Participating Bank on such due date an amount equal to the amount
then due the Issuing Bank and/or such Participating Bank. If and to the
extent the Account Party shall not have so made such payment in full to the
Agent, the Issuing Bank and/or each such Participating Bank shall repay to
the Agent forthwith on demand such amount distributed to the Issuing Bank
and/or such Participating Bank, together with interest thereon, for each day
from the date such amount is distributed to the Issuing Bank and/or such
Participating Bank until the date the Issuing Bank and/or such Participating
Bank repays such amount to the Agent, at the Federal Funds Rate.
(f) If, after the Agent has paid to the Issuing Bank or any
Participating Bank any amount pursuant to subsection (a) above, such payment
is rescinded or must otherwise be returned or must be paid over by the Agent
or the Issuing Bank to any Person, whether pursuant to any bankruptcy or
insolvency law, Section 4.04 hereof or otherwise, such Participating Bank
shall, at the request of the Agent or the Issuing Bank, promptly repay to the
Agent or the Issuing Bank, as the case may be, an amount equal to its ratable
share of such payment, together with any interest required to be paid by the
Agent or the Issuing Bank with respect to such payment.
SECTION 4.02. Default Interest. Any amounts payable
hereunder that are not paid when due shall (to the fullest extent permitted
by law) bear interest, from the date when due until paid in full, at the
Default Rate, payable on demand.
SECTION 4.03. Yield Protection. (a) Change in
Circumstances. Notwithstanding any other provision herein, if after the date
hereof, the adoption of or any change in applicable law or regulation or in
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to the Issuing Bank or any Participating Bank of the principal of or interest
on any Eurodollar Rate Advance made by such Participating Bank or any fees or
other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of the Issuing Bank or such Participating
Bank, or its Applicable Lending Office, by the jurisdiction in which the
Issuing Bank or such Participating Bank has its principal office or in which
such Applicable Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of credit
(or participatory interests therein) issued by, commitments or assets of,
deposits with or for the account of, or credit extended by, the Issuing Bank
or such Participating Bank, or (iii) shall impose on the Issuing Bank or such
Participating Bank any other condition affecting this Agreement, the Letter
of Credit or participatory interests therein or Eurodollar Rate Advances, and
the result of any of the foregoing shall be (A) to increase the cost to the
Issuing Bank or such Participating Bank of issuing, maintaining or
participating in this Agreement or the Letter of Credit or of agreeing to
make, making or maintaining any Advance or (B) to reduce the amount of any
sum received or receivable by the Issuing Bank or such Participating Bank
hereunder (whether of principal, interest or otherwise), then the Account
Party will pay to the Issuing Bank or such Participating Bank, upon demand,
such additional amount or amounts as will compensate the Issuing Bank or such
Participating Bank for such additional costs incurred or reduction suffered.
(b) Capital. If the Issuing Bank or any Participating Bank
shall have determined that the applicability of any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or
the adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Issuing Bank or any
Participating Bank (or any Applicable Lending Office of the Issuing Bank or
such Participating Bank), or any holding company of any such entity, with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has
or would have the effect (i) of reducing the rate of return on such entity's
capital or on the capital of such entity's holding company, if any, as a
consequence of this Agreement, the Letter of Credit or such entity's
participatory interest therein, any Commitment hereunder or the portion of
the Advances made by such entity pursuant hereto to a level below that which
such entity or such entity's holding company could have achieved, but for
such applicability, adoption, change or compliance (taking into consideration
such entity's policies and the policies of such entity's holding company with
respect to capital adequacy), or (ii) of increasing or otherwise determining
the amount of capital required or expected to be maintained by such entity or
such entity's holding company based upon the existence of this Agreement, the
Letter of Credit or such entity's participatory interest therein, any
Commitment hereunder, the portion of the Advances made by such entity
pursuant hereto and other similar such credits, participations, commitments,
agreements or assets, then from time to time the Account Party shall pay to
the Issuing Bank or such Participating Bank, upon demand, such additional
amount or amounts as will compensate such entity or such entity's holding
company for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Account Party shall pay to
each Participating Bank upon demand, so long as such Participating Bank shall
be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on
the unpaid principal amount of such Participating Bank's portion of each
Eurodollar Rate Advance, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to
the remainder obtained by subtracting (i) the rate described in clause (i) of
the definition of "Eurodollar Rate" for the Interest Period for such Advance
from (ii) the rate obtained by dividing such rate by a percentage equal to
100% minus the Eurodollar Reserve Percentage of such Participating Bank for
such Interest Period. Such additional interest shall be determined by such
Participating Bank and notified to the Account Party and the Issuing Bank.
(d) Breakage Indemnity. The Account Party shall indemnify
each Participating Bank against any loss, cost or reasonable expense which
such Participating Bank may sustain or incur as a consequence of (i) any
failure by the Account Party to fulfill on the date of any Advance or
Conversion hereunder the applicable conditions set forth in Articles III
and V, (ii) any failure by the Account Party to Convert any Advance hereunder
after irrevocable notice of Conversion has been given pursuant to
Section 3.04 hereof, (iii) any payment, prepayment or Conversion of a
Eurodollar Rate Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Advance or any part thereof or
interest accrued thereon, as and when due and payable (at the due date
thereof, by irrevocable notice of prepayment or otherwise) or (v) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Advance or any part thereof as a Eurodollar Rate Advance. Such
loss, cost or reasonable expense shall include an amount equal to the excess,
if any, as reasonably determined by such Participating Bank, of (A) its cost
of obtaining the funds for the Advance being paid, prepaid, Converted or not
borrowed (based on the Eurodollar Rate) for the period from the date of such
payment, prepayment, Conversion or failure to borrow to the last day of the
Interest Period for such Advance (or, in the case of a failure to borrow, the
Interest Period for such Advance which would have commenced on the date of
such failure) over (B) the amount of interest (as reasonably determined by
such Participating Bank) that would be realized by such Participating Bank in
reemploying the funds so paid, prepaid, Converted or not borrowed for such
period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that each Participating Bank shall have
funded each such Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the applicable interest rate
for such Advance.
(e) Notices. A certificate of the Issuing Bank or any
Participating Bank setting forth such entity's claim for compensation
hereunder and the amount necessary to compensate such entity or its holding
company pursuant to subsections (a) through (d) of this Section 4.03 shall be
submitted to the Account Party and the Issuing Bank and shall be conclusive
and binding for all purposes, absent manifest error. The Account Party shall
pay the Issuing Bank or such Participating Bank directly the amount shown as
due on any such certificate within ten days after its receipt of the same.
The failure of any entity to provide such notice or to make demand for
payment under this Section 4.03 shall not constitute a waiver of such
Participating Bank's rights hereunder; provided, that such entity shall not
be entitled to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or reserve if
such demand is made more than one year following the later of such entity's
incurrence or sufferance thereof or such entity's actual knowledge of the
event giving rise to such entity's rights pursuant to such subsections. The
protection of this Section 4.03 shall be available to the Issuing Bank and
each Participating Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or regulation
or in the interpretation or administration thereof by any governmental
authority charged with the administration or interpretation thereof shall
make it unlawful for any Participating Bank to make or maintain any
Eurodollar Rate Advance or to give effect to its obligations as contemplated
hereby with respect to any Eurodollar Rate Advance, then, by written notice
to the Account Party and the Issuing Bank, such Participating Bank may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Participating Bank hereunder,
whereupon the right of the Account Party to select
Eurodollar Rate Advances for any Advance or Conversion
shall be forthwith suspended until such Participating Bank
shall withdraw such notice as provided hereinbelow or shall
cease to be a Participating Bank hereunder; and
(ii) require that all outstanding Eurodollar Rate
Advances be Converted to Base Rate Advances, in which event
all Eurodollar Rate Advances shall be automatically
Converted to Base Rate Advances as of the effective date of
such notice as provided hereinbelow.
Upon receipt of any such notice, the Agent shall promptly notify the
Participating Banks thereof. Promptly upon becoming aware that the
circumstances that caused such Participating Bank to deliver such notice no
longer exist, such Participating Bank shall deliver notice thereof to the
Account Party and the Agent withdrawing such prior notice (but the failure to
do so shall impose no liability upon such Participating Bank). Promptly upon
receipt of such withdrawing notice from such Participating Bank, the Agent
shall deliver notice thereof to the Account Party and the Participating Banks
and such suspension shall terminate. Prior to any Participating Bank giving
notice to the Account Party under this subsection (f), such Participating
Bank shall use reasonable efforts to change the jurisdiction of its
Applicable Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Participating Bank, be otherwise
disadvantageous to such Participating Bank. Any notice to the Account Party
by any Participating Bank shall be effective as to each Eurodollar Rate
Advance on the last day of the Interest Period currently applicable to such
Eurodollar Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Account Party and the
Agent.
(g) Market Rate Disruptions. If, (i) the Agent determines
that an adequate basis does not exist for the determination of the Eurodollar
Rate for Eurodollar Rate Advances or (ii) if the Majority Lenders shall
notify the Agent that the Eurodollar Rate will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances, the right of the Account Party to select
or receive or Convert into Eurodollar Rate Advances shall be forthwith
suspended until the Agent shall notify the Account Party and the
Participating Banks that the circumstances causing such suspension no longer
exist, and until such notification from the Agent, each request for or
Conversion into Eurodollar Rate Advances hereunder shall be deemed to be a
request for or Conversion into Base Rate Advances.
SECTION 4.04. Sharing of Payments, Etc. If any
Participating Bank shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise, but excluding any
proceeds received by assignments or sales of participations in accordance
with Section 10.06 hereof to a Person that is not an Affiliate of the Account
Party) on account of the Advances owing to it (other than pursuant to Section
4.03 hereof) in excess of its ratable share of payments on account of the
Advances obtained by all the Participating Banks, such Participating Bank
shall forthwith purchase from the other Participating Banks such
participation in the portions of the Advances owing to them as shall be
necessary to cause such purchasing Participating Bank to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Participating Bank, such purchase from each Participating Bank shall be
rescinded and such Participating Bank shall repay to the purchasing
Participating Bank the purchase price to the extent of such recovery together
with an amount equal to such Participating Bank's ratable share (according to
the proportion of (i) the amount of such Participating Bank's required
repayment to (ii) the total amount so recovered from the purchasing
Participating Bank) of any interest or other amount paid or payable by the
purchasing Participating Bank in respect of the total amount so recovered.
The Account Party agrees that any Participating Bank so purchasing a
participation from another Participating Bank pursuant to this Section 4.04
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Participating Bank were the direct creditor of the
Account Party in the amount of such participation. Notwithstanding the
foregoing, if any Participating Bank shall obtain any such excess payment
involuntarily, such Participating Bank may, in lieu of purchasing
participation from the other Participating Banks in accordance with this
Section 4.04, on the date of receipt of such excess payment, return such
excess payment to the Agent for distribution in accordance with Section
4.01(a) hereof.
SECTION 4.05. Taxes. (a) All payments by the Account
Party hereunder shall be made in accordance with Section 4.01, free and clear
of and without deduction for all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Participating Bank and the Issuing
Bank, taxes imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Participating Bank or
the Issuing Bank (as the case may be) is organized or any political
subdivision thereof and, in the case of each Participating Bank, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Participating Bank's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Account Party shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Participating
Bank or the Issuing Bank, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such
Participating Bank or the Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Account Party shall make such deductions and (iii) the Account
Party shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Account Party agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement (hereinafter referred to as "Other Taxes").
(c) The Account Party will indemnify each Participating
Bank and the Issuing Bank for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and any Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.05) paid by such
Participating Bank or the Issuing Bank (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Participating Bank or the Issuing Bank (as the case may be) makes
written demand therefor. If any Taxes or Other Taxes for which a
Participating Bank or the Issuing Bank has received payments from the Account
Party hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Participating Bank, such
Participating Bank shall promptly forward to the Account Party any such
refunded amount. The Account Party's, the Issuing Bank's and each
Participating Bank's obligations under this Section 4.05 shall survive the
payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes,
the Account Party will furnish to the Issuing Bank, at its address referred
to in Section 10.02 hereof, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Participating Bank not incorporated in the United
States or a jurisdiction within the United States shall, on or prior to the
date it becomes a Participating Bank hereunder, deliver to the Account Party
and the Issuing Bank such certificates, documents or other evidence, as
required by the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), or treasury regulations issued pursuant thereto, including
Internal Revenue Service Form 4224 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Participating Bank establishing that it is (i) not
subject to withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax treaty. Each
Participating Bank shall promptly notify the Account Party and the Issuing
Bank of any change in its Applicable Lending Office and shall deliver to the
Account Party and the Issuing Bank together with such notice such
certificates, documents or other evidence referred to in the immediately
preceding sentence. Unless the Account Party and the Issuing Bank have
received forms or other documents satisfactory to them indicating that
payments hereunder are not subject to United States of America withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Account Party or the Issuing Bank shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any
Participating Bank organized under the laws of a jurisdiction outside the
United States of America. Each Participating Bank represents and warrants
that each such form supplied by it to the Issuing Bank and the Account Party
pursuant to this Section 4.05, and not superseded by another form supplied by
it, is or will be, as the case may be, complete and accurate.
(f) Any Participating Bank claiming any additional amounts
payable pursuant to this Section 4.05 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate
or document requested by the Account Party or to change the jurisdiction of
its Applicable Lending Office if the making of such a filing or change would
avoid the need for or reduce the amount of any such additional amounts which
may thereafter accrue and would not, in the sole determination of such
Participating Bank, be otherwise disadvantageous to such Participating Bank.
SECTION 4.06. Obligations Absolute. The obligations of
the Account Party under this Agreement shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (as the same may be amended from time to time) under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Security Documents or Related
Documents or any document or agreement delivered in
connection therewith;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Account Party in respect of the Letter
of Credit or any other amendment or waiver of or any
consent to departure from all or any of the Loan Documents
or the Related Documents or any document or agreement
delivered in connection therewith;
(iii) the existence of any claim, set-off, defense
or other right which the Account Party may have at any time
against the Paying Agent, the Trustee or any other
beneficiary, or any transferee, of the Letter of Credit (or
any persons or entities for whom the Paying Agent, the
Trustee, any such beneficiary or any such transferee may be
acting), the Agent, the Issuing Bank, or any other person
or entity, whether in connection with this Agreement, the
transactions contemplated in any of the Loan Documents or
the Related Documents, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any
respect, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall
have engaged in gross negligence or willful misconduct with
respect thereto;
(v) payment by the Issuing Bank under the Letter
of Credit against presentation of a draft or certificate
which does not comply with the terms of the Letter of
Credit, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall
have engaged in gross negligence or willful misconduct with
respect thereto;
(vi) any exchange of, release of or non-perfection
of any interest in any collateral, or any release or
amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Account
Party in respect of the Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
SECTION 4.07. Evidence of Indebtedness. The Issuing Bank
and each Participating Bank shall maintain, in accordance with their usual
practice, an account or accounts evidencing the indebtedness of the Account
Party resulting from each drawing under the Letter of Credit (in the case of
the Issuing Bank) and from each Advance (in the case of each Participating
Bank) made from time to time hereunder and the amounts of principal and
interest payable and paid from time to time hereunder. In any legal action
or proceeding in respect of this Agreement, the entries made in such account
or accounts shall, in the absence of manifest error, be conclusive evidence
of the existence and amounts of the obligations of the Account Party therein
recorded.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Issuance of the
Letter of Credit. The obligation of the Issuing Bank to issue the Letter of
Credit and of each Participating Bank to make the Advances to be made by it
is subject to the fulfillment of the conditions precedent that the Agent
shall have received on or before the day of such issuance the following, each
dated such day (except where specified otherwise below), in form and
substance satisfactory to each Participating Bank (except where specified
otherwise below) and in sufficient copies for each Participating Bank:
(a) Agreements:
(i) Counterparts of this Agreement, duly executed and
delivered by the Account Party, the Agent, the Issuing Bank
and each Participating Bank listed on the signature pages
hereto.
(ii) Counterparts of the Pledge Amendment, duly executed
by the Account Party, Barclays, the Agent and the Issuing
Bank, and copies of the Pledge Agreement.
(iii) For each Participating Bank who shall so
request, executed copies (or duplicate copies thereof
certified as of the Closing Date by the Account Party in a
manner satisfactory to the Agent to be a true copy) of each
other Security Document, duly executed by the parties
thereto.
(iv) For each Participating Bank who shall so request,
executed copies (or duplicate copies thereof certified as
of the Closing Date by the Account Party in a manner
satisfactory to the Agent to be a true copy) of the Rate
Agreement and each Significant Contract and all amendments,
modifications and supplements thereto, in each such case
duly executed by the respective parties thereto.
(b) Corporate Matters:
(i) A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying that (A) there
has been delivered to the Agent, and to each other
Participating Bank known to such officers to have so
requested, true and correct copies of the Articles of
Incorporation of the Account Party and the By-laws of the
Account Party, in each case as in effect on the Closing
Date and (B) attached to such certificate are true and
correct copies of the resolutions of the Boards of
Directors of the Account Party approving, if and to the
extent necessary, this Agreement, the other Loan Documents,
the Related Documents to which it is a party and the other
documents to be delivered by or on behalf of the Account
Party hereunder and thereunder, and of all documents
evidencing other necessary corporate action, if any, with
respect to the execution, delivery and performance by or on
behalf of the Account Party of this Agreement, the other
Loan Documents and such Related Documents and certifying
that such resolutions and other corporate actions, if any,
are in full force and effect and have not been revoked,
rescinded or modified.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying the names and
true signatures of the officers of the Account Party
authorized to sign this Agreement, the other Loan Documents
and the other documents to be delivered hereunder and
thereunder.
(c) Governmental Approvals, Litigation and the Merger:
(i) A certificate of a duly authorized officer of the
Account Party certifying that attached thereto are true and
correct copies of all Governmental Approvals referred to in
clause (i) of the definition of "Governmental Approval"
required to be obtained or made by the Account Party in
connection with the execution and delivery of this
Agreement and the issuance of the Letter of Credit.
(ii) A certificate signed by the Assistant General
Counsel of NUSCO certifying that no court has granted a
motion for stay or any request for similar relief in
connection with the Plan, the Merger, the Loan Documents,
the Related Documents or the transactions contemplated
thereunder.
(iii) A certificate of a duly authorized officer of
the Account Party to the effect that there is no pending or
known threatened action or proceeding (including, without
limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the
Account Party or its properties before any court,
governmental agency or arbitrator (A) which affects or
purports to affect the legality, validity or enforceability
of the Loan Documents or the Related Documents or any of
them or (B) as to which there is a reasonable possibility
of an adverse determination and which, if adversely
determined, would materially adversely affect the financial
condition, properties, prospects or operations of the
Account Party; except, for purposes of clause (B) only,
such as is described in the Account Party's Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 or
in Schedule II hereto.
(iv) Certificates signed by duly authorized officers
of the Account Party and NU to the effect that all
conditions to the occurrence of the Merger were satisfied
or waived and the Merger was consummated on June 5, 1992.
(d) Financial, Accounting and Compliance Matters:
(i) An audited balance sheet of the Account Party as
at
December 31, 1994 and the related statements of the Account
Party's results of operations, retained earnings and cash
flows for and as of the year then ended, together with
copies of all Current Reports, if any, filed by the Account
Party with the Securities and Exchange Commission on or
after December 31, 1994.
(ii) A certificate signed by the Treasurer or Assistant
Treasurer of the Account Party, certifying as to the
absence of any material adverse change in the financial
condition, operations, properties or prospects of the
Account Party since December 31, 1994.
(iii) Financial projections, on assumptions
acceptable to the Participating Banks, demonstrating
projected compliance with Section 7.01(i) hereof and the
terms of this Agreement and the Financing Agreements.
(iv) A certificate signed by the Chief Financial
Officer, Treasurer or Assistant Treasurer of NU, certifying
as to the absence of any material adverse change in the
financial condition, operations, properties or prospects of
NU since December 31, 1994.
(v) A certificate of a duly authorized officer of the
Account Party to the effect that:
(A) the representations and warranties contained
in Section 6.01 are correct in all material respects on
and as of the Closing Date before and after giving
effect to the issuance of the Letter of Credit;
(B) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default,
or would result from the issuance of the Letter of
Credit;
(C) the Financing Agreements are in full force and
effect and no "Event of Default" or "Unmatured Default"
(as defined therein) has occurred and is continuing;
and
(D) the Series F First Mortgage Bonds were duly
issued to the Trustee in accordance with the Indenture,
are presently outstanding, and no "Event of Default"
(as defined in the First Mortgage Indenture) has
occurred and is continuing.
(e) Relating to the Issuance of the Bonds:
(i) A letter from Palmer & Dodge, Bond Counsel,
addressed to the Agent, the Issuing Bank and the
Participating Banks and stating therein that the Agent, the
Issuing Bank and the Participating Banks may rely on the
opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(ii) A letter from Palmer & Dodge, counsel to the
Issuer, addressed to the Agent, the Issuing Bank and the
Participating Banks and stating therein that the Agent, the
Issuing Bank and the Participating Banks may rely on the
opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(iii) A letter from Sulloway & Hollis, New Hampshire
counsel to the Account Party, addressed to the Agent, the
Issuing Bank and the Participating Banks and stating
therein that the Agent, the Issuing Bank and the
Participating Banks may rely on the opinion of such firm
rendered in connection with the issuance of the Taxable
Bonds, together with a copy of such opinion.
(iv) A letter from Day, Berry & Howard, counsel to the
Account Party, addressed to the Agent, the Issuing Bank and
the Participating Banks and stating therein that the Agent,
the Issuing Bank and the Participating Banks may rely on
the opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(v) Copies of the opinions of Drummond Woodsum &
MacMahon, special Maine counsel to the Account Party,
rendered in connection with the respective issuances of the
Taxable Bonds and the Existing Tax-Exempt Refunding Bonds,
authorizing reliance thereon by (A) Day, Berry & Howard in
connection with the corresponding opinions of that firm
referred to in clause (iv), above, and (B) by any party
authorized to rely on such opinions of Day, Berry & Howard.
(vi) Copies of the opinions of Zuccaro, Willis & Bent,
special Vermont counsel to the Account Party, rendered in
connection with the respective issuances of the Taxable
Bonds and the Existing Tax-Exempt Refunding Bonds,
authorizing reliance thereon by (A) Day, Berry & Howard in
connection with the corresponding opinions of that firm
referred to in clause (iv), above, and (B) by any party
authorized to rely on such opinions of Day, Berry & Howard.
(vii) Copies of all such other agreements, documents
and materials (including opinions of counsel or reliance
letters in respect thereof) as the Agent, the Issuing Bank
or any Participating Bank may reasonably request relating
to the issuance, offering and sale of the Taxable Bonds,
the Existing Tax-Exempt Refunding Bonds and the Series F
First Mortgage Bonds.
(f) Opinions of Counsel:
Favorable opinions of:
(i) Day, Berry & Howard, counsel to the Account
Party, in substantially the form of Exhibit 5.01A and
as to such other matters as the Majority Lenders,
through the Agent, may reasonably request;
(ii)Rath, Young and Pignatelli, P.A., special New
Hampshire counsel to the Account Party, in
substantially the form of Exhibit 5.01B and as to such
other matters as the Majority Lenders, through the
Agent, may reasonably request;
(iii) Jeffrey C. Miller, Assistant General Counsel
of NUSCO, in substantially the form of Exhibit 5.01C
and as to such other matters as the Majority Lenders,
through the Agent, may reasonably request;
(iv)Drummond Woodsum & MacMahon, special Maine
counsel to the Account Party, in substantially the form
of Exhibit 5.01D and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request;
(v) Zuccaro Willis & Bent, special Vermont counsel
to the Account Party, in substantially the form of
Exhibit 5.01E and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request; and
(vi)King & Spalding, special New York counsel to
the Agent and the Issuing Bank, in substantially the
form of Exhibit 5.01F.
(g) Miscellaneous:
(i) A certificate of Barclays, as agent thereunder, to
the effect that (A) all amounts payable in connection with
the Existing Reimbursement Agreement and the letter of
credit issued thereunder have been paid to it and (B) it
thereby surrenders any and all rights it may have under the
Related Documents arising in connection with the Existing
Reimbursement Agreement and the letter of credit issued
thereunder, except for any such rights it may have as an
indemnified party thereunder.
(ii) Letters from S&P and Moody's to the effect that
the
Taxable Bonds have been rated A-1+ and P-1, respectively,
and the Tax-Exempt Refunding Bonds have been rated A-1+ and
VMIG-1, respectively, and that the issuance of the Letter
of Credit in substitution for the Existing Letter of Credit
will not, by itself, result in a lowering of such ratings,
such letters to be in form and substance satisfactory to
the Issuing Bank.
(iii) Such other approvals, opinions and documents
as the Majority Lenders, through the Issuing Bank, may
reasonably request as to the legality, validity, binding
effect or enforceability of the Loan Documents or the
financial condition, properties, operations or prospects of
the Account Party.
SECTION 5.02. Additional Conditions Precedent to the
Issuance of the Letter of Credit. The obligation of the Issuing Bank to
issue the Letter of Credit and of each Participating Bank to make the
Advances to be made by it shall be subject to the further conditions
precedent that, on the date of the issuance of the Letter of Credit:
(a) the representations and warranties contained in
Section 6.01 shall be correct in all material respects on
and as of the Closing Date before and after giving effect
to the issuance of the Letter of Credit;
(b) no event shall have occurred and be continuing
which constitutes an Event of Default or Unmatured Default,
or would result from the issuance of the Letter of Credit;
(c) The Financing Agreements shall be in full force and
effect and no "Event of Default" or "Unmatured Default" (as
defined therein) shall have occurred and be continuing;
(d) No "Event of Default" (as defined in the First
Mortgage Indenture) shall have occurred and be continuing;
(e) The Series F First Mortgage Bonds shall have been
duly issued to the Trustee in accordance with the
Indenture, and be outstanding, and no "Event of Default
(as defined in the First Mortgage Indenture) shall have
occurred and be continuing; and
(f) The Account Party shal have paid all fees under or
referenced in Section 2.03 hereof, to the extent then due
and payable.
SECTION 5.03. Conditions Precedent to Initial Advances and
Conversions of Advances. The obligation of each Participating Bank to make
any Initial Advance or to Convert any Term Advance shall be subject to the
conditions precedent that, on the date of such Initial Advance or Conversion,
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (other than the last
sentence of subsection (e) and clause (ii) of subsection
(f) thereof) are true and correct on and as of the date of
such Initial Advance or Conversion, before and after giving
effect to such Initial Advance or Conversion and to the
application of the proceeds (if any) therefrom, as though
made on and as of such date; and
(b) no event has occurred and is continuing which
constitutes an Event of Default.
Unless the Account Party shall have previously advised the
Agent in writing that one or more of the statements contained in subsections
(a) and (b) of this Section 5.03 is no longer true, the Account Party shall
be deemed to have represented and warranted, on and as of the date of any
Initial Advance or Conversion, that the above statements are true.
SECTION 5.04. Conditions Precedent to Term Advances. The
obligation of each Participating Bank to make any Term Advance shall be
subject to the conditions precedent that, on the date of such Term Advance
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (including the last sentence
of subsection (e) and clause (ii) of subsection (f)
thereof) are true and correct on and as of the date of such
Term Advance, before and after giving effect to such Term
Advance and to the application of the proceeds therefrom,
as though made on and as of such date; and
(b) no event has occurred and is continuing which
constitutes an Event of Default or an Unmatured Default.
Unless the Account Party shall have previously advised the Agent in writing
that one or more of the statements contained in subsections (a) and (b) of
this Section 5.04 is no longer true, the Account Party shall be deemed to
have represented and warranted, on and as of the date of any Term Advance,
that the above statements are true.
SECTION 5.05. Reliance on Certificates. The Agent, the
Issuing Bank and the Participating Banks shall be entitled to rely
conclusively upon the certificates delivered from time to time by officers of
the Account Party, NU, NUSCO and the other parties to the Loan Documents,
Related Documents and the Significant Contracts as to the names, incumbency,
authority and signatures of the respective persons named therein until such
time as the Agent may receive a replacement certificate, in form acceptable
to the Agent, from an officer of such Person identified to the Agent as
having authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such Person
thereafter authorized to act on behalf of such Person.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the
Account Party. The Account Party represents and warrants as follows:
(a) The Account Party is a corporation duly organized and
validly existing under the laws of the State of New Hampshire. The Account
Party is duly qualified to do business in, and is in good standing in, all
other jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualifications necessary.
(b) The execution, delivery and performance by the Account
Party of the Rate Agreement and of each Loan Document, Related Document and
Significant Contract to which it is a party, are within the Account Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not contravene (i) the Account Party's charter or
by-laws or (ii) any law or legal or contractual restriction binding on or
affecting the Account Party; and such execution, delivery and performance do
not or will not result in or require the creation of any Lien (other than
pursuant to the Security Documents) upon or with respect to any of its
properties.
(c) All Governmental Approvals referred to in clause (i) of
the definition of "Governmental Approvals" have been duly obtained or made,
and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired, except as described in Schedule II hereto, and
except that no representation or warranty is made concerning the applicable
period of time for review, rehearing or appeal with respect to Governmental
Approvals of the Issuer in connection with the issuance of the Bonds. The
Account Party has obtained or made all Governmental Approvals referred to in
clause (ii) of the definition of "Governmental Approvals", except (i) those
which are not yet required but which are obtainable in the ordinary course of
business as and when required, (ii) those the absence of which would not
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party and (iii) those which the Account Party is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which the Account Party is contesting in good faith by
appropriate proceedings or by other appropriate means; in each case described
in the foregoing clause (iii), such attempt or contest, and any delay
resulting therefrom, is not reasonably expected to have a material adverse
effect on the financial condition, properties, prospects or operations of the
Account Party or to magnify to any significant degree any such material
adverse effect that would reasonably be expected to result from the absence
of such Governmental Approval.
(d) This Agreement, the Rate Agreement, each other Loan
Document, Related Document and each Significant Contract to which the Account
Party is a party have been duly executed and delivered by or on behalf of the
Account Party and are legal, valid and binding obligations of the Account
Party enforceable against the Account Party in accordance with their
respective terms; subject to the qualifications, however, that the
enforcement of the rights and remedies herein and therein is subject to
bankruptcy and other similar laws of general application affecting rights and
remedies of creditors, that the remedy of specific performance or of
injunctive relief is subject to the discretion of the court before which any
proceedings therefor may be brought, and that indemnification against
violations of securities and similar laws may be subject to matters of public
policy.
(e) The audited balance sheet of the Account Party as at
December 31, 1994 and the related statements of the Account Party setting
forth the results of operations, retained earnings and cash flows of the
Account Party for the fiscal year then ended, copies of which have been
furnished to each Participating Bank, fairly present in all material respects
the financial condition, results of operations, retained earnings and cash
flows of the Account Party at and for the year ended on such date, and have
been prepared in accordance with generally accepted accounting principles
consistently applied. Except as reflected in such financial statements, the
Account Party has no material non-contingent liabilities, and all contingent
liabilities have been appropriately reserved. The financial projections
referred to in Section 5.01(d)(iii) hereof have been prepared in good faith
and on reasonable assumptions. Since December 31, 1994, there has been no
material adverse change in the Account Party's financial condition,
operations, properties or prospects.
(f) There is no pending or known threatened action or
proceeding (including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations) affecting the Account
Party or its properties before any court, governmental agency or arbitrator
(i) which affects or purports to affect the legality, validity or
enforceability of the Loan Documents or the Related Documents or any of them
or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially adversely
affect the financial condition, properties, prospects or operations of the
Account Party; except, for purposes of clause (ii) only, such as is described
in the Account Party's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 or in Schedule II hereto.
(g) All insurance required by Section 7.01(c) hereof is in
full force and effect.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which would
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party, except as disclosed to and consented by the
Majority Lenders in writing. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of the Account Party (Form 5500
Series), if any, there has been no material adverse change in the funding
status of the ERISA Plans referred to therein and no "prohibited transaction"
has occurred with respect thereto, except as described in the Account Party's
Annual Report on Form 10-K for the year ended December 31, 1994. Neither the
Account Party nor any of its ERISA Affiliates has incurred nor reasonably
expects to incur any material withdrawal liability under ERISA to any ERISA
Multiemployer Plan, except as disclosed to and consented by the Majority
Lenders in writing.
(i) The Major Electric Generating Plants are on land in
which the Account Party owns a full or an undivided fee interest subject only
to Liens permitted by Section 7.02(a) hereof, which do not materially impair
the usefulness to the Account Party of such properties; the electric
transmission and distribution lines of the Account Party in the main are
located in New Hampshire and on land owned in fee by the Account Party or
over which the Account Party has easements, or are in or over public highways
or public waters pursuant to adequate statutory or regulatory authority, and
any defects in the title to such transmission and distribution lands or
easements are in the main curable by the exercise of the Account Party's
right of eminent domain upon a finding that such eminent domain proceedings
are necessary to meet the reasonable requirements of service to the public;
the Account Party enjoys peaceful and undisturbed possession under all of the
leases under which it is operating, none of which contains any unusual or
burdensome provision which will materially affect or impair the operation of
the Account Party; and the Security Documents will create valid Liens in the
Collateral, subject only to Liens permitted by Section 7.02(a) hereof, and
all filings and other actions necessary to perfect and protect such security
interests (to the extent such security interests may be perfected or
protected by filing) have been taken; provided, however, that no
representation is made as to any Lien purported to be created in favor of the
Trustee with respect to any interest of the Issuer in the Indenture.
(j) No material part of the properties, business or
operations of the Account Party are materially adversely affected by any
fire, explosion, accident, strike, lockout or other labor disputes, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (except for any such circumstance, if any, which is covered by
insurance which coverage has been confirmed and not disputed by the relevant
insurer or by fully-funded self-insurance programs).
(k) The Account Party has filed all tax returns (Federal,
state and local) required to be filed and paid taxes shown thereon to be due,
including interest and penalties, or, to the extent the Account Party is
contesting in good faith an assertion of liability based on such returns, has
provided adequate reserves in accordance with generally accepted accounting
principles for payment thereof.
(l) No exhibit, schedule, report or other written
information provided by the Account Party or its agents to the Agent, the
Issuing Bank or the Participating Banks in connection with the negotiation,
execution and closing of this Agreement or the issuance of the Bonds
(including, without limitation, the Information Memorandum and the Official
Statements) knowingly contained when made any material misstatement of fact
or knowingly omitted to state any material fact necessary to make the
statements contained therein not misleading in light of the circumstances
under which they were made.
(m) No event has occurred and is continuing which
constitutes a material default under the Rate Agreement or any Significant
Contract.
(n) No proceeds of any Advance will be used (i) to acquire
any equity security of a class which is registered pursuant to Section 12 of
the Securities Exchange Act of 1934 or (ii) to buy or carry any margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System) or to extend credit to others for such purpose. The
Account Party (X) is not an "investment company" within the meaning ascribed
to that term in the Investment Company Act of 1940 or (Y) is not engaged in
the business of extending credit for the purpose of buying or carrying margin
stock.
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
SECTION 7.01. Affirmative Covenants. So long as any
amounts shall remain available to be drawn under the Letter of Credit or any
Advance or other amounts shall remain unpaid hereunder or any Participating
Bank shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 3.02 and Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property except to
the extent the Account Party is contesting the same in good faith by
appropriate proceedings and has set aside adequate reserves for the payment
thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering the Account Party and its properties in effect at all times in such
amounts and covering such risks as may be required by law and in addition as
is usually carried by companies engaged in similar businesses and owning
similar properties.
(d) Preservation of Existence, Etc. Preserve and maintain
its corporate existence, material rights (statutory and otherwise) and
franchises except as otherwise expressly provided in the Plan or in the
Pledge Agreement, the PSNH Mortgage, or the Collateral Agency Agreement
referred to in the Financing Agreements.
(e) Compliance with Laws, Etc. Comply in all material
respects with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including without limitation any such
laws, rules, regulations and orders relating to utilities, zoning,
environmental protection, use and disposal of Hazardous Substances, land use,
construction and building restrictions, and employee safety and health
matters relating to business operations, except to the extent (i) that the
Account Party is contesting the same in good faith by appropriate proceedings
or (ii) that any such non-compliance, and the enforcement or correction
thereof, would not materially adversely affect the financial condition,
properties, prospects or operations of the Account Party as a whole.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice, permit the Issuing Bank and its agents and
representatives to examine and make copies of and abstracts from the records
and books of account of, and the properties of, the Account Party and to
discuss the affairs, finances and accounts of the Account Party with the
Account Party and of its officers, directors and accountants.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all financial
transactions of the Account Party and the assets and business of the Account
Party, in accordance with good accounting practices consistently applied.
(h) Collection of Accounts Receivable. Promptly bill, and
diligently pursue collection of, in accordance with customary utility
practices, all accounts receivable owing to the Account Party and all other
amounts that may from time to time be owing to the Account Party for services
rendered or goods sold.
(i) Common Equity to Total Capitalization Ratio. Maintain
at all times a ratio of Common Equity to Total Capitalization of not less
than the respective ratio specified below:
Period Ratio
Closing Date through and
including June 30, 1996 0.270:1
July 1, 1996 through and
including June 30, 1997 0.285:1
July 1, 1997 through and
including the Termination
Date 0.300:1
(j) Maintenance of Properties, Etc. (i) As to properties
of the type described in Section 6.01(i) hereof, maintain title of the
quality described therein; and (ii) preserve, maintain, develop, and operate
in substantial conformity with all laws, material contractual obligations and
prudent practices prevailing in the industry, all of its properties which are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except to the extent such non-
conformity would not materially adversely affect the financial condition,
properties, prospects or operations of the Account Party as a whole.
(k) Governmental Approvals. Duly obtain on or prior to
such date as the same may become legally required, and thereafter maintain in
effect at all times, all Governmental Approvals on its part to be obtained,
except those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of the Account Party
as a whole.
(l) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or that any Participating Bank through the Issuing Bank may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Security Documents.
(m) Related Documents. Perform and comply in all material
respects with each of the provisions of each Related Document to which it is
a party.
SECTION 7.02. Negative Covenants. So long as any amount
shall remain available to be drawn under the Letter of Credit or any Advance
or other amounts shall remain unpaid hereunder or any Participating Bank
shall have any Commitment, the Account Party will not, without the written
consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist
any lien, security interest, or other charge or encumbrance (including the
lien or retained security title of a conditional vendor) of any kind, or any
other type of preferential arrangement the intent or effect of which is to
assure a creditor against loss or to prefer one creditor over another
creditor upon or with respect to any of its properties of any character (any
of the foregoing being referred to herein as a "Lien") whether now owned or
hereafter acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction a financing statement which names the Account Party as debtor,
sign any security agreement authorizing any secured party thereunder to file
such financing statement, or assign accounts, excluding, however, from the
operation of the foregoing restrictions the Liens created or perfected under
or in connection with the Pledge Agreement, the Pledge Agreement (as defined
in the Series E Reimbursement Agreement), the Financing Agreements, the Notes
and the Collateral Agency Agreement referred to in the Financing Agreements,
the PSNH Mortgage, and the following, whether now existing or hereafter
created or perfected:
(i) Liens on Property specifically reserved, excepted
and excluded by subparagraphs (c) through (g) and
subparagraph (j) following the Granting Clauses section of
the First Mortgage Indenture;
(ii) Permitted Encumbrances (as defined in the PSNH
Mortgage) on the Indenture Assets (except Liens referred to
in paragraphs (s) and (t) of Schedule C to the PSNH
Mortgage hereafter directly created by the Account Party,
provided, however, that the Account Party may create any
such Lien with the consent of the Majority Lenders (as
defined in the Financing Agreements) if such Lien would not
materially adversely affect the security granted under the
PSNH Mortgage, as determined by the Majority Lenders (as
defined in the Financing Agreements) in their reasonable
discretion), provided that in no event shall the
outstanding principal amount of the First Mortgage Bonds
exceed at any time the First Mortgage Bond Amount (as
defined in the Financing Agreements); and
(iii) Liens referred to in paragraphs (b) through
(t) of Schedule C to the PSNH Mortgage on realty or
personalty that is subject to the Lien of the First
Mortgage Indenture but is not also subject to the Lien of
the PSNH Mortgage; provided, however, that the aggregate
principal amount of the Debt at any one time outstanding
secured by purchase money Liens permitted by paragraph (m)
of Schedule C to the PSNH Mortgage, including Liens of a
conditional vendor that are the functional equivalent of
purchase money liens, shall not exceed $20,000,000.
(b) Debt. Create, incur or assume any Debt unless, after
giving effect thereto, (i) no Event of Default or Unmatured Default shall
have occurred and be continuing on the date of such creation, incurrence or
assumption and (ii) the Account Party shall have determined that, on the
basis of the assumptions and forecasts set forth in the most recent operating
budget/forecast of operations delivered pursuant to Section 7.03(iv) hereof
(which the Account Party continues to believe to be reasonable), the Account
Party will continue to be in compliance at all times with the provisions of
Section 7.01(i) hereof. The Account Party will furnish evidence of its
compliance with this subsection (b) for each fiscal quarter pursuant to
Section 7.03(ii) hereof.
(c) Mergers, Etc. Merge with or into or consolidate with
or into, or acquire all or substantially all of the assets of, any Person.
(d) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of all or any substantial part of its assets (other than
sales, transfers or other dispositions of receivables), whether in a single
transaction or series of transactions during any consecutive 12-month period,
except for sales, leases, transfers or other dispositions in the ordinary
course of the Account Party's business in accordance with ordinary and
customary terms and conditions. For purposes of this subsection (d), any
transaction or series of transactions during any consecutive 12-month period
shall be deemed to involve a "substantial part" of the Account Party's assets
if, in the aggregate, (A) the value of such assets equals or exceeds 10% of
the total assets of the Account Party reflected in the financial statements
of the Account Party delivered pursuant to Section 7.03(ii) or 7.03(iii)
hereof in respect of the fiscal quarter or year ending on or immediately
prior to the commencement of such 12-month period or (B) for the four
calendar quarters ending on or immediately prior to commencement of such 12-
month period, the gross revenue derived by the Account Party from such assets
shall equal or exceed 10% of the total gross revenue of the Account Party.
(e) Restricted Payments. Declare or pay any dividend, or
make any payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any share of any class of capital
stock of the Account Party (other than stock splits and dividends payable
solely in equity securities of the Account Party), or purchase, redeem,
retire, or otherwise acquire for value any shares of any class of capital
stock of the Account Party or any warrants, rights, or options to acquire any
such Debt or shares, now or hereafter outstanding, or make any distribution
of assets to any of its shareholders (any such transaction being a
"Restricted Payment") except for Restricted Payments made in compliance with
the following conditions:
(i) The Account Party may not make any Restricted
Payments if an Event of Default or Unmatured Default shall
have occurred and be continuing.
(ii) The Account Party may not make any Restricted
Payments during any fiscal quarter if, after giving effect
thereto (and to the other computations set forth below in
this clause (ii)), the Account Party would not be in full
compliance with Section 7.01(i) hereof. For purposes of
determining compliance with Section 7.01(i) under this
clause (ii), computations under Section 7.01(i) shall be
made as of the date of such Restricted Payment, except
that, retained earnings shall be determined as of the last
day of the immediately preceding fiscal quarter (adjusted
for all Restricted Payments made after the last day of such
preceding fiscal quarter).
(iii) The Account Party may not make any Restricted
Payments unless, after giving effect thereto, the Account
Party shall have determined that, on the basis of the
assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant
to Section 7.03(iv) hereof (which the Account Party
continues to believe to be reasonable) the Account Party
will continue to be in compliance at all times with the
provisions of Section 7.01(i) hereof.
Notwithstanding anything contrary contained in this Section 7.02(e), the
Account Party may declare and pay regularly scheduled quarterly dividends on
the Preferred Stock and declare and pay into escrow, prior to the date
required to be paid to holders of Preferred Stock, with respect to the fifth
and sixth dividend periods following May 16, 1991 all or any part of the
dividends scheduled to accrue during such periods, if, immediately prior to
and after giving effect to any such payment, no Event of Default or Unmatured
Default shall have occurred and be continuing.
(f) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate to terminate, any ERISA Plan so as to result in any material
(in the opinion of the Majority Lenders) liability of the Account Party to
the PBGC, or (ii) permit to exist any occurrence of any Reportable Event (as
defined in Title IV of ERISA), or any other event or condition, which
presents a material (in the opinion of the Majority Lenders) risk of such a
termination by the PBGC of any ERISA Plan and such a material liability to
the Account Party.
(g) Change in Nature of Business. Engage in any material
business activity other than those established and engaged in on the date
hereof.
(h) Ownership in Seabrook and Nuclear Plants. Acquire,
directly or indirectly, any ownership interest or any additional ownership
interest of any kind in any nuclear-powered electric generating plant.
(i) Subsidiaries. Create or suffer to exist any active
subsidiaries other than Properties, Inc., a New Hampshire corporation; or
permit any material assets or business to be maintained at or conducted by
any subsidiary except for the assets owned by Properties, Inc. not exceeding
$20,000,000.
SECTION 7.03. Reporting Obligations. So long as any
amount shall remain available to be drawn under the Letter of Credit or any
Advance or other amounts shall remain unpaid hereunder or any Participating
Bank shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing, furnish to the Agent in
sufficient copies for the Issuing Bank and each Participating Bank, the
following:
(i) as soon as possible and in any event within
five (5) days after the occurrence of each Event of
Default or Unmatured Default continuing on the date of
such statement, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the
Account Party setting forth details of such Event of
Default or Unmatured Default and the action which the
Account Party proposes to take with respect thereto;
(ii)as soon as available and in any event within
fifty (50) days after the end of each of the first
three quarters of each fiscal year of the Account
Party, (A) if and so long as the Account Party is
required to submit to the Securities and Exchange
Commission a report on Form 10-Q, a copy of the Account
Party's report on Form 10-Q submitted to the Securities
and Exchange Commission with respect to such quarter
and (B) if the Account Party ceases to be required to
submit such report, a balance sheet of the Account
Party as of the end of such quarter and statements of
income and retained earnings and of cash flows of the
Account Party for the period commencing at the end of
the previous fiscal year and ending with the end of
such quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by
the Chief Financial Officer, Treasurer or Assistant
Treasurer of the Account Party as having been prepared
in accordance with generally accepted accounting
principles consistent with those applied in the
preparation of the financial statements referred to in
Section 6.01(e) hereof, in each such case, delivered
together with a certificate of said officer (x) stating
that no Event of Default or Unmatured Default has
occurred and is continuing or, if an Event of Default
or Unmatured Default has occurred and is continuing, a
statement as to the nature thereof and the action which
the Account Party proposes to take with respect
thereto, (y) demonstrating compliance with Section
7.01(i) hereof for and as of the end of such fiscal
quarter and compliance with Sections 7.02(b) and (e)
hereof, as of the dates on which any Debt was created,
incurred or assumed (using the Account Party's most
recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the
definition of "Debt") or any Restricted Payment was
made during such quarter, and (z) demonstrating, after
giving effect to the incurrence of any Debt created,
incurred or assumed during such fiscal quarter (using
the Account Party's most recent annual actuarial
determinations in the computation of Debt referred to
in clause (ix) in the definition of "Debt") and after
giving effect to any Restricted Payment made during
such fiscal quarter, compliance with Section 7.01(i)
hereof for the remainder of the fiscal year of the
Account Party based on the operating budget/forecast of
operations delivered pursuant to Section 7.03(iv)
hereof for such fiscal year, such demonstrations to be
in a schedule (in form satisfactory to the Majority
Lenders) which sets forth the computations used by the
Account Party in determining such compliance;
(iii)as soon as available and in any event within
105 days after the end of each fiscal year of the
Account Party, (A) if and so long as the Account Party
is required to submit to the Securities and Exchange
Commission a report on Form 10-K, a copy of the Account
Party's report on Form 10-K submitted to the Securities
and Exchange Commission with respect to such year and
(B) if the Account Party ceases to be required to
submit such report, a copy of the annual audit report
for such year for the Account Party including therein a
balance sheet of the Account Party as of the end of
such fiscal year and statements of income and retained
earnings and of cash flows of the Account Party for
such fiscal year, in each case certified by a
nationally-recognized independent public accountant, in
each such case delivered together with a certificate of
the Chief Financial Officer, Treasurer or Assistant
Treasurer (x) stating that the financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of financial statements referred to in
Section 6.01(e) hereof, and that no Event of Default or
Unmatured Default has occurred and is continuing, or if
an Event of Default or Unmatured Default has occurred
and is continuing, stating the nature thereof and the
action which the Account Party proposes to take with
respect thereto and (y) demonstrating compliance with
Section 7.01(i) hereof for and as of the end of such
fiscal year and compliance with Sections 7.02(b) and
(e) hereof, as of the dates on which any Debt was
created, incurred or assumed (using the Account Party's
most recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the
definition of "Debt") or any Restricted Payment was
made during the last fiscal quarter of the Account
Party, such demonstrations to be in a schedule (in form
satisfactory to the Majority Lenders) which sets forth
the computations used by the Account Party in
determining such compliance.
(iv)as soon as available and in any event before
March 31 of each fiscal year, a copy of an operating
budget/forecast of operations of the Account Party as
approved by the Board of Directors of the Account Party
in form satisfactory to the Participating Banks for
such fiscal year of the Account Party, together with a
certificate of the Chief Financial Officer, Treasurer
or Assistant Treasurer of the Account Party stating
that such budget/forecast was prepared in good faith
and on reasonable assumptions;
(v) as soon as available and in any event no later
than the New Hampshire Public Utilities Commission
shall have received the Account Party's annual
submission, if any, relating to the "return on equity
collar" referred to in the Rate Agreement, a copy of
such annual submission of the Account Party;
(vi)as soon as possible and in any event
(A) within 30 days after the Account Party knows or has
reason to know that any ERISA Plan Termination Event
described in clause (i) of the definition of ERISA Plan
Termination Event with respect to any ERISA Plan or
ERISA Multiemployer Plan has occurred and (B) within 10
days after the Account Party knows or has reason to
know that any other ERISA Plan Termination Event with
respect to any ERISA Plan or ERISA Multiemployer Plan
has occurred, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the
Account Party describing such ERISA Plan Termination
Event and the action, if any, which the Account Party
proposes to take with respect thereto;
(vii)promptly after receipt thereof by the Account
Party or any of its ERISA Affiliates from the PBGC,
copies of each notice received by the Account Party or
any such ERISA Affiliate of the PBGC's intention to
terminate any ERISA Plan or ERISA Multiemployer Plan or
to have a trustee appointed to administer any ERISA
Plan or ERISA Multiemployer Plan;
(viii)promptly and in any event within 30 days
after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series)
with respect to each ERISA Plan (if any) to which the
Account Party is a contributing employer;
(ix) promptly after receipt thereof by the Account
Party or any of its ERISA Affiliates from an ERISA
Multiemployer Plan sponsor, a copy of each notice
received by the Account Party or any of its ERISA
Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount
of at least $10,000,000 pursuant to Section 4202 of
ERISA in respect of which the Account Party may be
liable;
(x) promptly after the Account Party becomes aware
of the occurrence thereof, notice of all actions,
suits, proceedings or other events (A) of the type
described in Section 6.01(f), or (B) which purport to
affect the legality, validity or enforceability of any
of the Loan Documents or Significant Contracts;
(xi)promptly after the sending or filing thereof,
copies of all such proxy statements, financial
statements, and reports which the Account Party sends
to its public security holders (if any) or files with,
and copies of all regular, periodic and special reports
and all registration statements and periodic or special
reports, if any, which the Account Party files with,
the Securities and Exchange Commission or any
governmental authority which may be substituted
therefor, or with any national securities exchange;
(xii)promptly after receipt thereof, any assertion
of the character described in Section 8.01(h) hereof
and the action the Account Party proposes to take with
respect thereto;
(xiii)promptly after knowledge of any material
default under the Rate Agreement or any Significant
Contract, notice of such default and the action the
Account Party proposes to take with respect thereto;
(xiv)promptly after knowledge of any amendment,
modification, or other change to the Rate Agreement or
any Significant Contract or to any Governmental
Approval affecting the Rate Agreement, notice of such
amendment, modification or other change, it being
understood that for purposes of this clause (xiv) any
filing by the Account Party in the ordinary course of
the Account Party's business with, or order issued or
action taken by, a governmental authority or regulatory
body after May 16, 1991 to implement the terms of the
Rate Agreement shall not be considered an amendment,
modification or change to a Governmental Approval
affecting the Rate Agreement; and
(xv)promptly after requested, such other
information respecting the financial condition,
operations, properties, prospects or otherwise, of the
Account Party as the Issuing Bank or Majority Lenders
may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events
shall each constitute an "Event of Default" if the same shall occur and be
continuing after the grace period and notice requirement (if any) applicable
thereto:
(a) The Account Party shall fail to pay any interest on any
Advance or pursuant to Section 4.02 hereof within two days after the same
becomes due; the Account Party shall fail to reimburse the Issuing Bank for
any Interest Drawing (as defined in the Letter of Credit) within two days
after such reimbursement becomes due; or the Account Party shall fail to make
any other payment required to be made pursuant to Article II or Article III
hereof when due; or
(b) Any representation or warranty made by the Account
Party or NU (or any of their respective officers or agents) in this Agreement
or the Pledge Agreement or in any certificate or other writing delivered
pursuant to this Agreement shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Account Party shall fail to perform or observe any
term or covenant on its part to be performed or observed contained in
Sections 7.01(a), (d) or (i), Section 7.02 or Section 7.03(i) hereof; or
(d) The Account Party shall fail to perform or observe any
other term or covenant on its part to be performed or observed contained in
this Agreement or the Pledge Agreement and such failure shall remain
unremedied, after written notice thereof shall have been given to the Account
Party by the Agent, the Issuing Bank or any Participating Bank, for a period
of 30 days; or
(e) The Account Party shall fail to pay any of its Debt
when due (including any interest or premium thereon but excluding Debt
arising hereunder or under or in connection with the Financing Agreements and
excluding other Debt aggregating in no event more than $10,000,000 in
principal amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in any
agreement or instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt (including, for purposes of this clause and the next succeeding
clause of this Section 8.01(e), the Debt arising under or in connection with
the Financing Agreements) shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment or as a result of the Account Party's exercise of a prepayment
option) prior to the stated maturity thereof; unless in each such case the
obligee under or holder of such Debt or the trustee with respect to such Debt
shall have waived in writing such circumstance without consideration having
been paid by the Account Party so that such circumstance is no longer
continuing; or
(f) The Account Party shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Account Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of its debts under any law relating to bankruptcy, insolvency,or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of a
proceeding instituted against the Account Party, either the Account Party
shall consent thereto or such proceeding shall remain undismissed or unstayed
for a period of 90 days or any of the actions sought in such proceeding
(including without limitation the entry of an order for relief against the
Account Party or the appointment of a receiver, trustee, custodian or other
similar official for the Account Party or any of its property) shall occur;
or the Account Party shall take any corporate or other action to authorize
any of the actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Account Party or its
properties and either enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and shall not have been stayed or
there shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) Any material provision of any Loan Document or any
Related Document shall for any reason other than the express terms thereof or
the exercise of any right or option expressly contained therein cease to be
valid and binding on any party thereto; or any party thereto other than the
Participating Banks shall so assert in writing, provided that in the case of
any party other than the Account Party making such assertion in respect of
any Related Document, such assertion shall not in and of itself constitute an
Event of Default hereunder until (i) such asserting party shall cease to
perform under and in compliance with such Related Document, (ii) the Account
Party shall fail to diligently prosecute, by appropriate action or
proceedings, a rescission of such assertion or a binding determination as to
the merits thereof or (iii) such a binding determination shall have been made
in favor of such asserting party's position; or
(i) The Security Documents shall for any reason, except to
the extent permitted by the terms thereof, fail or cease to create valid and
perfected Liens (to the extent purported to be granted by such documents and
subject to the exceptions permitted thereunder) in any of the Collateral
(other than Liens in favor of the Trustee with respect to the interests of
the Issuer under the Indenture), provided, that such failure or cessation
relating to any non-material portion of such Collateral shall not constitute
an Event of Default hereunder unless the same shall not have been corrected
within 30 days after the Account Party becomes aware thereof; or
(j) The Account Party shall not have in full force and
effect any or all insurance required under Section 7.01(c) hereof or there
shall be incurred any uninsured damage, loss or destruction of or to the
Account Party's properties in an amount not covered by insurance (including
fully-funded self-insurance programs) which the Majority Lenders consider to
be material; or
(k) NU shall cease to own all of the outstanding common
stock of the Account Party, free and clear of any Liens; or
(l) An event of default (as defined therein) shall have
occurred and be continuing under the Indenture or the First Mortgage
Indenture.
(m) An event of default (as defined therein) shall have
occurred and be continuing under the Series E Reimbursement Agreement.
SECTION 8.02. Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default, then, and in
any such event, the Agent with the concurrence of the Issuing Bank may, and
upon the direction of the Majority Lenders the Agent shall (i) if the Letter
of Credit shall not have been issued, instruct the Issuing Bank to (whereupon
the Issuing Bank shall) by notice to the Account Party declare its commitment
to issue the Letter of Credit to be terminated, whereupon the same shall
forthwith terminate, (ii) if the Letter of Credit shall have been issued,
instruct the Issuing Bank to (whereupon the Issuing Bank shall) furnish to
the Trustee and the Paying Agent written notice of such Event of Default in
accordance with Section 6.01(a)(iv) of the Indenture and of the Issuing
Bank's determination to terminate the Letter of Credit on the fifth business
day (as defined in the Indenture) following the Trustee's and Paying Agent's
receipt of such notice, (iii) if the Letter of Credit shall have been issued,
instruct the Issuing Bank to (whereupon the Issuing Bank shall) furnish to
the Trustee and the Paying Agent written notice that the Interest Component
will not be reinstated in the amount of one or more Interest Drawings, all as
provided in the Letter of Credit; (iv) declare the Advances and all other
principal amounts outstanding hereunder, all interest thereon and all other
amounts payable hereunder to be forthwith due and payable, whereupon the
Advances and all other principal amounts outstanding hereunder, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Account Party, and (v)
instruct the Issuing Bank to (whereupon the Issuing Bank shall) exercise all
the rights and remedies provided herein and under and in respect of the
Security Documents; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Account Party under
the Federal Bankruptcy Code, (A) the commitment of the Issuing Bank to issue
the Letter of Credit, the Commitments and the obligations of the
Participating Banks to make Advances shall automatically be terminated, and
(B) the Advances and all other principal amounts outstanding hereunder, all
interest accrued and unpaid thereon and all other amounts payable hereunder
shall automatically become due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived
by the Account Party.
SECTION 8.03. Issuing Bank to Notify First Mortgage
Trustee, Others. The Issuing Bank shall promptly notify the First Mortgage
Trustee by telephone, confirmed in writing, of the occurrence of any Event of
Default. In addition, the Issuing Bank shall furnish to the Agent, the
Account Party, the Paying Agent and the Issuer a copy of (a) any notice
furnished to the First Mortgage Trustee pursuant to the preceding sentence
and (b) any notice delivered to the Trustee pursuant to clause (ii) or clause
(iii) of Section 8.02. Notwithstanding the foregoing, no failure of the
Issuing Bank to give any notice (or copy of a notice) as contemplated by this
Section 8.03 shall limit or impair any rights of the Issuing Bank, the Agent
or any Participating Bank or the exercise of any remedy hereunder, nor shall
the Issuing Bank, the Agent or any Participating Bank incur any liability as
a result of any such failure.
ARTICLE IX
THE AGENT, THE PARTICIPATING
BANKS AND THE ISSUING BANK
SECTION 9.01. Authorization of Agent; Actions of Agent and
Issuing Bank. The Issuing Bank and each Participating Bank hereby appoint
and authorize the Agent to take such action as agent on their behalf and to
exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; provided, however, that neither the Agent nor the Issuing Bank shall
be required to take any action which exposes the Agent or the Issuing Bank to
personal liability or which is contrary to this Agreement or applicable law.
As to any matters not expressly provided for by any Related Document
(including, without limitation, enforcement or collection thereof), neither
the Agent nor the Issuing Bank shall be required to exercise any discretion
or take any action. The Agent agrees to deliver promptly (i) to the Issuing
Bank and each Participating Bank copies of each notice delivered to it by the
Account Party and (ii) to each Participating Bank copies of each notice
delivered to it by the Issuing Bank, in each case pursuant to the terms of
this Agreement.
SECTION 9.02. Reliance, Etc. Neither the Agent, the
Issuing Bank, nor any of their directors, officers, agents or employees shall
be liable for any action taken or omitted to be taken by it or them under or
in connection with this Agreement or any Related Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction. Without limitation of the generality of the
foregoing, each of the Agent and the Issuing Bank (i) may consult with legal
counsel (including counsel for the Account Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Participating Bank and shall not be responsible to any
Participating Bank for any statements, warranties or representations made in
or in connection with this Agreement or any Related Document; (iii) shall not
have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any Related
Document on the part of the Account Party to be performed or observed, or to
inspect any property (including the books and records) of the Account Party;
(iv) shall not be responsible to any Participating Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Related Document or any other instrument or
document furnished pursuant hereto and thereto; and (v) shall incur no
liability under or in respect of this Agreement or any Related Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex), including, without limitation,
any thereof from time to time purporting to be from the Trustee, believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03. The Agent, the Issuing Bank and Affiliates.
The Agent and the Issuing Bank shall have the same rights and powers under
this Agreement as any other Participating Bank and may exercise (or omit from
exercising) the same as though they were not the Agent and the Issuing Bank,
respectively, and the term "Participating Bank" shall, unless otherwise
expressly indicated, include Barclays in its individual capacity. The Agent,
the Issuing Bank and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Account Party, any of its subsidiaries and any
Person who may do business with or own securities of the Account Party or any
such subsidiary, all as if Barclays was not the Agent or the Issuing Bank,
and without any duty to account therefor to the Participating Banks.
SECTION 9.04. Participating Bank Credit Decision. Each of
the Issuing Bank and each Participating Bank acknowledges that it has,
independently and without reliance upon the Arrangers, the Agent, the Issuing
Bank or any other Participating Bank and based on the financial information
referred to in Section 6.01(e) hereof and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Issuing Bank and each
Participating Bank also acknowledges that it will, independently and without
reliance upon the Arrangers, the Agent, the Issuing Bank or any other
Participating Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Participating Banks
agree to indemnify the Arrangers, the Agent and the Issuing Bank (to the
extent not reimbursed by the Account Party), ratably according to their
respective Participation Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Arrangers, the
Agent or the Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by the Arrangers, the Agent or the
Issuing Bank under or in connection with this Agreement, provided that no
Participating Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Arrangers', the Agent's or the
Issuing Bank's (as the case may be) gross negligence or willful misconduct.
Without limitation of the foregoing, each Participating Bank agrees to
reimburse the Arrangers, the Agent and the Issuing Bank promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Arrangers, the Agent and the Issuing Bank in connection with
the preparation, execution, delivery, administration, modification,
amendment, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement to the extent that the Arrangers, the
Agent and the Issuing Bank (as the case may be) are entitled to reimbursement
for such expenses pursuant to Section 10.04 hereof but are not reimbursed for
such expenses by the Account Party.
SECTION 9.06. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Issuing Bank, the
Participating Banks and the Account Party, with any such resignation to
become effective only upon the appointment of a successor Agent pursuant to
this Section 9.06. Upon any such resignation, the Issuing Bank shall have
the right to appoint a successor Agent, which shall be another commercial
bank or trust company reasonably acceptable to the Account Party, organized
or licensed under the laws of the United States, or of any State thereof.
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent and the execution and delivery by the Account Party and the successor
Agent of an agreement relating to the fees, if any, to be paid to the
successor Agent in connection with its acting as Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9.07. Issuing Bank. (a) All notices received by
the Issuing Bank pursuant to this Agreement or any Related Document (other
than the Letter of Credit) shall be promptly delivered to the Agent for
distribution to the Participating Banks.
(b) Except to the extent permitted by Section 2.06, the
Issuing Bank shall not amend or waive any provision or consent to the
amendment or waiver of any Related Document without the written consent of
the Majority Lenders. Notwithstanding the foregoing, each Participating
Bank, by its execution and delivery of this Agreement, authorizes and directs
the Issuing Bank to execute and deliver the Second Supplement, dated as of
May 1, 1995, to the Original Indenture.
(c) Upon receipt by the Issuing Bank from time to time of
any amount pursuant to the terms of any Related Document (other than pursuant
to the terms of this Agreement), the Issuing Bank shall promptly deliver to
the Agent such amount.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Pledge Agreement, nor consent to any
departure by the Account Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by the
Issuing Bank and all the Participating Banks, do any of the following:
(a) waive, modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitments of the Participating Banks that may be
maintained hereunder or subject the Participating Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Advances, any
amount reimbursable on demand pursuant to Section 3.01, or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances, such reimbursable amounts or any
fees or other amounts payable hereunder (other than fees payable to the
Issuing Bank or the Agent pursuant to Section 2.03(b) or (c) hereof),
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Participating Banks which
shall be required for the Participating Banks or any of them to take any
action hereunder, (f) amend this Agreement or the Pledge Agreement in a
manner intended to prefer one or more Participating Banks over any other
Participating Banks, (g) amend this Section 10.01, or (h) release any of the
Collateral otherwise than in accordance with any provisions for such release
contained in the Security Documents, or change any provision of any Security
Document providing for the release of all or substantially all of the
Collateral; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Bank or the Agent in
addition to the Participating Banks required above to take such action,
affect the rights or duties of the Issuing Bank or the Agent, as the case may
be, under this Agreement or the Pledge Agreement.
SECTION 10.02. Notices, Etc. All notices and other
communications provided for hereunder and under the other Loan Documents
shall be in writing (including telegraphic, telex, telecopy or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered:
(i) if to the Account Party, to it in care of NUSCO at
NUSCO's address at 107 Selden Street, Berlin, Connecticut
06037 (telecopy: (203) 665-5457), Attention: Manager,
Project and Short Term Finance;
(ii) if to the Issuing Bank or the Agent, to it at its
address at 222 Broadway, 12th Floor, New York, New York
10038, Attention: Customer Service Unit, (telephone: (212)
412-3363, telecopy: (212) 412-3080, Telex: 12-6946), with
a copy to: Utilities Finance Group, (telephone (212)
412-2551, telecopy: (212) 412-7575) and with a further copy
to Credit Enhancement Unit (telephone (212) 412-3578,
telecopy (212) 412-6969);
(iii) if to any Participating Bank, to it at its
address set forth on the signature pages hereof or in the
Participation Assignment pursuant to which it became a
Participating Bank; or
as to each party other than any Participating Bank, at such other address as
shall be designated by such party in a written notice to the other parties,
and, as to any Participating Bank, at such other address as shall be
designated by such Participating Bank in a written notice to the Account
Party and the Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled, be effective five days after when
deposited in the mails, or when delivered to the telegraph company, confirmed
by telex answerback, telecopied or delivered to the cable company,
respectively, except that notices and communications to the Agent or the
Issuing Bank pursuant to Article II, III or IV shall not be effective until
received by the Agent or the Issuing Bank, as the case may be.
SECTION 10.03. No Waiver of Remedies. No failure on the
part of any Participating Bank or the Issuing Bank to exercise, and no delay
in exercising, any right hereunder or under any Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Account Party agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses), of
(i) the Arrangers, the Agent and the Issuing Bank in connection with the
preparation, negotiation, execution and delivery of the Loan Documents and
the administration of the Loan Documents, the care and custody of any and all
collateral, and any proposed modification, amendment, or consent relating
thereto; and (ii) the Arrangers, the Agent, the Issuing Bank and each
Participating Bank in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement or any other
Loan Document.
(b) The Account Party hereby agrees to indemnify and hold
the Arrangers, the Agent, the Issuing Bank and each Participating Bank and
their respective officers, directors, employees, professional advisors and
affiliates (each, an "Indemnified Person") harmless from and against any and
all claims, damages, losses, liabilities, costs or expenses (including
reasonable attorney's fees and expenses, whether or not such Indemnified
Person is named as a party to any proceeding or investigation or is otherwise
subjected to judicial or legal process arising from any such proceeding or
investigation) which any of them may incur or which may be claimed against
any of them by any person or entity (except to the extent such claims,
damages, losses, liabilities, costs or expenses arise from the gross
negligence or willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or the
Related Documents or any transaction contemplated thereby,
or the use by the Account Party of the proceeds of any
Advance or the use by the Paying Agent or the Trustee of
the proceeds of any drawing under the Letter of Credit;
(ii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of the Account
Party or any of its Affiliates or (B) by or on behalf of
the Account Party or any of its Affiliates at any time and
in any place;
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority
by reason of the execution and delivery of any of the Loan
Documents;
(iv) by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to make
payment under, the Letter of Credit; provided, however,
that the Account Party shall not be required to indemnify
the Arrangers, the Agent, the Issuing Bank or any
Participating Bank pursuant to this Section for any claims,
damages, losses, liabilities, costs or expenses to the
extent caused by (A) the Issuing Bank's willful misconduct
or gross negligence, as determined by a court of competent
jurisdiction, in determining whether documents presented
under the Letter of Credit are genuine or comply with the
terms of the Letter of Credit or JO the Issuing Bank's
willful or grossly negligent failure, as determined by a
court of competent jurisdiction, to make lawful payment
under the Letter of Credit after the presentation to it by
the Paying Agent of a draft and certificate strictly
complying with the terms and conditions of the Letter of
Credit; or
(v) by reason of any inaccuracy or alleged inaccuracy
in any material respect, or any untrue statement or alleged
untrue statement of any material fact, contained in any
Official Statement, except to the extent contained in or
arising from information in such Official Statement
supplied in writing by and describing the Issuing Bank or
any previous issuer of a letter of credit relating to the
Bonds.
(c) Nothing contained in this Section 10.04 is intended to
limit the Account Party's obligations set forth in Articles II, III and IV.
The Account Party's obligations under this Section 10.04 shall survive the
creation and sale of any participation interest pursuant to Section 10.06
hereof and shall survive as well the repayment of all amounts owing to the
Agent, the Issuing Bank and the Participating Banks under the Loan Documents
and the termination of the Commitments. If and to the extent that the
obligations of the Account Party under this Section 10.04 are unenforceable
for any reason, the Account Party agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible under applicable
law.
SECTION 10.05. Right of Set-off. (a) Upon (i) the
occurrence and during the continuance of any Event of Default and (ii) the
taking of any action or the giving of any instruction by the Agent as
specified by Section 8.02 hereof, the Issuing Bank and each Participating
Bank are hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Issuing Bank or such Participating Bank
to or for the credit or the account of the Account Party against any and all
of the obligations of the Account Party now or hereafter existing under this
Agreement in favor of the Issuing Bank or such Participating Bank,
irrespective of whether or not the Issuing Bank or such Participating Bank
shall have made any demand under this Agreement and although such obligations
may be unmatured. The Issuing Bank and each Participating Bank agrees
promptly to notify the Account Party after any such set-off and application
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Issuing Bank and each
Participating Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Issuing Bank and/or such Participating Bank may have.
(b) The Account Party agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations hereunder,
and that the obligations of the Issuing Bank and of the several Participating
Banks hereunder are several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of the Account Party's rights to any
independent claim that the Account Party may have against the Issuing Bank or
any Participating Bank, but no Participating Bank shall be liable for the
conduct of the Issuing Bank or any other Participating Bank, and the Issuing
Bank shall not be liable for the conduct of any Participating Bank.
SECTION 10.06. Binding Effect; Assignments and
Participants. (a) This Agreement shall become effective when it shall have
been executed and delivered by the Account Party, the Agent, the Issuing Bank
and each Participating Bank named on the signature pages hereto and
thereafter shall be binding upon and inure to the benefit of the Account
Party, the Agent, the Issuing Bank and each Participating Bank and their
respective successors and assigns, except that the Account Party shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Issuing Bank and each Participating Bank,
and the Issuing Bank may not assign its commitment to issue the Letter of
Credit or its obligations under or in respect of the Letter of Credit.
(b) Each Participating Bank may assign all or any portion
of its rights under this Agreement, under the Letter of Credit or in any
security hereunder, including, without limitation, any instruments securing
the Account Party's obligations hereunder; provided that (i) no assignment by
any Participating Bank may be made to any Person, other than to another
Participating Bank, except with the prior written consent of the Issuing Bank
and the Account Party (which consent, in the case of the Account Party, shall
not be unreasonably withheld), (ii) any assignment shall be of a constant and
not a varying percentage of all of the assignor's rights and obligations
hereunder and (iii) the parties to each such assignment shall execute and
deliver to the Agent a Participation Assignment, together with a processing
fee of $2,500. Upon receipt of a completed Participation Assignment and the
processing fee, the Agent will record in a register maintained for such
purpose the name of the assignee and the percentage participation interest
assigned by the assignor and assumed by the assignee for purposes of the
determination of such assignor's and assignee's respective Participation
Percentages. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Participation Assignment,
which effective date shall be at least five Business Days after the execution
thereof, the assignee shall, to the extent of such assignment, become a party
hereto and have all of the rights and obligations of a Participating Bank
hereunder and, to the extent of such assignment, such assigning Participating
Bank shall be released from its obligations hereunder (without relieving such
Participating Bank from any liability for damages, costs and expenses
suffered by the Issuing Bank or the Account Party as a result of the failure
by such Participating Bank to perform its obligations hereunder).
(c) Each Participating Bank may grant participations to one
or more Persons in all or any part of, or any interest (undivided or divided)
in, such Participating Bank's rights and obligations under this Agreement
(any such Person being referred to hereinafter as a "Participant" and such
interests are collectively, referred to hereinafter as the "Rights");
provided, however, that (i) such Participating Bank's obligations under this
Agreement shall remain unchanged; (ii) any such Participant shall be entitled
to the benefits and cost protections provided for in Section 4.03 hereof on
the same basis as if it were a Participating Bank hereunder; (iii) the
Account Party, the Agent and the Issuing Bank shall continue to deal solely
and directly with such Participating Bank in connection with such
Participating Bank's rights and obligations under this Agreement; and (iv) no
such Participant, other than an Affiliate of such Participating Bank, shall
be entitled to require such Participating Bank to take or omit to take any
action hereunder, unless such action or omission would have an effect of the
type described in subsections (c), (d) or (h) of Section 10.01 hereof.
(d) Notwithstanding anything contained in this
Section 10.06 to the contrary, the Issuing Bank and any Participating Bank
may assign and pledge all or any portion of the Advances (or participating
interests therein) owing to the Issuing Bank or such Participating Bank to
any Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the Issuing Bank or such Participating Bank
from its obligations hereunder.
SECTION 10.07. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or implied, of any Loan
Document, or actions taken or to be taken by any party thereunder, shall be
construed to create a partnership, association, or joint venture between such
parties or any of them. No term or provision of the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege to, any
Person other than the parties hereto.
SECTION 10.08. Issuing Bank Not Liable. As between the
Agent, the Issuing Bank and the Participating Banks on the one hand, and the
Account Party on the other, the Account Party assumes all risks of the acts
or omissions of the Paying Agent, the Trustee and any other beneficiary or
transferee of the Letter of Credit with respect to its use of the Letter of
Credit. Neither the Agent, the Issuing Bank, any Participating Bank, nor any
of their respective officers or directors shall be liable or responsible for:
(a) the use which may be made of the Letter of Credit or any acts or
omissions of the Paying Agent, the Trustee and any other beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents which do not comply with the terms of the Letter of Credit,
including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever
in making or failing to make payment under the Letter of Credit, except that
the Account Party shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Account Party, to the extent of any
direct, as opposed to consequential, damages suffered by the Account Party
which the Account Party proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence, as determined by a court of competent
jurisdiction, in determining whether documents presented under the Letter of
Credit are genuine or comply with the terms of the Letter of Credit or (ii)
the Issuing Bank's willful or grossly negligent failure, as determined by a
court of competent jurisdiction, to make lawful payment under the Letter of
Credit after the presentation to it by the Paying Agent of a draft and
certificate strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing
Bank may accept original or facsimile (including telecopy) sight drafts and
accompanying certificates presented under the Letter of Credit that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 10.09. Confidentiality. In connection with the
negotiation and administration of this Agreement and the other Loan
Documents, the Account Party has furnished and will from time to time furnish
to the Agent, the Issuing Bank and the Participating Banks (each, a
"Recipient") written information which is identified to the Recipient when
delivered as confidential (such information, other than any such information
which (i) was publicly available, or otherwise known to the Recipient, at the
time of disclosure, (ii) subsequently becomes publicly available other than
through any act or omission by the Recipient or (iii) otherwise subsequently
becomes known to the Recipient other than through a Person whom the Recipient
knows to be acting in violation of his or its obligations to the Account
Party, being hereinafter referred to as "Confidential Information"). The
Recipient will not knowingly disclose any such Confidential Information to
any third party (other than to those persons who have a confidential
relationship with the Recipient), and will take all reasonable steps to
restrict access to such information in a manner designed to maintain the
confidential nature of such information, in each case until such time as the
same ceases to be Confidential Information or as the Account Party may
otherwise instruct. It is understood, however, that the foregoing will not
restrict the Recipient's ability to freely exchange such Confidential
Information with prospective assignees of or participants in the Recipient's
position herein, but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such prospective assignee's or
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not
prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or (iii) otherwise, as required by law; in the event of any
required disclosure under clause (ii) or (iii), above, the Recipient agrees
to use reasonable efforts to inform the Account Party as promptly as
practicable.
SECTION 10.10 Waiver of Jury Trial. The Account Party,
the Arrangers, the Agent, the Issuing Bank, and the Participating Banks each
hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or
any other Loan Document, or any other instrument or document delivered
hereunder or thereunder.
SECTION 10.11. Governing Law. This Agreement and the
Pledge Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. The Account Party, the Arrangers, the Agent,
the Issuing Bank and each Participating Bank each (i) irrevocably submits to
the jurisdiction of any New York State Court or Federal court sitting in New
York City in any action arising out of any Loan Document, (ii) agrees that
all claims in such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
and (iv) consents to the service of process by mail. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions.
Nothing herein shall affect the right of any party to serve legal process in
any manner permitted by law or affect its right to bring any action in any
other court.
SECTION 10.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE ACCOUNT PARTY:
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By/s/John B. Keane
Title: Vice President and Treasurer
<PAGE>
THE AGENT AND ISSUING BANK:
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Agent and as Issuing Bank
By/s/Vijay Rajguru
Title: Vijay Rajguru
Associate Director
THE PARTICIPATING BANKS:
BARCLAYS BANK PLC,
NEW YORK BRANCH
By/s/Vijay Rajguru
Title: Vijay Rajguru
Associate Director
Participation Percentage: 13.4551748715%
Address for Notices
Barclays Bank PLC
222 Broadway
New York, New York 10038
Attention: Vijay Rajguru
Telephone: (212) 412-7509
Fax: (212) 412-7511
<PAGE>
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By/s/Felipe A. Gomez
Title: Vice President
Participation Percentage: 5.9393507441%
Address for Notices
Bank of America NT & SA
335 Madison Avenue - 5th Floor
New York, New York 10017
Attention: Felipe A. Gomez
Telephone: (212) 503-8355
Fax: (212) 503-7066
<PAGE>
LTCB TRUST COMPANY
By/s/Noboru Kubota
Title:Senior Vice President
Participation Percentage: 5.9393507441%
Address for Notices
LTCB Trust Company
165 Broadway, 49th Floor
New York, New York 10006
Attention: Gregory H. Hong
Telephone: (212) 335-4534
Fax: (212) 608-2371/2529
<PAGE>
TORONTO DOMINION
(NEW YORK), INC.
By/s/Linda A. Lavin
Title: Director
Participation Percentage: 5.9393507441%
Address for Notices
The Toronto-Dominion Bank
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attention: Neva Nesbitt
Telephone: (713) 653-8261
Fax: (713) 951-9921
<PAGE>
UNION BANK
By/s/John M. Edmonston
Title:V.P.
Participation Percentage: 5.9393507441%
Address for Notices
Union Bank
445 S. Figueroa Street, 15th Floor
Los Angeles, CA 90071
Attention: Jason P. Dinapoli
Telephone: (213) 236-5016
Fax: (213) 236-4096
<PAGE>
THE BANK OF NOVA SCOTIA
By/s/T.M. Pitcher
Title:Authorized Signatory
Participation Percentage: 5.0908720664%
Address for Notices
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
Attention: Stephen M. Johnson
Telephone: (617) 737-6319
Fax: (617) 951-2177
<PAGE>
CHEMICAL BANK
By/s/R. Potter
Title: Managing Director
Participation Percentage: 5.0908720664%
Address for Notices
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Paul V. Farrell
Telephone: (212) 270-7653
Fax: (212) 270-5007
<PAGE>
CITIBANK, N.A.
By/s/Paul T. Addison
Title: ATTORNEY IN FACT
Participation Percentage: 5.0908720664%
Address for Notices
Citibank, N.A.
399 Park Avenue, 4th Floor
New York, New York 10043
Attention: Scott De Ghetto
Telephone: (212) 559-1670
Fax: (212) 793-6130
<PAGE>
THE FIRST NATIONAL BANK
OF BOSTON
By/s/Frank T. Smith
Title: Director
Participation Percentage: 5.0908720664%
Address for Notices
The First National Bank of Boston
100 Federal Street, M/S 01-08-02
Boston, MA 02110
Attention: Michelle Appleby
Telephone: (617) 434-6477
Fax: (617) 434-3652
<PAGE>
THE FIRST NATIONAL BANK
OF CHICAGO
By/s/Tsang-Wah Thomas Cheng
Title: Vice President
Participation Percentage: 5.0908720664%
Address for Notices
The First National Bank of Chicago
One First National Plaza, Suite 0363
Chicago, Illinois 60670
Attention: T. Thomas Cheng
Telephone: (312) 732-7822
Fax: (312) 732-3055
<PAGE>
THE FUJI BANK, LIMITED
By/s/Gina M. Kearns
Title: Vice President & Manager
Participation Percentage: 5.0908720664%
Address for Notices
The Fuji Bank, Limited
Two World Trade Center
New York, New York 10048
Attention: Michael Gebauer
Telephone: (212) 898-2064
Fax: (212) 488-8216
<PAGE>
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By/s/R. W. Ramage, Jr.
Title:Senior Vice President
Participation Percentage: 5.0908720664%
Address for Notices
The Industrial Bank of Japan
Trust Company
245 Park Avenue
New York, New York 10167
Attention: Ira Gottlieb
Telephone: (212) 309-6656
Fax: (212) 856-9450
<PAGE>
THE NIPPON CREDIT BANK, LTD.
By/s/Evan Klein
Title: AVP
Participation Percentage: 5.0908720664%
Address for Notices
The Nippon Credit Bank, Ltd.
245 Park Avenue
New York, New York 10167
Attention: Peter Fiorillo
Telephone: (212) 984-1263
Fax: (212) 697-8034
<PAGE>
SHAWMUT BANK
By/s/Thomas L. Rose
Title: Vice President
Participation Percentage: 5.0908720664%
Address for Notices
Shawmut Bank
One Federal Street
Boston, MA 02211
Attention: Thomas L. Rose
Telephone: (617) 292-3030
Fax: (617) 292-2619
<PAGE>
SOCIETE GENERALE
By/s/Gordon Eadon
Title: Gordon Eadon
Vice President
By/s/Robert Peterson
Title: VP
Participation Percentage: 5.0908720664%
Address for Notices
Societe Generale
1221 Avenue of the Americas
New York, New York 10020
Attention: Gordon Eadon
Telephone: (212) 278-6880
Fax: (212) 278-7430
<PAGE>
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By/s/Suresh S. Tata
Title:Suresh S. Tata
Vice President
Participation Percentage: 5.0908720664%
Address for Notices
The Sumitomo Bank, Limited,
New York Branch
277 Park Avenue
New York, New York 10172
Attention: Renata Jacobson
Telephone: (212) 244-4135
Fax: (212) 224-4188
<PAGE>
MELLON BANK, N.A.
By/s/Mary Ellen Usher
Title: Vice President
Participation Percentage: 3.3939147109
Address for Notices
Mellon Bank, N.A.
One Mellon Bank Center, Room 4425
Pittsburgh, Pennsylvania 15258-0001
Attention: Mary Ellen Usher
Telephone: (412) 236-1203
Fax: (412) 234-8888
<PAGE>
THE YASUDA TRUST AND BANKING
CO., LTD., NEW YORK BRANCH
By/s/Michael G. Haggarty
Title: Vice President
Participation Percentage: 3.3939147109%
Address for Notices
The Yasuda Trust and Banking Co., Ltd.,
New York Branch
666 Fifth Avenue, Suite 801
New York, New York 10103
Attention: Michael G. Haggarty
Telephone: (212) 373-5722
Fax: (212) 373-5796
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
Bank of America 1850 Gateway Same
NT&SA Boulevard
Concord, CA 94520
Att: Lori Martin
Tel: (510) 675-7212
Fax: (510) 675-
7531/7532
The Bank of Nova 101 Federal Street Same
Scotia Boston, MA 02110
Att: Stephen M.
Johnson
Tel: (617) 737-6319
Fax: (617) 951-2177
Barclays Bank PLC 75 Wall Street Barclays Bank
New York Branch New York, NY 10265 PLC,
Att: Customer Nassau Branch
Service Unit c/o Barclays Bank
Tel: (212) 412-3363 PLC,
Fax: (212) 412-3080 New York Branch
75 Wall Street
New York, NY
10265
Chemical Bank 270 Park Avenue Same
New York, NY 10017
Att: Lynette Long
Tel: (212) 270-2274
Fax: (212) 270-4016
Citibank, N.A. 1 Court Square Same
7th Floor/Zone 1
Long Island City, NY
11120
Att: Ann Chiou
Tel: (718) 248-4562
Fax: (718) 248-4844
The First 100 Federal Street Same
National Bank of Boston, MA 02110
Boston Att: Michelle
Appleby
Tel: (617) 434-6477
Fax: (617) 434-3652
<PAGE>
2
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
The First 1 First National Same
National Bank of Plaza
Chicago Suite 0821/IND-9
Chicago, IL 60670
Att: Ann Fritz
Tel: (312) 732-5083
Fax: (312) 732-1065
The Fuji Bank, Two World Trade Same
Limited Center
New York, NY 10048
Att: Kathleen
Bursotti
Tel: (212) 898-2065
Fax: (212) 488-8216
The Industrial 245 Park Avenue Same
Bank of Japan New York, NY 10167
Trust Company Att:
Tel: (212) 309-6793
Fax: (212) 949-0134
LTCB Trust 165 Broadway, 48th Same
Company Floor
New York, NY 10006
Att: Winston Brown
Tel: (212) 335-4854
Fax: (212) 608-3081
Mellon Bank, N.A. Loan Administration Same
Three Mellon Bank
Center
Room 2305
Pittsburgh, PA
15259-0003
Att: Tracey Stevens
Tel: (412) 234-4749
Fax: (412) 234-5049
The Nippon Credit 245 Park Avenue Same
Bank, Ltd. New York, NY 10167
Att: Evan Klein
Tel: (212) 984-1228
Fax: (212) 490-3895
Shawmut Bank One Federal Street Same
Boston, MA 02211
Att: Thomas L. Rose
Tel: (617) 292-3030
Fax: (617) 292-2619
Societe Generale 1221 Avenue of the Same
Americas
<PAGE>
3
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
New York, NY 10020
Att: Maggie
O'Donnell
Tel: (212) 278-6853
Fax: (212) 278-7430
The Sumitomo 277 Park Avenue Same
Bank, Limited, New York, NY 10172
New York Branch Att: Christine
Bonifacio
Tel: (212) 224-4138
Fax: (212) 224-5188
Toronto Dominion 909 Fannin, Suite Same
(New York), Inc. 1700
Houston, TX 12345
Att: Neva Nesbitt
Tel: (713) 653-8261
Fax: (713) 951-9921
Union Bank 445 S. Figueroa Same
Street
15th Floor
Los Angeles, CA
90071
Att: Patricia Ayala
Tel: (213) 236-6199
Fax: (213) 236-4096
The Yasuda Trust 666 Fifth Avenue, Same
and Banking Co., Ste. 801
Ltd., New York New York, NY 10103
Branch Att: Richard Ortiz
Tel: (212) 373-
5755/56
Fax: (212) 373-5797
<PAGE>
SCHEDULE II
[Information with respect to unexpired appeal periods:]
The period for the submission of a motion for rehearing with respect
to the decision of the New Hampshire Public Utilities Commission (the
NHPUC ) approving the transactions contemplated hereby will not expire until
May 19, 1995. Under the terms of the NHPUC's decision, any interested person
could file written comments or request an opportunity to be heard in the
matter no later than April 12, 1995, and the decision would become effective
on April 19, 1995 unless the NHPUC otherwise provided in a supplemental order
issued prior to such effective date. No person filed written comments or
requested an opportunity to be heard on or prior to April 12, 1995 or
subsequently, the NHPUC did not supplement the decision prior to April 19,
1995 or subsequently and the decision became effective in accordance with its
terms on April 19, 1995. No person may appeal the decision of the NHPUC
without first filing a motion for rehearing on or before May 19, 1995. No
such motion has been filed. Counsel for the Account Party is of the opinion
that the transactions contemplated hereby may be validly consummated prior to
the expiration of such rehearing period.
<PAGE>
1
EXHIBIT 1.01A to
Reimbursement Agreement
[LETTERHEAD OF BARCLAYS BANK PLC]
IRREVOCABLE LETTER OF CREDIT
NO. 839136
May 2, 1995
BankAmerica National Trust Company
One World Trade Center, 18th Floor
New York, New York 10048
Attention: Corporate Trust Division
Dear Sir or Madam:
We hereby establish, at the request and for the account of Public Service
Company of New Hampshire (the "Account Party"), in your favor, as paying
agent (the "Paying Agent") under that certain Series D Loan and Trust
Agreement, dated as of May 1, 1991, as supplemented by a First Supplement
thereto dated as of December 1, 1992 and a Second Supplement thereto dated as
of May 1, 1995, (as so supplemented, the "Indenture"), by and among the
Business Finance Authority (formerly The Industrial Development Authority) of
the State of New Hampshire (the "Issuer"), the Account Party and State Street
Bank and Trust Company, as trustee (the "Trustee"), pursuant to which
$39,500,000 in outstanding aggregate principal amount of the Issuer's
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series D) and $75,000,000 in outstanding aggregate
principal amount of the Issuer's Pollution Control Refunding Revenue Bonds
(Public Service Company of New Hampshire Project - 1992 Tax-Exempt Series D)
(such 1991 Taxable Series D and 1992 Tax-Exempt Series D bonds being
hereinafter referred to, collectively, as the "Bonds"), have been issued, our
Irrevocable Letter of Credit No. 839136, in the amount of US$117,858,000 (ONE
HUNDRED SEVENTEEN MILLION EIGHT HUNDRED FIFTY-EIGHT THOUSAND AND NO ONE-
HUNDREDTHS UNITED STATES DOLLARS), subject to reduction and reinstatement as
provided below.
(1) Credit Termination Date. This Letter of Credit shall expire on the
earliest to occur of (i) May 1, 1998 (the "Stated Termination Date"), (ii)
the date upon which we honor a draft accompanying a written and completed
certificate signed by you in substantially the form of Exhibit 2 attached
hereto, and stating therein that such draft is the final draft to be drawn
under this Letter of Credit and that, upon the honoring of such draft, this
Letter of Credit will expire in accordance with its terms, (iii) the date
upon which we receive a written certificate signed by you and stating therein
that no Bonds entitled to the benefits of this Letter of Credit (as
determined in accordance with the Indenture) ("Eligible Bonds") are
"outstanding" under the Indenture, (iv) the fifth business day following
receipt by you and the Trustee of written notice from us that an Event of
<PAGE>
2
Default (as defined below) has occurred under the Reimbursement Agreement (as
defined below) and of our determination to terminate this Letter of Credit on
such fifth business day and (v) the date upon which we receive a written
certificate signed by you and stating therein that a substitute or
replacement Credit Facility (as defined in the Indenture) has been provided
pursuant to Section 317 of the Indenture (such earliest date being the
"Credit Termination Date").
As used herein, the term "business day" shall mean any day of the year (i)
that is not a Sunday or legal holiday or a day on which banking institutions
are authorized pursuant to law to close, (ii) that is not a day on which the
corporate trust office of the First Mortgage Bond Trustee (as defined in the
Indenture) is not open for business, (iii) that is a day on which banks are
not required or authorized to close in New York City and (iv) that is a day
on which banking institutions in all of the cities in which the principal
offices of the Trustee, the Paying Agent and the Remarketing Agent (as
defined in the Indenture) are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
As used herein "Reimbursement Agreement" shall mean the Second Series D
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
between the Account Party, us and certain Participating Banks referred to
therein, and the term "Event of Default" shall mean an "Event of Default" as
that term is defined in the Reimbursement Agreement.
(2) Principal, Interest and Premium Components. The aggregate amount
which may be drawn under this Letter of Credit, subject to reductions in
amount and reinstatement as provided below, is US$117,858,000.00 (ONE HUNDRED
SEVENTEEN MILLION EIGHT HUNDRED FIFTY-EIGHT THOUSAND AND NO ONE-HUNDREDTHS
UNITED STATES DOLLARS), of which the aggregate amounts set forth below may be
drawn as indicated.
(i) An aggregate amount not exceeding US$114,500,000.00 (ONE
HUNDRED FOURTEEN MILLION FIVE HUNDRED THOUSAND AND NO ONE-HUNDREDTHS UNITED
STATES DOLLARS), as such amount may be reduced and reinstated as provided
below, (the "Principal Component") may be drawn in respect of payment of
principal (whether upon scheduled or accelerated maturity, or upon
redemption) of Eligible Bonds or the portion of the purchase price of
Eligible Bonds corresponding to principal.
(ii) An aggregate amount not exceeding US$3,358,000.00 (THREE MILLION
THREE HUNDRED FIFTY-EIGHT THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES
DOLLARS), as such amount may be reduced and reinstated as provided below,
(the "Interest Component") may be drawn in respect of payment of:
(A) accrued and unpaid interest on Eligible Bonds not in the
Flexible Mode (as defined in the Indenture) or that portion of the
redemption price or purchase price of such Eligible Bonds
corresponding to accrued and unpaid interest, but not more than an
amount equal to accrued and unpaid interest on such Eligible Bonds for
up to a maximum of 1) 128 days immediately preceding the date of such
drawing (in the case of Eligible Bonds that are 1991 Taxable Series D
Bonds) and 2) 45 days immediately preceding the date of such drawing
(in the case of Eligible Bonds that are 1992 Tax-Exempt Series D
Bonds); and
<PAGE>
3
(B) unpaid interest (whether accrued or to accrue) on Eligible
Bonds in the Flexible Mode or that portion of the redemption price or
purchase price of such Eligible Bonds corresponding to such interest,
but not more than an amount equal to such interest on such Eligible
Bonds for up to a maximum of 1) 128 days immediately preceding the
next Purchase Date (as defined in the Indenture) for each such
Eligible Bond (in the case of Eligible Bonds that are 1991 Taxable
Series D Bonds) (or, if interest on any such Eligible Bond was not
paid on the most recent Purchase Date for such Bond, for up to a
maximum of 128 days immediately preceding the date of such drawing)
and 2) 45 days immediately preceding such Purchase Date (in the case
of Eligible Bonds that are 1992 Tax-Exempt Series D Bonds) (or, if
interest on any such Eligible Bond was not paid on the most recent
Purchase Date for such Bond, for up to a maximum of 45 days
immediately preceding the date of such drawing);
calculated, in each case referred to in the foregoing clause (A) or clause
(B) at a maximum rate of:
(X) sixteen percent (16%) per annum on the basis of a year of 360
days for the actual days elapsed, or such lesser rate of interest as
shall equal the Maximum Interest Rate (as defined in the Indenture) in
effect under the Indenture with respect to such Eligible Bonds that
are 1991 Taxable Series D Bonds (whether or not in the Flexible Mode);
and
(Y) twelve percent (12%) per annum on the basis of a year of 365
or 366 days (as applicable) for the actual days elapsed, or such
lesser rate of interest as shall equal the Maximum Interest Rate in
effect under the Indenture with respect to such Eligible Bonds that
are 1992 Tax-Exempt Series D Bonds (whether or not in the Flexible
Mode).
(iii) An aggregate amount not exceeding US$0.00 (ZERO UNITED
STATES DOLLARS) may be drawn in respect of premium on Eligible Bonds (the
"Premium Component"). If, subsequent to the date hereof, the Premium
Component shall be increased by us at the request of the Account Party, the
Premium Component shall be subject to reduction as provided below, and
amounts drawn in respect thereof shall not be subject to reinstatement.
(3) Drawings. Funds under this Letter of Credit are available to you
against (i) your draft, stating on its face: "Drawn under Irrevocable Letter
of Credit No. 839136, dated May 2, 1995", and (ii) the appropriate
certificate specified below, purportedly executed by you and appropriately
completed.
<PAGE>
4
Exhibit Setting Forth
Type of Drawing Form of Certificate Required
Tender Drawing Exhibit 1
(as hereinafter defined)
Redemption/Mandatory Exhibit 2
Purchase Drawing
(as hereinafter defined)
Interest Drawing Exhibit 3
(as hereinafter
defined)
Drafts and certificates hereunder shall be dated the date of presentation
and shall be presented at our office located at 222 Broadway, 12th Floor, New
York, New York 10038, Attention: Standby Letter of Credit Section (or at such
other office as we may designate by written notice to you). Presentation of
such drafts and certificates may be made (a) by physical presentation of such
drafts and certificates or (b) by facsimile transmission of such drafts and
certificates received by us at (212) 412-2546 (or at such other number as we
may designate by written notice to you) with prior telephone notice to us at
(212) 412-3314/6821, Attention: Cheryl Canale or Charles Mazza (or at such
other number as we may designate by written notice to you) that such
presentation is to be made by facsimile transmission and with the original
executed drafts and certificates to be received by us not later than our
close of business on the next business day, it being understood that payments
hereunder shall be made upon receipt by us of such facsimile transmission;
provided, however, that presentations of drafts and certificates relating to
Tender Drawings in respect of Eligible Bonds in the Flexible Mode shall in
all instances be made in accordance with the foregoing clause (b). Drafts
drawn under and in strict compliance with the terms of this Letter of Credit
will be duly honored by us upon presentation thereof in accordance with this
Paragraph 3 if presented on or prior to 4:00 P.M. (New York City time) on the
Credit Termination Date as follows:
(i) Tender Drawings; Flexible Mode: In the case of drafts and
certificates relating to Tender Drawings in respect of Eligible Bonds in
the Flexible Mode presented in accordance with the foregoing clause (b):
(A) if such drafts and certificates are presented as aforesaid at
or prior to 1:30 P.M. (New York City time) on a business day, and
provided that such drafts and certificates strictly conform to the
requirements of this Letter of Credit, we will initiate a wire
transfer of the amount so drawn to your account indicated below at or
prior to 3:30 P.M. (New York City time) on the same business day;
(B) if such drafts and certificates are presented as aforesaid
after 1:30 P.M. but at or prior to 4:00 P.M. (New York City time) on a
business day, and provided that such drafts and certificates strictly
conform to the requirements of this Letter of Credit, we will initiate
a wire transfer of the amount so drawn to your account indicated below
at or prior to 10:00 A.M. on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date); and
<PAGE>
5
(C) if such drafts and certificates are presented as aforesaid
after 4:00 P.M. (New York City time) on a business day, and provided
that such drafts and certificates strictly conform to the requirements
of this Letter of Credit, we will initiate a wire transfer of the
amount so drawn to your account indicated below at or prior to 1:00
P.M. (New York City time) on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date);
and
(ii) All Other Drawings: In the case of any other drafts and
certificates:
(A) if such drafts and certificates are presented as aforesaid at
or prior to 4:00 P.M. (New York City time) on a business day, and
provided that such drafts strictly conform to the requirements of this
Letter of Credit, we will initiate a wire transfer of the amount so
drawn to your account indicated below at or prior to 10:00 A.M. (New
York City time) on the business day next succeeding the business day
on which such drafts and certificates were presented (notwithstanding
that such day of presentation may have been the Credit Termination
Date); and
(B) if such drafts and certificates are presented as aforesaid
after 4:00 P.M. (New York City time) on a business day, and provided
that such drafts and certificates strictly conform to the requirements
of this Letter of Credit, we will initiate a wire transfer of the
amount so drawn to your account indicated below at or prior to 1:00
P.M. (New York City time) on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date).
Wire transfers of funds paid in respect of any drawing hereunder shall be
made to your Account No. 1000-551 at BK AMER (ABA #0260-05885), reference:
Corporate Trust Department, Attention: Stephen Bruce, or to such other
account as you may from time to time specify to us in writing. All payments
made by us under this Letter of Credit will be made with our own funds and
not with any funds of the Account Party or the Issuer.
(4) Reductions. The Interest Component shall be reduced immediately
following our honoring any draft drawn hereunder to pay unpaid interest on
Eligible Bonds or to pay that portion of the purchase price or redemption
price corresponding to unpaid interest on Eligible Bonds, in each case by an
amount equal to the amount of such draft (any such drawing being an "Interest
Drawing"). The Principal Component shall be reduced immediately following
our honoring any draft drawn hereunder: (i) pursuant to Section 308(c)(ii)
of the Indenture to pay that portion of purchase price corresponding to
principal of Eligible Bonds that are (A) subject to mandatory tender for
purchase pursuant to Section 301(d)(iii), 301(e)(iv)(B) or 301(f)(iii) of the
Indenture or (B) tendered for purchase by the holders thereof pursuant to
Section 301(e)(iii) of the Indenture (any such drawing in respect of the
circumstances referred to in this clause (i) being a "Tender Drawing"), (ii)
<PAGE>
6
pursuant to Section 308(c)(i) of the Indenture to pay the principal of
Eligible Bonds or that portion of the redemption price of Eligible Bonds
corresponding to principal, whether at stated maturity, upon acceleration or
upon redemption, or (iii) pursuant to Section 308(c)(ii) of the Indenture to
pay that portion of the purchase price corresponding to principal of Eligible
Bonds that are subject to mandatory tender for purchase pursuant to Section
301(e)(iv)(A) of the Indenture (any such drawing in respect of the
circumstances referred to in the foregoing clause (ii) or in this clause
(iii) being a "Redemption/Mandatory Purchase Drawing"), in each such case by
an amount equal to the amount of such draft. The Premium Component shall be
reduced immediately following our honoring any draft drawn hereunder to pay
premium on Eligible Bonds in connection with a Redemption/Mandatory Purchase
Drawing, by an amount equal to the amount of such draft.
Additionally, upon receipt of a Notice of Reduction in the form of
Exhibit 4 to this Letter of Credit purportedly executed by you, we will
reduce the Principal Component, Interest Component and Premium Component to
the amounts therein stated.
(5) Reinstatement. The Interest Component and the Principal Component
shall, from time to time, be reinstated by us in accordance with, and only to
the extent provided in, the following subparagraphs (i) and (ii). In no
event shall reductions in the Premium Component be reinstated.
(i) Interest Component. Reductions in the Interest Component
resulting from Interest Drawings shall be reinstated as follows:
(A) Immediately following each drawing hereunder to pay unpaid
interest on Eligible Bonds in the Flexible Mode or to pay that portion
of purchase price, but not redemption price, corresponding to unpaid
interest on Eligible Bonds in the Flexible Mode, the amount so drawn
shall be automatically reinstated to the Interest Component unless,
not later than the business day preceding such drawing you shall have
received written notice from us that we will not reinstate the
Interest Component in the amount of such drawing. On the fifth day
following each drawing hereunder to pay accrued and unpaid interest on
Eligible Bonds that are not in the Flexible Mode, or to pay that
portion of purchase price, but not redemption price, corresponding to
accrued and unpaid interest on Eligible Bonds that are not in the
Flexible Mode, the amount so drawn shall be automatically reinstated
to the Interest Component, unless you shall have theretofore received
written notice from us that we will not reinstate the Interest
Component in the amount of such drawing. Any notice of non-
reinstatement delivered pursuant to this subparagraph (i)(A) shall be
in writing and shall be delivered to you by hand delivery or facsimile
transmission.
(B) If, subsequent to any such delivery of a notice of non-
reinstatement as aforesaid, we shall deliver to you, by hand delivery
or facsimile transmission, a Notice of Reinstatement in the form of
Exhibit 5 hereto, then, upon such delivery to you, the Interest
Component shall be immediately reinstated to the extent specified in
such Notice of Reinstatement.
(C) In no event shall the Interest Component be reinstated to an
amount in excess of the sum of: 1) 128 days' interest on all Eligible
<PAGE>
7
Bonds that are 1991 Taxable Series D Bonds, computed at the rate of
16% per annum on the basis of a year of 360 days for the actual days
elapsed, or such lesser rate of interest as shall equal the Maximum
Interest Rate (as defined in the Indenture) in effect under the
Indenture with respect to such Eligible Bonds and 2) 45 days' interest
on all Eligible Bonds that are 1992 Tax-Exempt Series D Bonds,
computed at the rate of 12% per annum on the basis of a year of 365 or
366 days (as applicable) for the actual days elapsed, or such lesser
rate of interest as shall equal the Maximum Interest Rate in effect
under the Indenture with respect to such Eligible Bonds.
(ii) Principal Component. Reductions in the Principal Component
resulting from Redemption/Mandatory Purchase Drawings shall in no event be
reinstated. Reductions in the Principal Component resulting from Tender
Drawings shall be reinstated as follows:
(A) Immediately upon receipt by us of proceeds from the
remarketing of Pledged Bonds (as defined in the Indenture), or of
written notice from you that you have received such proceeds (or a
window receipt guaranteeing same day payment in immediately available
funds of such proceeds as contemplated by Section 312(a) of the
Indenture), the Principal Component shall be reinstated automatically
by the amount of such proceeds.
(B) Immediately upon your receipt from us, by hand delivery or
facsimile transmission, of a Notice of Reinstatement in the form of
Exhibit 5 hereto, the Principal Component shall be immediately
reinstated to the extent specified in such Notice of Reinstatement.
(C) In no event shall the Principal Component be reinstated to
an amount in excess of the aggregate principal amount of Eligible
Bonds then outstanding under the Indenture.
Any Notice of Reinstatement delivered to you in the form set forth in Exhibit
5 hereto, whether delivered pursuant to subparagraph (i) or subparagraph
(ii), above, may be combined, in a single such Notice, with any other Notice
of Reinstatement delivered pursuant to the other such subparagraph.
(6) Notices. Communications (other than drawings) with respect to this
Letter of Credit shall be in writing and shall be addressed to us at 222
Broadway, 12th Floor, New York, New York 10038, Attention: Utilities Group
(or at such other office as we may designate by written notice to you) or by
facsimile transmission received by us at: (212) 412-7511, with a copy to
Customer Sevice Unit, Attention: Tom Ascolesi (facsimile (212) 412-5002) (or
at such other telephone number as we may designate by written notice to you)
specifically referring to the number of this Letter of Credit.
(7) Transfer. This Letter of Credit is transferable in its entirety (but
not in part) to any transferee who has succeeded you as Paying Agent under
the Indenture and may be successively so transferred. Transfer of the
available balance under this Letter of Credit to such transferee shall be
effected by the presentation to us of this Letter of Credit accompanied by a
certificate substantially in form set forth in Exhibit 6.
(8) Governing Law, Etc. Except as otherwise provided herein, this Letter
of Credit shall be governed by and construed in accordance with the Uniform
<PAGE>
8
Customs and Practices for Documentary Credits (1993 Revision) Publication No.
500 of the International Chamber of Commerce ( UCP ) and, to the extent not
inconsistent with the UCP, the laws of the State of New York, including the
Uniform Commercial Code as in effect in the State of New York. This Letter
of Credit sets forth in full our undertaking, and, except as expressly set
forth herein, such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or agreement
referred to herein (including, without limitation, the Bonds, the Indenture
and the Reimbursement Agreement), except only the certificates and the drafts
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificates and such drafts. Whenever and wherever the terms of this Letter
of Credit shall refer to the purpose of a draft hereunder, or the provisions
of any agreement or document pursuant to which such draft may be presented
hereunder, such purpose or provisions shall be conclusively determined by
reference to the certificate accompanying such draft; in furtherance of this
sentence, whether any drawing is in respect of payment of regularly scheduled
interest on the Bonds or of principal of or interest on the Bonds upon
scheduled or accelerated maturity or is a Tender Drawing or a
Redemption/Mandatory Purchase Drawing shall be conclusively determined by
reference to the certificate accompanying such drawing.
Very truly yours,
BARCLAYS BANK PLC,
NEW YORK BRANCH
By
Title:
By
Title:
<PAGE>
9
EXHIBIT 1
TO THE LETTER OF CREDIT
CERTIFICATE FOR TENDER DRAWING
The undersigned, a duly authorized officer of ,
(the Paying Agent ), hereby certifies as follows to Barclays Bank PLC, New
York Branch (the Bank ), with reference to Irrevocable Letter of Credit No.
__________ (the Letter of Credit ) issued by the Bank in favor of the Paying
Agent. Terms defined in the Letter of Credit and used but not defined herein
shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Tender Drawing under the Letter of Credit
in the amount of $ pursuant to Section 308(c)(ii) of the Indenture
to pay that portion of the purchase price corresponding to principal of
Eligible Bonds that are
[subject to mandatory tender for purchase pursuant to Section
[301(d)(iii)] [301(e)(iv)(B)] [301(f)(iii)] of the Indenture.]
[tendered for purchase by the holders thereof pursuant to Section
301(e)(iii) of the Indenture.]
(3) The amount of purchase price corresponding to principal of Eligible
Bonds and with respect to the payment of which the Paying Agent, pursuant to
the foregoing Sections of the Indenture, is drawing under the Letter of
Credit, is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Principal: $
(4) The amount of the draft accompanying this Certificate being drawn in
respect of purchase price corresponding to principal of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. The amount of the draft accompanying this Certificate
in respect of purchase price corresponding to principal of such Bonds has
been computed in accordance with the terms and conditions of such Eligible
Bonds and the Indenture.
(5) No proceeds of this drawing will be applied to the payment of purchase
price of any Bonds that are not Eligible Bonds, including any Pledged Bonds
(as defined in the Indenture), any Company Bonds (as defined in the
Indenture) and any Bonds in the Fixed Rate Mode (as defined in the
Indenture).
[(6) The Eligible Bonds in respect of which this drawing is being made are
Eligible Bonds in the Flexible Mode, and payment of this drawing shall be
made in accordance with Paragraph 3(i) of the Letter of Credit.]
<PAGE>
10
[(6) The Eligible Bonds in respect of which this drawing is being made are
not Eligible Bonds in the Flexible Mode, and payment of this drawing shall be
made in accordance with Paragraph 3(ii) of the Letter of Credit].
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
11
EXHIBIT 2
TO THE LETTER OF CREDIT
CERTIFICATE FOR REDEMPTION/
MANDATORY PURCHASE DRAWING
The undersigned, a duly authorized officer of , (the
"Paying Agent"), hereby certifies as follows to Barclays Bank PLC, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
__________ (the "Letter of Credit") issued by the Bank in favor of the Paying
Agent. Terms defined in the Letter of Credit and used but not defined herein
shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Redemption/Mandatory Purchase Drawing
under the Letter of Credit in the amount of $______________
[pursuant to Section 308(c)(i) and Section 605 of the Indenture to pay
the principal of Eligible Bonds due pursuant to the Indenture upon
maturity or as a result of acceleration of such Eligible Bonds in
accordance with the Indenture and the terms of such Eligible Bonds.]
[pursuant to Section 308(c)(i) of the Indenture to pay that portion of
the redemption price corresponding to principal of [and premium on]
Eligible Bonds due pursuant to the Indenture upon redemption of such
Eligible Bonds in accordance with the Indenture and the terms of such
Eligible Bonds.]
[pursuant to Section 308(c)(ii) of the Indenture to pay that portion
of the purchase price of Eligible Bonds corresponding to principal
that are subject to mandatory tender for purchase pursuant to Section
301(e)(iv)(A) of the Indenture.]
(3) The amount of [principal of] [redemption price corresponding to
principal of] [and premium on] [purchase price corresponding to principal of]
Eligible Bonds which is due and payable and with respect to the payment of
which the Paying Agent, pursuant to the foregoing Section[s] of the
Indenture, is to draw under the Letter of Credit is as follows, and the
amount of the draft accompanying this Certificate does not exceed such
amount:
Principal: $
[Premium: $ ]
(4) The amount of the draft accompanying this Certificate being drawn in
respect of payment of [principal] [redemption price corresponding to
principal] [purchase price corresponding to principal] of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. [The amount of the draft accompanying this Certificate
being drawn in respect of that portion of the redemption price of Eligible
Bonds corresponding to premium, as indicated in paragraph (3), above, does
not exceed the Premium Component of the Letter of Credit.] The amount of the
<PAGE>
12
draft accompanying this Certificate in respect of payment of [principal]
[redemption price corresponding to principal] [and premium] [purchase price
corresponding to principal] of such Eligible Bonds has been computed in
accordance with the terms and conditions of such Eligible Bonds and the
Indenture.
(5) No proceeds of this drawing will be applied to the payment of
principal, redemption price (including premium, if any) or purchase price of
any Bonds that are not Eligible Bonds, including any Pledged Bonds (as
defined in the Indenture), any Company Bonds (as defined in the Indenture),
and any Bonds in the Fixed Rate Mode (as defined in the Indenture).
(6) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
[(7) The draft accompanying this Certificate is the final draft to be
drawn under the Letter of Credit, and, upon the honoring of such draft, the
Letter of Credit will expire in accordance with its terms.]
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT], as
Paying Agent
By
Title:
<PAGE>
13
EXHIBIT 3
TO THE LETTER OF CREDIT
CERTIFICATE FOR INTEREST DRAWING
The undersigned, a duly authorized officer of , (the "Paying
Agent"), hereby certifies as follows to Barclays Bank PLC, New York Branch
(the "Bank"), with reference to Irrevocable Letter of Credit No. __________
(the "Letter of Credit") issued by the Bank in favor of the Paying Agent.
Terms defined in the Letter of Credit and used but not defined herein shall
have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a drawing under the Letter of Credit in the
amount of $ with respect to [the payment of interest] [the payment
of the portion of redemption price corresponding to interest] [the payment of
the portion of purchase price corresponding to interest] on Eligible Bonds in
accordance with the Indenture.
(3) The amount of [interest] [redemption price corresponding to interest]
[purchase price corresponding to interest] on Eligible Bonds that is due and
owing is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Interest:
(4) The amount of the draft accompanying this Certificate being drawn in
respect of payment of [interest] [redemption price corresponding to interest]
[purchase price corresponding to interest] on Eligible Bonds, as indicated in
paragraph (3), above, does not exceed the Interest Component of the Letter of
Credit. The amount of the draft accompanying this Certificate in respect of
payment of [interest] [redemption price corresponding to interest] [purchase
price corresponding to interest] on Eligible Bonds has been computed in
accordance with the terms and conditions of such Eligible Bonds and the
Indenture.
(5) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
<PAGE>
14
Title:
<PAGE>
15
EXHIBIT 4
TO THE LETTER OF CREDIT
NOTICE OF REDUCTION
The undersigned, a duly authorized officer of _____________________, (the
"Paying Agent"), hereby certifies as follows to Barclays Bank PLC, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
__________ (the "Letter of Credit") issued by the Bank in favor of the Paying
Agent. Terms defined in the Letter of Credit and used but not defined herein
shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) As of the date hereof, the aggregate principal amount of Eligible
Bonds (including for this purpose all Pledged Bonds and all Company Bonds)
outstanding is
Principal: $
(3) You are hereby directed to reduce the [Principal] [Premium] [and]
[Interest] Components of the Letter of Credit as follows:
[The Principal Component of the Letter of Credit is reduced to $
.]
[The Premium Component of the Letter of Credit is reduced to $
.]
[The Interest Component of the Letter of Credit is reduced to $
.]
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
16
EXHIBIT 5
TO THE LETTER OF CREDIT
NOTICE OF REINSTATEMENT
The undersigned, a duly authorized officer of Barclays Bank PLC, New York
Branch (the "Bank"), hereby gives the following notice to _________________,
as paying agent (the "Paying Agent"), with reference to Irrevocable Letter of
Credit No. __________ (the "Letter of Credit") issued by the Bank in favor of
the Paying Agent. Terms defined in the Letter of Credit and used but not
defined herein have the meanings given them in the Letter of Credit.
The Bank hereby notifies you that:
[1.] [Pursuant to Paragraph 5(i)(B) of the Letter of Credit and Section
2.04(b)(ii) of the Reimbursement Agreement, the Interest Component has
been reinstated by $________________.]
[2.] [Pursuant to Paragraph 5(ii)(B) of the Letter of Credit and Section
2.04(c) of the Reimbursement Agreement, the Principal Component has
been reinstated by $_________________.]
IN WITNESS WHEREOF, the Bank has executed and delivered this Notice of
Reinstatement as of the day of , 19
BARCLAYS BANK PLC,
NEW YORK BRANCH
By
Title:
<PAGE>
17
EXHIBIT 6
TO THE LETTER OF CREDIT
INSTRUCTIONS TO TRANSFER
, 19
Re: Irrevocable Letter of Credit
No. __________________
Gentlemen:
The undersigned, as Paying Agent under that certain Series D Loan and Trust
Agreement, dated as of May 1, 1991, as supplemented by a First Supplement
thereto dated as of December 1, 1992 and a Second Supplement thereto dated as
of May 1, 1995 (as so supplemented, the "Indenture"), by and among the
Business Finance Authority (formerly The Industrial Development Authority) of
the State of New Hampshire (the "Issuer"), Public Service Company of New
Hampshire and the State Street Bank and Trust Company, as Trustee, is named
as beneficiary in the Letter of Credit referred to above (the "Letter of
Credit"). The Transferee named below has succeeded the undersigned as Paying
Agent under such Indenture.
(Name of Transferee)
(Address)
Therefore, for value received, the undersigned hereby irrevocably instructs
you to transfer to such Transferee all rights of the undersigned to draw
under the Letter of Credit.
Such Transferee shall hereafter have the sole rights as beneficiary under
the Letter of Credit; provided, however, that no rights shall be deemed to
have been transferred to such Transferee until such transfer complies with
the requirements of the Letter of Credit pertaining to transfers.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF RETIRING PAYING AGENT],
as Paying Agent
<PAGE>
By
18
Title:
The undersigned, [Name of Transferee], hereby accepts the foregoing
transfer of rights under the Letter of Credit.
[Name of Transferee]
By
Title:
Address of Principal
Corporate Trust Office:
[insert address]
<PAGE>
1
EXHIBIT 1.01B to
Reimbursement Agreement
PARTICIPATION ASSIGNMENT
Dated _________________, 19__
Reference is made to the Second Series D Letter of Credit and Reimbursement
Agreement, dated as of May 1, 1995 (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being the "Agreement";
unless otherwise defined herein terms defined in the Agreement are used
herein with the same meaning), among Public Service Company of New Hampshire
(the "Account Party"), Barclays Bank PLC, New York Branch ("Barclays"), as
Issuing Bank, the Participating Banks named therein and from time to time
parties thereto, and Barclays, as Agent. Pursuant to the Agreement,
______________ (the "Assignor") has purchased a participation from the
Issuing Bank in and to the Letter of Credit and each payment thereunder and
demand loan made by the Issuing Bank and has committed to make Advances to
the Account Party.
The Assignor and ________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse to the Assignor that portion set forth in Section 1(c) of
Schedule 1 hereto (the "Assigned Interest") of the Assignor's rights and
obligations under the Agreement and the Pledge Agreement, including, without
limitation, the participation purchased by the Assignor pursuant to
Section 3.07 of the Agreement in respect of unreimbursed amounts and demand
loans owing from time to time to the Issuing Bank, the Commitment of the
Assignor to make Advances and the Advances outstanding on the Effective Date
(as hereinafter defined). Such Assigned Interest represents the percentage
interest specified in Section 2(b) of Schedule 1 of all outstanding rights
and obligations of the Participating Banks under the Agreement, and, after
giving effect to such sale and assignment, the Assignee's and Assignor's
Participation Percentages will be as set forth in Sections 2(b) and 2(c),
respectively, of Schedule 1. The effective date of this sale and assignment
shall be the date specified in Section 3 of Schedule 1 (the "Effective
Date").
2. On the Effective Date, the Assignee will pay to the Assignor, in same
day funds, at such address and account as the Assignor shall advise the
Assignee, an amount equal to (1) the aggregate amount of unreimbursed letter
of credit payments, demand loans and Advances outstanding (as set forth in
Section 1 of Schedule 1) times (2) the Assigned Interest. From and after the
Effective Date, the Assignor agrees that the Assignee shall be entitled to
all rights, powers and privileges of the Assignor under the Agreement and the
Pledge Agreement to the extent of the Assigned Interest, including without
limitation (i) the right to receive all payments in respect of the Assigned
Interest for the period from and after the Effective Date, whether on account
of reimbursements, principal, interest, fees, indemnities in respect of
claims arising after the Effective Date, increased costs, additional amounts
or otherwise; (ii) the right to vote and to instruct the Agent and the
<PAGE>
2
Issuing Bank under the Agreement based on the Assigned Interest; (iii) the
right to set-off and to appropriate and apply deposits of the Account Party
as set forth in the Agreement; and (iv) the right to receive notices,
requests, demands and other communications. The Assignor agrees that it will
promptly remit to the Assignee any amount received by it in respect of the
Assigned Interest (whether from the Account Party, the Agent or otherwise) in
the same funds in which such amount is received by the Assignor.
3. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or
the Related Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement, the Related Documents or
any other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of the Account Party or the performance or observance
by the Account Party of any of its obligations under the Agreement, the
Related Documents or any other instrument or document furnished pursuant
thereto.
4. The Assignee (i) confirms that it has received a copy of the
Agreement, together with copies of the financial statements referred to in
Section 6.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment; (ii) agrees that it will, independently and without reliance
upon the Agent, the Issuing Bank, the Assignor or any other Participating
Bank and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Agreement and the Related Documents; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Agreement and the Pledge Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with its terms all of the obligations which by the terms of the Agreement are
required to be performed by it as a Participating Bank and (v) confirms that
it has paid the processing fee referred to in subsection 10.06(b) of the
Agreement.
5. Following the execution of this Assignment, it will be delivered to
the Agent for acceptance and recording by the Agent. Upon such acceptance
and recording and receipt of the consent of the Issuing Bank required
pursuant to Section 10.06(b) of the Agreement (which shall be evidenced by
the Issuing Bank's execution of this Assignment on the appropriate space on
Schedule 1), as of the Effective Date, (i) the Assignee shall be a party to
the Agreement and, to the extent provided in this Assignment, have the rights
and obligations of a Participating Bank thereunder and under the Pledge
Agreement and (ii) the Assignor shall, to the extent provided in this
Assignment, relinquish its rights and be released from its obligations under
the Agreement and the Pledge Agreement.
6. Upon such acceptance, recording and consent, from and after the
Effective Date, the Agent shall make all payments under the Agreement in
<PAGE>
3
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the
Assignee at its address set forth on Schedule 1 hereto. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Agreement for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. This Assignment may be executed in counterparts by the parties hereto,
each of which counterpart when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written, such execution being made on Schedule 1 hereto.
<PAGE>
4
Schedule 1
to
Participation Assignment
Dated ____________, 19__
Section 1.
(a) Total Unreimbursed
Payments and demand loans $__________
(b) Total Advances: $__________
(c) Assigned Interest:1 __________%
Section 2.
(a) Assignor's Participation
Percentage (immediately
prior to the effectiveness
of this Assignment) ___________%
(b) Assignee's Participation
Percentage2 (upon the
effectiveness of this
Assignment) ___________%
(c) Assignor's Participation
Percentage2 (upon
the effectiveness of
this Assignment) ___________%
Section 3.
Effective Date:3__________, 19__
[NAME OF ASSIGNOR]
By______________________________
Title:
[NAME OF ASSIGNEE]
By______________________________
Title:
1
Specify percentage to no more than 8 decimal points.
2
The sum of the percentages set forth in Section 2(b) and (c) shall
equal the percentage set forth in Section 2(a).
3
Such date shall be at least 5 Business Days after the execution of
this Assignment.
<PAGE>
5
[Address]
Telecopier No._______________
Attention:___________________
Consented to and Accepted this __ day 4
of _____________, ___
BARCLAYS BANK, PLC,
NEW YORK BRANCH, as
Issuing Bank and as Agent
By__________________________
Title:
4
Not to be accepted without proof of Account Party's consent pursuant
to Section 10.06(b) of the Reimbursement Agreement.
<PAGE>
6
APPLICABLE LENDING OFFICES
The Assignee's Applicable Lending Offices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
<PAGE>
EXHIBIT 1.01C to
Reimbursement Agreement
SECOND AMENDMENT
TO
SERIES D PLEDGE AGREEMENT
This SECOND AMENDMENT, dated as of May 1, 1995 (this Amendment ), to the
SERIES D PLEDGE AGREEMENT, dated as of May 1, 1991, as amended by a First
Amendment thereto dated as of October 1, 1992 ( the Existing Agreement , and,
as amended by this Amendment, the Amended Agreement ) is made by and among:
(i) Public Service Company of New Hampshire, a corporation duly organized
and validly existing under the laws of the State of New Hampshire (the
"Account Party");
(ii) Barclays Bank PLC, New York Branch ( Barclays ), as the "Issuing Bank"
and "Agent" under the Existing Agreement (the Retiring Issuing
Bank ); and
(iii) Barclays, as the "Issuing Bank" under the Reimbursement Agreement
hereinafter referred to (the "Issuing Bank");
for the benefit of the Issuing Bank and
(iv) The Agent (as defined therein) and the Participating Banks (as defined
therein) from time to time party to such Reimbursement Agreement.
PRELIMINARY STATEMENT
The Business Finance Authority (formerly The Industrial Development
Authority) of the State of New Hampshire (the "Issuer") has issued, pursuant
to a Series D Loan and Trust Agreement, dated as of May 1, 1991 (as
supplemented by a First Supplement thereto dated as of December 1, 1992, a
Second Supplement thereto, dated as of May 1, 1995 and as further
<PAGE>
7
supplemented or amended from time to time with the written consent of the
Issuing Bank, the "Indenture"), by and among the Issuer, the Account Party
and State Street Bank and Trust Company, as trustee (such entity, or its
successor as trustee, being the "Trustee"), $39,500,000 aggregate principal
amount of The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series D) and $75,000,000 aggregate principal amount
of Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1992 Tax-Exempt Series D) (such Bonds, together with any further Tax-Exempt
Refunding Bonds (as defined in the Indenture) issued to refund such bonds as
provided in Article IV of the Indenture, being hereinafter referred to,
collectively, as the "Bonds").
Pursuant to the Indenture, the Account Party has previously caused the
Retiring Issuing Bank to issue the letter of credit referred to therein in
favor of the Paying Agent described therein. For the purposes stated in the
recitals to the Existing Agreement, the Account Party has previously entered
into the Existing Agreement and pledged the Pledged Collateral (as defined in
the Existing Agreement) to the Retiring Issuing Bank.
In accordance with the Indenture, the Account Party now wishes to replace
the letter of credit issued by the Issuing Bank for the letter of credit
previously issued by it, and in furtherance thereof, the Account Party has
requested the Issuing Bank to issue its irrevocable letter of credit in favor
of the Paying Agent. The Issuing Bank has agreed to issue such replacement
letter of credit subject to the terms and conditions set forth in that
certain Second Series D Letter of Credit and Reimbursement Agreement, of even
date herewith, among the Account Party, the Issuing Bank, the Agent and the
Participating Banks referred to therein and relating to the Bonds (said
Second Series D Letter of Credit and Reimbursement Agreement, as it may be
hereafter be amended, modified or supplemented from time to time, being
hereinafter referred to as the "Reimbursement Agreement").
It is a condition precedent to the obligation of the Issuing Bank to issue
such letter of credit and of the Participating Banks to make the Advances
described in the Reimbursement Agreement that the parties execute and deliver
this Amendment;
NOW THEREFORE, the Account Party, the Retiring Issuing Bank and the Issuing
Bank hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Definitions. For the purposes of this Amendment and the
Amended Agreement, terms defined in the Reimbursement Agreement and used but
not otherwise defined in this Amendment have the meanings given them in the
Reimbursement Agreement.
ARTICLE II.
<PAGE>
8
ASSIGNMENT
In consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Retiring Issuing
Bank hereby assigns, transfers, sets over and conveys, to the Issuing Bank
for the benefit of the Agent and the Participating Banks, without recourse of
any kind, all of the Retiring Issuing Bank's right, title and interest in and
to the Existing Agreement, the security interests created thereby and the
Pledged Collateral described therein. The Retiring Issuing Bank further
agrees to execute and deliver all such other documents and to take all such
other actions, as in each case may be reasonably requested by the Issuing
Bank to further evidence or perfect the foregoing assignment; provided,
however, that the Retiring Issuing Bank shall not be required to incur any
liability or expend any funds in connection with the foregoing unless
indemnified to its reasonable satisfaction. By execution and delivery of
this Amendment, (i) the Issuing Bank hereby accepts such assignment, transfer
and conveyance and (ii) the Account Party consents thereto.
ARTICLE III.
AMENDMENTS TO EXISTING AGREEMENT
SECTION 3.01. Delivery of Pledged Collateral. Section 3 of the Existing
Agreement is hereby amended by adding at the end thereof a new subsection (c)
to read in its entirety as follows:
(c) Notwithstanding the foregoing subsection (a), if and for so long
as the Bonds are to be held in the Book-Entry Only System (as defined in
the Indenture), the Account Party's obligations under such subsection shall
be deemed satisfied if such Pledged Bonds are (i) registered in the name of
DTC in accordance with the Book-Entry Only System (as those terms are
defined in the Indenture), (ii) credited on the books of DTC to the account
of the Paying Agent (or its nominee) and (iii) further credited on the
books of the Paying Agent (or such nominee) to the account of the Issuing
Bank (or its nominee).
SECTION 3.02. Certain References Deemed Amended. Upon the effectiveness
of this Amendment, (x) each reference in the Existing Agreement to "the
Reimbursement Agreement", "the Series D Reimbursement Agreement",
"thereunder", "thereof" or words of like import referring to the Existing
Reimbursement Agreement, shall mean and be a reference to the Reimbursement
Agreement, (y) each reference in the Existing Agreement to "the Issuing
Bank", "the Agent", or "the Participating Banks", shall mean and be a
reference to the Issuing Bank, the Agent and the Participating Banks,
respectively, as defined in the Reimbursement Agreement and (z) each
reference in the Existing Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Existing Agreement, and
each reference in the Related Documents to "the Pledge Agreement", "the
Series D Pledge Agreement", "thereunder", "thereof" or words of like import
referring to the Existing Agreement, shall mean and be a reference to the
Amended Agreement.
<PAGE>
9
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. Effectiveness; Effect on Existing Agreement. This Amendment
shall become effective when, and only when, (a) the Agent shall have received
counterparts of this Amendment duly executed by all the parties hereto and
(b) the Letter of Credit shall have been issued pursuant to the Reimbursement
Agreement. Except as expressly amended hereby, all provisions of the
Existing Agreement shall remain in full force and effect and are hereby in
all respects ratified and confirmed.
SECTION 4.02. Counterparts. This Amendment may be executed in
counterparts, and such counterparts taken together shall be deemed to
constitute one and the same agreement.
<PAGE>
10
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the date first above written.
PUBLIC SERVICE COMPANY
OF NEW HAMPSHIRE
By
Title:
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Retiring Issuing Bank and Agent
By
Title:
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Issuing Bank and as Agent
By
Title:
SIGNATURE PAGE TO SERIES D PLEDGE AMENDMENT
<PAGE>
EXHIBIT 5.01A to
Reimbursement Agreement
May 2, 1995
Business Finance Authority
of the State of New Hampshire
4 Park Street
Concord, New Hampshire 03301
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Barclays Bank PLC, New York Branch,
as Issuing Bank and Agent under the Reimbursement
Agreement referred to below, and each
Participating Bank thereunder
c/o Barclays Bank PLC, New York Branch
222 Broadway
New York, New York 10038
Re: $39,500,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D)
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1992 Tax-Exempt Series D)
Ladies and Gentlemen:
We have acted as counsel to Public Service Company of New Hampshire (the
"Company") and we are rendering this opinion to you in connection with the
transactions contemplated by (i) the Second Series D Letter of Credit and
Reimbursement Agreement dated as of May 1, 1995 (the "Reimbursement
Agreement"), among the Company, Barclays Bank PLC, New York Branch, as the
Issuing Bank (the "Issuing Bank") and the Agent (the "Agent") thereunder, and
the Participating Banks referred to therein, pursuant to which the Issuing
Bank is issuing an Irrevocable Letter of Credit dated the date hereof (the
"Letter of Credit") in support of the $39,500,000 The Industrial Development
Authority of the State of New Hampshire Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project - 1991 Taxable Series D)
(the "Taxable Bonds") and the $75,000,000 Business Finance Authority of the
State of New Hampshire Pollution Control Refunding Revenue Bonds (Public
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 2
Service Company of New Hampshire Project - 1992 Tax-Exempt Series D) (the
"Tax-Exempt Bonds" and, collectively with the Taxable Bonds, the "Bonds"),
(ii) the Second Supplement dated as of May 1, 1995 (the "Second Supplement"),
to the Series D Loan and Trust Agreement dated as of May 1, 1991, as
previously supplemented by the First Supplement dated as of December 1, 1992
(the "First Supplement," such Series D Loan and Trust Agreement as so
supplemented by the First Supplement, the "Original Loan and Trust
Agreement," and such Series D Loan and Trust Agreement as so supplemented by
the First Supplement and the Second Supplement, the "Loan and Trust
Agreement"), among the Business Finance Authority of the State of New
Hampshire (formerly known as The Industrial Development Authority of the
State of New Hampshire), the Company, and State Street Bank and Trust
Company, as trustee, and (iii) the Second Amendment dated as of May 1, 1995
(the "Second Pledge Amendment"), among the Company, Barclays Bank PLC, New
York Branch, the Issuing Bank, and the Agent to the Series D Pledge Agreement
dated as of May 1, 1991, between the Company and Citibank, N.A., as
previously amended by the First Amendment thereto dated as of October 1,
1992, (the "First Pledge Amendment"), among the Company, Citibank, N.A., and
Barclays Bank PLC, New York Branch (such Series D Pledge Agreement as so
amended by the First Pledge Amendment and the Second Pledge Amendment, the
"Pledge Agreement"). Capitalized terms used herein and not otherwise defined
are used as defined in the Reimbursement Agreement.
In connection with this opinion, we have examined:
(1) The Reimbursement Agreement, the Second Supplement, and the
Pledge Agreement (the "Documents").
(2) The Letter of Credit.
(3) The Original Loan and Trust Agreement.
(4) The First Mortgage Indenture and the Series F First Mortgage
Bonds.
(5) The Official Statement dated May 15, 1991, with respect to the
Taxable Bonds and certain other bonds, including the Appendices thereto, as
supplemented by the Supplement thereto dated October 1, 1992 (the "Original
Taxable Official Statement"), and the Supplement dated May 2, 1995, to the
Original Taxable Official Statement, including the Appendices thereto (the
"Taxable Supplement" and the Original Taxable Official Statement as
supplemented by the Taxable Supplement, the "Taxable Official Statement").
(6) The Official Statement dated December 16, 1992, with respect to
the Tax-Exempt Bonds, including the Appendices thereto (the "Original Tax-
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 3
Exempt Official Statement"), and the Supplement dated May 2, 1995, to the
Original Tax-Exempt Official Statement, including the Appendices thereto
(the "Tax-Exempt Supplement" and the Original Tax-Exempt Official Statement
as supplemented by the Tax-Exempt Supplement, the "Tax-Exempt Official
Statement").
(7) The articles of incorporation of the Company and all amendments
thereto (the "Charter") and the by-laws of the Company and all amendments
thereto (the "By-laws"), in each case as in effect on the date hereof.
(8) The other documents furnished by the Company pursuant to
Section 5.01 of the Reimbursement Agreement.
(9) A certificate of the Secretary of the State of the State of
Connecticut dated ____________ __, 1995, attesting to the qualification as
a foreign corporation and good standing of the Company in the State of
Connecticut.
In addition, we have examined originals, or copies certified to our
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments,
and other documents, as we have deemed necessary as a basis for the opinions
expressed below. In our examination of such agreements, instruments, and
documents, we have assumed the genuineness of all signatures (other than
those of the Company), the authenticity of all agreements, instruments, and
documents submitted to us as originals, and the conformity to original
agreements, instruments, and documents of all agreements, instruments, and
documents submitted to us as certified, conformed, or photostatic copies and
the authenticity of the originals of such copies. As to questions of fact
material to such opinions, we have assumed without verification and relied
upon the accuracy of the representations as to factual matters set forth in
the Documents and in certificates of the Company or its officers or of public
officials. Nothing has come to our attention, however, calling into question
the accuracy of such representations.
The opinions set forth below are subject to the following qualifications:
(A) No opinion is expressed with respect to laws other than those
of (i) the United States of America, (ii) the State of New Hampshire, (iii)
the State of Connecticut, (iv) the State of Maine, (v) the State of
Vermont, and (vi) the State of New York.
(B) In rendering the opinions contained in Paragraphs 2(b)(iii), 6,
and 7 below, we have relied, with your consent, solely on the opinion of
Jeffrey C. Miller, Esq., Assistant General Counsel of Northeast Utilities
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 4
Service Company ("NUSCO"), a service company affiliate of the Company,
dated the date hereof, and such opinions in Paragraphs 2(b)(iii), 6, and 7
below are subject to the qualifications set forth in such opinion of Mr.
Miller. In rendering the opinions contained in Paragraphs 1, 2(a),
2(b)(ii), 3, 4, 5, and 8 below as to matters governed by the laws of the
State of New Hampshire, we have relied, with your consent, solely upon the
opinion of Rath, Young and Pignatelli, P.A. dated the date hereof, and such
opinions in Paragraphs 1, 2(a), 2(b)(ii), 3, 4, 5, and 8 below as to
matters governed by such laws are subject to the qualifications set forth
in such opinion of Rath, Young and Pignatelli, P.A. In rendering the
opinions contained in Paragraphs 1, 2(b)(ii), and 4 below as to matters
governed by the laws of the State of Maine, we have relied, with your
consent, solely upon the opinion of Drummond Woodsum & MacMahon dated the
date hereof, and such opinions in Paragraphs 1, 2(b)(ii), and 4 below as to
matters governed by such laws are subject to the qualifications set forth
in such opinion of Drummond Woodsum & MacMahon. In rendering the opinions
contained in Paragraphs 1, 2(b)(ii), and 4 below as to matters governed by
the laws of the State of Vermont, we have relied, with your consent, solely
upon the opinion of Zuccaro, Willis & Bent dated the date hereof, and such
opinions in Paragraphs 1, 2(b)(ii), and 4 below as to matters governed by
such laws are subject to the qualifications set forth in such opinion of
Zuccaro, Willis & Bent. We believe that we are justified in relying on
such opinions of Mr. Miller and such other firms.
(C) Our opinion in Paragraph 5 below (i) is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law), and to the effect
of certain laws and judicial decisions that may affect the enforceability
of certain rights and remedies provided in the documents referred to
therein, none of which laws and judicial decisions, however, will make the
rights and remedies provided in such documents inadequate for the practical
realization of the benefits provided therein and (ii) assumes the binding
effect of all documents referred to therein on all parties thereto other
than the Company.
(D) We note further that, in addition to the effect of general
principles of equity described in subparagraph (C) above, courts have
imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties
seeking to obtain indemnification against violations of securities laws or
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 5
under circumstances where the conduct of such parties in the circumstances
in question is determined to have constituted negligence.
(E) We express no opinion herein as to (i) Section 10.05 of the
Reimbursement Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, and (iv)
the enforceability of waivers by parties of their respective rights and
remedies under law.
(F) We express no opinion as to the validity, perfection, or
priority of any security interest or lien created or granted under any of
the Documents.
(G) With respect to our opinion in Paragraph 8 below, we have
assumed (or, in the case of clause (ii) below, have relied on the fact)
that (i) the Issuing Bank's, the Agent's, and each Participating Bank's
decision to enter into the transactions contemplated by the Reimbursement
Agreement was not made in the State of Connecticut, (ii) the execution and
delivery of the Letter of Credit and the Reimbursement Agreement by the
Issuing Bank, the Agent, and each Participating Bank did not take place in
the State of Connecticut, (iii) any funds disbursed by the Issuing Bank,
the Agent, or any Participating Bank pursuant to the Letter of Credit or
the Reimbursement Agreement will be disbursed from outside of the State of
Connecticut, (iv) all payments to the Issuing Bank, the Agent, or any
Participating Bank pursuant to the Reimbursement Agreement will be made to
a bank account or bank accounts established at a branch office or branch
offices located outside of the State of Connecticut, and (v) neither the
Issuing Bank, the Agent, nor any Participating Bank has an office in
Connecticut or has officers or agents in Connecticut for the solicitation
of business.
(H) With respect to our opinion in Paragraph 8 below, our opinion
is limited solely to the transactions contemplated by the Reimbursement
Agreement and we express no opinion as to any other business or
transactions in which the Issuing Bank, the Agent, or any Participating
Bank may engage in the State of Connecticut or the State of New Hampshire.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Hampshire and has
the requisite corporate power and authority to own its property and assets
and to carry on its business as now conducted in the State of New
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 6
Hampshire. The Company is duly qualified to do business in, and is in good
standing in, the State of Connecticut, the State of Maine, the State of
Vermont, and all other jurisdictions where the nature of its business or
the nature of property owned or used by it makes such qualification
necessary.
2. The execution, delivery, and performance by the Company of the
Documents (a) are within the Company's corporate powers and have been duly
authorized by all necessary corporate or other similar action and (b) do
not and will not contravene (i) the Company's Charter or By-laws, (ii) any
law, or (iii) to the best of our knowledge, any contractual restriction
contained in any material agreement binding on or affecting the Company.
3. The Documents have been duly executed and delivered by the
Company.
4. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body (other than in connection with
or in compliance with the provisions of the state securities or "Blue Sky"
laws of any jurisdiction, as to which we express no opinion) is required to
be obtained or made in connection with the execution, delivery, or
performance by the Company of the Documents or the grant and perfection of
any security interest contemplated by the Pledge Agreement, except for
those that have been obtained or made and are in full force and effect, and
any post-closing filings required thereby, and the transactions
contemplated by the Documents may be validly consummated prior to the
expiration of the rehearing period described in Schedule II of the
Reimbursement Agreement.
5. The Documents are the legal, valid, and binding obligations of
the Company enforceable against the Company in accordance with their
respective terms. Upon execution and delivery by the parties thereto, the
Reimbursement Agreement and the Letter of Credit will be, without further
act or deed on the part of any person, the "Series D PCRB Reimbursement
Agreement" and the "Series D PCRB Credit Facility," respectively, as those
terms are used in the Series F First Mortgage Bonds and will be secured by
and entitled to benefits of the Series F First Mortgage Bonds and the First
Mortgage Indenture.
6. There is no pending or, to the best of our knowledge,
threatened action or proceeding affecting the Company or its properties
before any court, governmental agency, or arbitrator (a) which affects or
purports to affect the legality, validity or enforceability of the
Documents or (b) as to which there is a reasonable possibility of an
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 7
adverse determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, or operations of the
Company, except, for purposes of this clause (b) only, such as is descri-
bed in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
7. All outstanding shares of capital stock having ordinary voting
power for the election of directors of the Company are owned of record and
beneficially by Northeast Utilities ("NU"), free and clear of any Lien. NU
is a "holding company" (as defined in the Public Utility Holding Company
Act of 1935, as amended).
8. Neither the Issuing Bank, the Agent, nor any Participating Bank
is required to qualify to do business in the State of Connecticut or the
State of New Hampshire, or to comply with the requirement of any foreign
lender statute in the State of Connecticut or the State of New Hampshire,
by virtue solely of the execution, delivery, performance, or enforcement of
the Letter of Credit or the Reimbursement Agreement or as a condition or
requirement to avail itself of the remedies provided by the Reimbursement
Agreement, the Pledge Agreement, or any of the other Loan Documents.
9. All conditions precedent to the execution and delivery of the
Second Supplement under the Original Loan and Trust Agreement, if any, have
been satisfied and such execution and delivery is permitted under the
Original Loan and Trust Agreement.
We have considered the matters included in the Taxable Official Statement
and the Tax-Exempt Official Statement and the information contained therein.
In our opinion, the statements in (i) the Taxable Official Statement under
the captions "The 1995 Letters of Credit," "The 1995 Reimbursement
Agreements," "The Bonds," "The Loan Agreements," and "The First Mortgage
Bonds" and (ii) the Tax-Exempt Official Statement under the captions "The
1995 Letter of Credit," "The 1995 Reimbursement Agreement," "The 1992 Bonds"
(other than under the subcaption "Book-Entry Only System," as to which we
express no opinion), "The Loan Agreement," and "The Series F First Mortgage
Bonds and the First Mortgage Indenture," insofar as such statements
constitute a summary of the legal matters, documents, or proceedings referred
to therein, fairly present the information shown with respect to such legal
matters, documents, or proceedings. The Loan and Trust Agreement, the Letter
of Credit, the Reimbursement Agreement, the Series F First Mortgage Bonds,
the First Mortgage Indenture, and the Bonds conform to the descriptions
thereof contained in the Taxable Official Statement and the Tax-Exempt
Official Statement.
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Goldman, Sachs Money Markets, L.P.
Goldman, Sachs & Co.
Barclays Bank PLC, New York Branch, et al.
May 2, 1995
Page 8
We have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the Taxable
Official Statement or the Tax-Exempt Official Statement, except as stated in
the preceding paragraph. We have generally reviewed and discussed with
certain officers and employees of, and counsel and independent public
accountants for, the Company and NUSCO the information furnished, whether or
not subject to our check and verification. On the basis of such
consideration, review, and discussion, but without independent check or
verification (except as stated in the preceding paragraph), we believe that
(except for (i) the financial statements and other financial or statistical
information contained in the Taxable Official Statement, in the Tax-Exempt
Official Statement, or in the documents incorporated by reference therein and
(ii) Appendix B, Appendix C, and Appendix D to the Original Taxable Official
Statement, Appendix B and Appendix C to the Original Tax-Exempt Official
Statement, Appendix B to the Taxable Supplement, and Appendix B to the Tax-
Exempt Supplement, as to which we express no belief), the Taxable Official
Statement and the Tax-Exempt Official Statement did not as of the dates
thereof, and the Taxable Official Statement and the Tax-Exempt Official
Statement do not as of the date hereof, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
All counsel rendering opinions in connection with the transactions
contemplated by the Documents may, in rendering such opinions, rely on this
opinion as if it were addressed specifically to them.
Very truly yours,
RJW:BMC
DBH809/usr2/id15/work/LC.SUBST/DBH.D.OP.2
<PAGE>
EXHIBIT 5.01B to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $39,500,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D)
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1992 Tax-Exempt Series D)
Ladies and Gentlemen:
We have acted as special New Hampshire counsel to Public Service Company of
New Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series D
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Barclays Bank PLC, New York
Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the "Agent")
thereunder, and the Participating Banks referred to therein, pursuant to
which the Issuing Bank is issuing an Irrevocable Letter of Credit dated the
date hereof (the "Letter of Credit") in support of the $39,500,000 The
Industrial Development Authority of the State of New Hampshire Pollution
Control Revenue Bonds (Public Service Company of New Hampshire Project - 1991
Taxable Series D) and the $75,000,000 Business Finance Authority of the State
of New Hampshire Pollution Control Refunding Revenue Bonds (Public Service
Company of New Hampshire Project - 1992 Tax-Exempt Series D), (ii) the Second
Supplement dated as of May 1, 1995 (the "Second Supplement"), to the Series D
Loan and Trust Agreement dated as of May 1, 1991, as previously supplemented
by the First Supplement dated as of December 1, 1992 (the "First Supplement"
and such Series D Loan and Trust Agreement as so supplemented by the First
Supplement, the "Original Loan and Trust Agreement,"), among the Business
Finance Authority of the State of New Hampshire (formerly known as The
Industrial Development Authority of the State of New Hampshire), the Company,
and State Street Bank and Trust Company, as trustee, and (iii) the Second
Amendment dated as of May 1, 1995 (the "Second Pledge Amendment"), among the
Company, Barclays Bank PLC, New York Branch, the Issuing Bank, and the Agent
to the Series D Pledge Agreement dated as of May 1, 1991, between the Company
and Citibank, N.A., as previously amended by the First Amendment thereto
dated as of October 1, 1992 (the "First Pledge Amendment"), among the
Company, Citibank, N.A., and Barclays Bank PLC, New York Branch (such Series
D Pledge Agreement as so amended by the First Pledge Amendment and the Second
Pledge Amendment, the "Pledge Agreement"). Capitalized terms used herein and
not otherwise defined are used as defined in the Reimbursement Agreement.
In connection with this opinion, we have examined:
DBH809/usr2/id15/work/LC.SUBST/RYP.D.OP.2
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
(1) The Reimbursement Agreement, the Second Supplement, and the
Pledge Agreement (the "Documents").
(2) The Letter of Credit.
(3) The Original Loan and Trust Agreement.
(4) The First Mortgage Indenture and the Series F First Mortgage
Bonds.
(5) The articles of incorporation of the Company and all amendments
thereto and the by-laws of the Company and all amendments thereto, in each
case as in effect on the date hereof.
(6) A certificate of the Secretary of State of the State of New
Hampshire dated ____________ __, 1995, attesting to the continued corporate
existence and good standing of the Company in the State of New Hampshire.
In addition, we have examined originals, or copies certified to our
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments,
and other documents, as we have deemed necessary as a basis for the opinions
expressed below. In our examination of such agreements, instruments, and
documents, we have assumed the genuineness of all signatures (other than
those of the Company), the authenticity of all agreements, instruments, and
documents submitted to us as originals, and the conformity to original
agreements, instruments, and documents of all agreements, instruments, and
documents submitted to us as certified, conformed, or photostatic copies and
the authenticity of the originals of such copies. As to questions of fact
material to such opinions, we have assumed without verification and relied
upon the accuracy of the representations as to factual matters set forth in
the Documents and in certificates of the Company or its officers or of public
officials. Nothing has come to our attention, however, calling into question
the accuracy of such representations.
The opinions set forth below are subject to the following qualifications:
(A) No opinion is expressed with respect to laws other than those
of the State of New Hampshire. In this regard with respect to our opinion
in Paragraph 5 below, we note that the Reimbursement Agreement and the
Pledge Agreement provide that they are governed by New York law, and we are
providing no opinion with respect to the law of the State of New York.
(B) In rendering the opinion contained in the second sentence of
Paragraph 5 below, we have relied with your consent upon your opinion dated
May 16, 1991 with respect to (i) the due issuance of the Series F First
Mortgage Bonds and (ii) the conclusion that the Series F First Mortgage
Bonds were valid and binding obligations of the Company entitled to the
benefits of the First Mortgage Indenture as of their execution and delivery
DBH809/usr2/id15/work/LC.SUBST/RYP.D.OP.2
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 3
by the Company on May 16, 1991, and our opinion in the second sentence of
Paragraph 5 below is subject to the qualifications set forth in your
opinion.
(C) Our opinion in Paragraph 5 below (i) is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law), and to the effect
of certain laws and judicial decisions that may affect the enforceability
of certain rights and remedies provided in the documents referred to
therein, none of which laws and judicial decisions, however, will make the
rights and remedies provided in such documents inadequate for the practical
realization of the benefits provided therein and (ii) assumes the binding
effect of all documents referred to therein on all parties thereto other
than the Company.
(D) We note further that, in addition to the effect of general
principles of equity described in subparagraph (C) above, courts have
imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties
seeking to obtain indemnification against violations of securities laws or
under circumstances where the conduct of such parties in the circumstances
in question is determined to have constituted negligence.
(E) We express no opinion herein as to (i) Section 10.05 of the
Reimbursement Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, and (iv)
the enforceability of waivers by parties of their respective rights and
remedies under law.
(F) We express no opinion as to the validity, perfection, or
priority of any security interest or lien created or granted under any of
the Documents.
(G) With respect to our opinion in Paragraph 6 below, our opinion
is limited solely to the transactions contemplated by the Reimbursement
Agreement, and we express no opinion as to any other business or
transactions in which the Issuing Bank, the Agent, or any Participating
Bank may engage in the State of New Hampshire.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Hampshire and has
the requisite corporate power and authority to own its property and assets
DBH809/usr2/id15/work/LC.SUBST/RYP.D.OP.2
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 4
and to carry on its business as now conducted in the State of New
Hampshire.
2. The execution, delivery, and performance by the Company of the
Documents are within the Company's corporate powers, have been duly
authorized by all necessary corporate or other similar action and do not
and will not contravene any law of the State of New Hampshire.
3. The Documents have been duly executed and delivered by the
Company.
4. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of New Hampshire
(other than in connection with or in compliance with the provisions of the
state securities or "Blue Sky" laws of any jurisdiction, as to which we
express no opinion) is required to be obtained or made in connection with
the execution, delivery, or performance by the Company of the Documents or
the grant and perfection of any security interest contemplated by the
Pledge Agreement, except for those that have been obtained or made and are
in full force and effect, and any post-closing filings required thereby,
and the transactions contemplated by the Documents may be validly
consummated prior to the expiration of the rehearing period described in
Schedule II of the Reimbursement Agreement.
5. The Documents are the legal, valid, and binding obligations of
the Company enforceable against the Company in accordance with their
respective terms. Upon execution and delivery by the parties thereto, the
Reimbursement Agreement and the Letter of Credit will be, without further
act or deed on the part of any person, the "Series D PCRB Reimbursement
Agreement" and the "Series D PCRB Credit Facility," respectively, as those
terms are used in the Series F First Mortgage Bonds and will be secured by
and entitled to benefits of the Series F First Mortgage Bonds and the First
Mortgage Indenture.
6. Neither the Issuing Bank, the Agent, nor any Participating Bank
is required to qualify to do business in the State of New Hampshire, or to
comply with the requirement of any foreign lender statute in the State of
New Hampshire, by virtue solely of the execution, delivery, performance, or
enforcement of the Letter of Credit or the Reimbursement Agreement or as a
condition or requirement to avail itself of the remedies provided by the
Reimbursement Agreement, the Pledge Agreement, or any of the other Loan
Documents.
DBH809/usr2/id15/work/LC.SUBST/RYP.D.OP.2
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 5
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
RATH, YOUNG AND PIGNATELLI, P.A.
By:_____________________________
William F. J. Ardinger
DBH809/usr2/id15/work/LC.SUBST/RYP.D.OP.2
<PAGE>
EXHIBIT 5.01C to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $39,500,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D)
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1992 Tax-Exempt Series D)
Ladies and Gentlemen:
I am Assistant General Counsel of Northeast Utilities Service Company, a
service company affiliate of Public Service Company of New Hampshire (the
"Company"). I am rendering this opinion to you in connection with the
transactions contemplated by (i) the Second Series D Letter of Credit and
Reimbursement Agreement dated as of May 1, 1995 (the "Reimbursement
Agreement"), among the Company, Barclays Bank PLC, New York Branch, as the
Issuing Bank (the "Issuing Bank") and the Agent (the "Agent") thereunder, and
the Participating Banks referred to therein, pursuant to which the Issuing
Bank is issuing an Irrevocable Letter of Credit dated the date hereof in
support of the $39,500,000 The Industrial Development Authority of the State
of New Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D) (the "Taxable Bonds") and the
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of New
Hampshire Project - 1992 Tax-Exempt Series D) (the "Tax-Exempt Bonds"), (ii)
the Second Supplement dated as of May 1, 1995 (the "Second Supplement"), to
the Series D Loan and Trust Agreement dated as of May 1, 1991, as previously
supplemented by the First Supplement dated as of December 1, 1992, among the
Business Finance Authority of the State of New Hampshire (formerly known as
The Industrial Development Authority of the State of New Hampshire), the
Company, and State Street Bank and Trust Company, as trustee, and (iii) the
Second Amendment dated as of May 1, 1995 (the "Second Pledge Amendment"),
among the Company, Barclays Bank PLC, New York Branch, the Issuing Bank, and
the Agent to the Series D Pledge Agreement dated as of May 1, 1991, between
the Company and Citibank, N.A., as previously amended by the First Amendment
thereto dated as of October 1, 1992, (the "First Pledge Amendment"), among
the Company, Citibank, N.A., and Barclays Bank PLC, New York Branch (such
Series D Pledge Agreement as so amended by the First Pledge Amendment and the
Second Pledge Amendment, the "Pledge Agreement" and the Reimbursement
Agreement, the Second Supplement, and the Pledge Agreement, collectively, the
DBH809/usr2/id15/work/LC.SUBST/JCM.D.OP.1
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
"Documents"). Capitalized terms used herein and not otherwise defined are
used as defined in the Reimbursement Agreement.
In connection with this opinion, I have examined or caused to be examined
by counsel associated with or engaged by me, including counsel who are
employed by the Company, originals, or copies certified to my satisfaction,
of such corporate records of the Company, certificates of public officials
and of officers of the Company, and agreements, instruments, and other
documents, as I have deemed necessary as a basis for the opinions expressed
below. In my examination of such agreements, instruments, and documents, I
have assumed the genuineness of all signatures, the authenticity of all
agreements, instruments, and documents submitted to me as originals, and the
conformity to original agreements, instruments, and documents of all
agreements, instruments, and documents submitted to me as certified,
conformed, or photostatic copies and the authenticity of the originals of
such copies.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of (i) the United
States of America and (ii) the State of New Hampshire. I am a member of the
bar of the State of New York. I am not a member of the bar of the State of
New Hampshire, and do not hold myself out as an expert in the laws of such
State, although I have made a study of relevant laws of such State. In
expressing opinions about matters governed by the laws of the State of New
Hampshire, I have consulted with counsel who are employed by the Company and
are members of the bar of such State.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. To the best of my knowledge, the execution, delivery, and
performance by the Company of the Documents do not and will not contravene
any contractual restriction contained in any material agreement binding on
or affecting the Company.
2. There is no pending or, to the best of my knowledge, threatened
action or proceeding affecting the Company or its properties before any
court, governmental agency, or arbitrator (a) which affects or purports to
affect the legality, validity or enforceability of the Documents or (b) as
to which there is a reasonable possibility of an adverse determination and
which, if adversely determined, would materially adversely affect the
financial condition, properties, or operations of the Company, except, for
purposes of this clause (b) only, such as is described in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994.
3. All outstanding shares of capital stock having ordinary voting
power for the election of directors of the Company are owned of record and
beneficially by Northeast Utilities ("NU"), free and clear of any Lien. NU
is a "holding company" (as defined in the Public Utility Holding Company
Act of 1935, as amended).
DBH809/usr2/id15/work/LC.SUBST/JCM.D.OP.1
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 3
I have not myself checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in Appendix A to
the Supplement dated May 2, 1995, including the documents incorporated by
reference therein (the "Taxable Supplement"), to the Official Statement dated
May 15, 1991, with respect to the Taxable Bonds and certain other bonds or in
Appendix A to the Supplement dated May 2, 1995, including the documents
incorporated by reference therein (the "Tax-Exempt Supplement"), to the
Official Statement dated December 16, 1992, with respect to the Tax-Exempt
Bonds. I have generally reviewed and discussed with certain officers and
employees of, and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to my check and
verification. On the basis of such review and discussion, but without
independent check or verification, I believe that (except for the financial
statements and other financial or statistical information contained in
Appendix A to the Taxable Supplement, in Appendix A to the Tax-Exempt
Supplement, or in the documents incorporated by reference therein, as to
which I express no belief), Appendix A to the Taxable Supplement and Appendix
A to the Tax-Exempt Supplement, including the documents incorporated by
reference therein, did not as of the dates thereof, and Appendix A to the
Taxable Supplement and Appendix A to the Tax-Exempt Supplement, including the
documents incorporated by reference therein, do not as of the date hereof,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
Jeffrey C. Miller
Assistant General Counsel
DBH809/usr2/id15/work/LC.SUBST/JCM.D.OP.1
<PAGE>
EXHIBIT 5.01D to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $39,500,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D)
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1992 Tax-Exempt Series D)
Ladies and Gentlemen:
We have acted as special Maine counsel to Public Service Company of New
Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series D
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Barclays Bank PLC, New York
Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the "Agent")
thereunder, and the Participating Banks referred to therein, pursuant to
which the Issuing Bank is issuing an Irrevocable Letter of Credit dated the
date hereof in support of the $39,500,000 The Industrial Development
Authority of the State of New Hampshire Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project - 1991 Taxable Series D) and
the $75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of New
Hampshire Project - 1992 Tax-Exempt Series D), (ii) the Second Supplement
dated as of May 1, 1995 (the "Second Supplement"), to the Series D Loan and
Trust Agreement dated as of May 1, 1991, as previously supplemented by the
First Supplement dated as of December 1, 1992, among the Business Finance
Authority of the State of New Hampshire (formerly known as The Industrial
Development Authority of the State of New Hampshire), the Company, and State
Street Bank and Trust Company, as trustee, and (iii) the Second Amendment
dated as of May 1, 1995 (the "Second Pledge Amendment"), among the Company,
Barclays Bank PLC, New York Branch, the Issuing Bank, and the Agent to the
Series D Pledge Agreement dated as of May 1, 1991, between the Company and
Citibank, N.A., as previously amended by the First Amendment thereto dated as
of October 1, 1992, (the "First Pledge Amendment"), among the Company,
Citibank, N.A., and Barclays Bank PLC, New York Branch (such Series D Pledge
Agreement as so amended by the First Pledge Amendment and the Second Pledge
Amendment, the "Pledge Agreement" and the Reimbursement Agreement, the Second
Supplement, and the Pledge Agreement, collectively, the "Documents").
In connection with this opinion, we have examined a certificate of the
Secretary of State of the State of Maine dated ____________ __, 1995,
DBH809/usr2/id15/work/LC.SUBST/DWM.D.OP.1
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
attesting to the qualification as a foreign corporation and good standing of
the Company in the State of Maine. In addition, we have examined originals,
or copies certified to our satisfaction, of such other corporate records of
the Company, certificates of public officials and of officers of the Company,
and agreements, instruments, and other documents, as we have deemed necessary
as a basis for the opinions expressed below. In our examination of such
agreements, instruments, and documents, we have assumed the genuineness of
all signatures (other than those of the Company), the authenticity of all
agreements, instruments, and documents submitted to us as originals, and the
conformity to original agreements, instruments, and documents of all
agreements, instruments, and documents submitted to us as certified,
conformed, or photostatic copies and the authenticity of the originals of
such copies. As to questions of fact material to such opinions, we have
assumed without verification and relied upon the accuracy of the
representations as to factual matters set forth in the Documents and in
certificates of the Company or its officers or of public officials. Nothing
has come to our attention, however, calling into question the accuracy of
such representations.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of the State of
Maine.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly qualified to do business in,
and is in good standing in, the State of Maine.
2. The execution, delivery, and performance by the Company of the
Documents do not and will not contravene any law of the State of Maine.
3. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of Maine (other
than in connection with or in compliance with the provisions of the state
securities or "Blue Sky" laws of any jurisdiction, as to which we express
no opinion) is required to be obtained or made in connection with the
execution, delivery, or performance by the Company of the Documents or the
grant and perfection of any security interest contemplated by the Pledge
Agreement, except for those that have been obtained or made and are in full
force and effect, and any post-closing filings required thereby.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
DBH809/usr2/id15/work/LC.SUBST/DWM.D.OP.1
<PAGE>
EXHIBIT 5.01E to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $39,500,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series D)
$75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1992 Tax-Exempt Series D)
Ladies and Gentlemen:
We have acted as special Vermont counsel to Public Service Company of New
Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series D
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Barclays Bank PLC, New York
Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the "Agent")
thereunder, and the Participating Banks referred to therein, pursuant to
which the Issuing Bank is issuing an Irrevocable Letter of Credit dated the
date hereof in support of the $39,500,000 The Industrial Development
Authority of the State of New Hampshire Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project - 1991 Taxable Series D) and
the $75,000,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of New
Hampshire Project - 1992 Tax-Exempt Series D), (ii) the Second Supplement
dated as of May 1, 1995 (the "Second Supplement"), to the Series D Loan and
Trust Agreement dated as of May 1, 1991, as previously supplemented by the
First Supplement dated as of December 1, 1992, among the Business Finance
Authority of the State of New Hampshire (formerly known as The Industrial
Development Authority of the State of New Hampshire), the Company, and State
Street Bank and Trust Company, as trustee, and (iii) the Second Amendment
dated as of May 1, 1995 (the "Second Pledge Amendment"), among the Company,
Barclays Bank PLC, New York Branch, the Issuing Bank, and the Agent to the
Series D Pledge Agreement dated as of May 1, 1991, between the Company and
Citibank, N.A., as previously amended by the First Amendment thereto dated as
of October 1, 1992, (the "First Pledge Amendment"), among the Company,
Citibank, N.A., and Barclays Bank PLC, New York Branch (such Series D Pledge
Agreement as so amended by the First Pledge Amendment and the Second Pledge
Amendment, the "Pledge Agreement" and the Reimbursement Agreement, the Second
Supplement, and the Pledge Agreement, collectively, the "Documents").
In connection with this opinion, we have examined a certificate of the
Secretary of State of the State of Vermont dated ____________ __, 1995,
DBH809/usr2/id15/work/LC.SUBST/ZWB.D.OP.1
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
attesting to the qualification as a foreign corporation and good standing of
the Company in the State of Vermont. In addition, we have examined
originals, or copies certified to our satisfaction, of such other corporate
records of the Company, certificates of public officials and of officers of
the Company, and agreements, instruments, and other documents, as we have
deemed necessary as a basis for the opinions expressed below. In our
examination of such agreements, instruments, and documents, we have assumed
the genuineness of all signatures (other than those of the Company), the
authenticity of all agreements, instruments, and documents submitted to us as
originals, and the conformity to original agreements, instruments, and
documents of all agreements, instruments, and documents submitted to us as
certified, conformed, or photostatic copies and the authenticity of the
originals of such copies. As to questions of fact material to such opinions,
we have assumed without verification and relied upon the accuracy of the
representations as to factual matters set forth in the Documents and in
certificates of the Company or its officers or of public officials. Nothing
has come to our attention, however, calling into question the accuracy of
such representations.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of the State of
Vermont.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly qualified to do business in,
and is in good standing in, the State of Vermont.
2. The execution, delivery, and performance by the Company of the
Documents do not and will not contravene any law of the State of Vermont.
3. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of Vermont (other
than in connection with or in compliance with the provisions of the state
securities or "Blue Sky" laws of any jurisdiction, as to which we express
no opinion) is required to be obtained or made in connection with the
execution, delivery, or performance by the Company of the Documents or the
grant and perfection of any security interest contemplated by the Pledge
Agreement, except for those that have been obtained or made and are in full
force and effect, and any post-closing filings required thereby.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
DBH809/usr2/id15/work/LC.SUBST/ZWB.D.OP.1
<PAGE>
EXHIBIT 5.01F to
Reimbursement Agreement
[Form of Opinion of King & Spalding]
May 2, 1995
To Barclays Bank PLC, New York Branch,
as Agent and as Issuing Bank under the
Reimbursement Agreement referred to below,
and to each Participating Bank thereunder
The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series D)
Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of New
Hampshire Project - 1992 Tax-Exempt Series D)
Letter of Credit Substitution
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(f)(vi) of the
Second Series D Letter of Credit and Reimbursement Agreement, dated as of May
2, 1995 (the Reimbursement Agreement ), among Public Service Company of New
Hampshire (the Company ), Barclays Bank PLC, New York Branch, as the Agent
(the Agent ) and Issuing Bank (the Issuing Bank ) thereunder, and the
Participating Banks referred to therein. Unless otherwise defined herein,
terms defined in the Reimbursement Agreement are used herein as therein
defined.
We have acted as special New York counsel to the Agent and the Issuing Bank
in connection with the preparation, execution and delivery of the
Reimbursement Agreement and the issuance by the Issuing Bank of the Letter of
Credit referred to therein.
In that connection, we have examined the following documents:
(a) The Reimbursement Agreement, executed by each of the parties
thereto; and
(b) The documents furnished to you today pursuant to Section 5.01
of the Reimbursement Agreement, including the opinions of counsel delivered
pursuant to Sections 5.01(f)(i) through (v) of the Reimbursement Agreement
(collectively, the Opinions ).
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
<PAGE>
-2-
submitted to us as copies or telecopies. We have also assumed that the
Agent, the Issuing Bank and each Participating Bank have duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the Reimbursement Agreement and that all requisite consents of Participating
Banks have been obtained under Sections 5.01 of the Reimbursement Agreement.
To the extent that our opinions expressed below involve conclusions as to
matters governed by laws other than the laws of the State of New York, we
have relied upon the Opinions and have assumed without independent
investigation the correctness of the matters set forth therein, our opinions
expressed below being subject to the assumptions, qualifications and
limitations set forth in the Opinions. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
1. The Reimbursement Agreement is in substantially acceptable
legal form.
2. The Opinions and the other documents referred to in paragraph
(b), above, are substantially responsive to the requirements of the
sections of the Reimbursement Agreement pursuant to which the same have
been delivered.
Very truly yours,
PKS:GDP:jvn
<PAGE>
File No. 70-8036
Exhibit B.5(1995)
[EXECUTION COPY]
SECOND SERIES E LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated as of May 1, 1995
Among
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
as Account Party
SWISS BANK CORPORATION, NEW YORK BRANCH
as Issuing Bank and as Agent
and
THE PARTICIPATING BANKS
REFERRED TO HEREIN
Relating to
The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1993 Tax-Exempt Series E)
<PAGE>
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms . . . . . . . . . . 3
1.02 Computation of Time Periods . . . . . . . 21
1.03 Accounting Terms . . . . . . . . . . . . . 21
1.04 Computations of Outstandings . . . . . . 21
ARTICLE II
THE LETTER OF CREDIT
2.01 The Letter of Credit . . . . . . . . . . 21
2.02 Termination of the Commitments . . . . . . 21
2.03 Commissions and Fees . . . . . . . . . . 22
2.04 Reinstatement of the Letter of Credit . . 22
2.05 Extension of the Stated Termination Date . 24
2.06 Modification of the Letter of Credit . . . 24
ARTICLE III
REIMBURSEMENT AND ADVANCES
3.01 Reimbursement on Demand . . . . . . . . . 25
3.02 Advances . . . . . . . . . . . . . . . . 26
3.03 Interest on Advances . . . . . . . . . . . 27
3.04 Conversion of Term Advances . . . . . . . 28
3.05 Other Terms Relating to the
Making and Conversion of Advances . . 29
3.06 Prepayment of Advances . . . . . . . . . . 30
3.07 Participation; Reimbursement of Issuing Bank 31
ARTICLE IV
PAYMENTS
4.01 Payments and Computations . . . . . . . . 33
4.02 Default Interest . . . . . . . . . . . . . 35
4.03 Yield Protection . . . . . . . . . . . . . 35
4.04 Sharing of Payments, Etc. . . . . . . . . 40
4.05 Taxes . . . . . . . . . . . . . . . . . . 41
4.06 Obligations Absolute . . . . . . . . . . . 43
4.07 Evidence of Indebtedness . . . . . . . . 44
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to the Issuance of
the Letter of Credit . . . . . . . . . . 45
5.02 Additional Conditions Precedent to the Issuance of
the Letter of Credit . . . . . . . . . . . 51
<PAGE>
5.03 Conditions Precedent to Initial Advances
and Conversions of Advances . . . . . . 52
5.04 Conditions Precedent to Term Advances . . 52
5.05 Reliance on Certificates . . . . . . . . . 53
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 Representations and Warranties of the Account
Party. . . . . . . . . . . . . . . . . . 53
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
7.01 Affirmative Covenants . . . . . . . . . . 58
7.02 Negative Covenants . . . . . . . . . . . . 60
7.03 Reporting Obligations . . . . . . . . . . 64
<PAGE>
ARTICLE VIII
DEFAULTS
8.01 Events of Default . . . . . . . . . . . . 69
8.02 Remedies Upon Events of Default . . . . . 72
8.03 Issuing Bank to Notify First Mortgage
Trustee, Others . . . . . . . . . . . . . 73
ARTICLE IX
THE AGENT, THE PARTICIPATING BANKS
AND THE ISSUING BANK
9.01 Authorization of Agent; Actions of Agent
and Issuing Bank . . . . . . . . . . . . 73
9.02 Reliance, Etc. . . . . . . . . . . . . . . 74
9.03 The Agent, the Issuing Bank and Affiliates 74
9.04 Participating Bank Credit Decision . . . . 75
9.05 Indemnification . . . . . . . . . . . . . 75
9.06 Successor Agent . . . . . . . . . . . . . 76
9.07 Issuing Bank . . . . . . . . . . . . . . . 76
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. . . . . . . . . . . . . . 77
10.02 Notices, Etc. . . . . . . . . . . . . . . 78
10.03 No Waiver of Remedies . . . . . . . . . . 78
10.04 Costs, Expenses and Indemnification . . . 79
10.05 Right of Set-Off . . . . . . . . . . . . . 81
10.06 Binding Effect; Assignments and Participants 81
10.07 Relation of the Parties; No Beneficiary . 83
10.08 Issuing Bank Not Liable . . . . . . . . . 83
10.09 Confidentiality . . . . . . . . . . . . . 84
10.10 Waiver of Jury Trial . . . . . . . . . . . 85
10.11 Governing Law . . . . . . . . . . . . . . 85
10.12 Execution in Counterparts . . . . . . . . 85
<PAGE>
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Rehearings
<PAGE>
EXHIBITS
Exhibit 1.01A - Form of Letter of Credit
Exhibit 1.01B - Form of Participation Assignment
Exhibit 1.01C - Form of Pledge Amendment
Exhibit 5.01A - Form of Opinion of Day, Berry & Howard, counsel to
the Account Party
Exhibit 5.01B - Form of Opinion of Rath, Young and Pignatelli, P.A.,
special New Hampshire counsel to the Account Party
Exhibit 5.01C - Form of Opinion of Assistant General Counsel of NUSCO
Exhibit 5.01D - Form of Opinion of Drummond Woodsum & MacMahon,
special Maine counsel to the Account Party
Exhibit 5.01E - Form of Opinion of Zuccaro Willis & Bent, special
Vermont counsel to the Account Party
Exhibit 5.01F - Form of Opinion of King & Spalding,
counsel to the Agent and the Issuing Bank
<PAGE>
SECOND SERIES E LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated as of May 1, 1995
THIS SECOND SERIES E LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made by and among:
(1) Public Service Company of New Hampshire, a corporation
duly organized and validly existing under the laws of
the State of New Hampshire (the "Account Party");
(2) Swiss Bank Corporation, New York Branch ("Swiss Bank"),
as issuer of the Letter of Credit (the "Issuing Bank");
(3) The Participating Banks (as hereinafter defined) from
time to time party hereto; and
(4) Swiss Bank as agent (together with any successor agent
hereunder, the "Agent") for such Participating Banks
and the Issuing Bank.
PRELIMINARY STATEMENT
The Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire (the "Issuer"), pursuant
to a Series E Loan and Trust Agreement, dated as of May 1, 1991 (the
"Original Indenture"), by and among the Issuer, the Account Party and State
Street Bank and Trust Company, as trustee (such entity, or its successor as
trustee, being the "Trustee"), previously issued $114,500,000 aggregate
principal amount of The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series E) (such bonds being herein referred
to as the "Taxable Bonds"). Pursuant to the Original Indenture, a First
Supplement thereto, dated as of December 1, 1993 and a Second Supplement
thereto, dated as of May 1, 1995 (the Original Indenture, as so supplemented
by such First Supplement and such Second Supplement and as the same may be
further supplemented, amended or modified from time to time with the written
consent of the Issuing Bank, being herein referred to as the "Indenture"),
the Issuer refunded $44,800,000 aggregate principal amount of the Taxable
Bonds through the issuance of $44,800,000 aggregate principal amount of
Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1993 Tax-Exempt Series E) (such bonds being herein referred to as the
"Existing Tax-Exempt Refunding Bonds"). The $69,700,000 aggregate principal
amount of Taxable Bonds remaining outstanding, the Existing Tax-Exempt
Refunding Bonds and any further Tax-Exempt Refunding Bonds (as defined in the
Indenture) that may be issued in accordance with the Indenture and this
Agreement to refund any of such remaining Taxable Bonds are hereinafter
referred to, collectively, as the "Bonds".
<PAGE>
In connection with the original issuance of the Taxable
Bonds, the Account Party caused Citibank, N.A. ("Citibank") to issue a letter
of credit in support thereof in favor of the Paying Agent, and, in connection
therewith, the Account Party entered into a Letter of Credit and
Reimbursement Agreement, dated as of May 1, 1991 (the "Existing Reimbursement
Agreement") with Citibank as issuing bank thereunder and certain
participating banks referred to therein. Thereafter, in connection with the
issuance of the Existing Tax-Exempt Refunding Bonds, the Account Party caused
Citibank to issue its Amended and Restated Irrevocable Letter of Credit No.
NY0389-30008830, dated December 15, 1993 and in a stated amount of
$119,129,000 (the "Existing Letter of Credit"), in support of the Taxable
Bonds and the Existing Tax-Exempt Refunding Bonds.
The Account Party now wishes to substitute a letter of
credit issued by the Issuing Bank for the Existing Letter of Credit, and, in
furtherance thereof, the Account Party has requested the Issuing Bank to
issue its irrevocable letter of credit in favor of the Paying Agent, in
substantially the form of Exhibit 1.01A hereto (such letter of credit of the
Issuing Bank, as it may from time to time be extended or modified pursuant to
the terms of this Agreement, being the "Letter of Credit"), in the amount of
$119,129,000 (the "Stated Amount"), of which (i) $114,500,000 shall support
the payment of principal of the Bonds (or the portion of the purchase or
redemption price of the Bonds corresponding to principal), (ii) $4,629,000
shall support the payment of up to 128 days' interest on the principal amount
of Taxable Bonds (or the portion of the purchase or redemption price of
Taxable Bonds corresponding to interest), computed at a maximum interest rate
of 16% per annum on the basis of the actual days elapsed and a year of 360
days, and up to 45 days' interest on the principal amount of Existing Tax-
Exempt Refunding Bonds (or the portion of the purchase or redemption price of
Existing Tax-Exempt Refunding Bonds corresponding to interest), computed at a
maximum interest rate of 12% per annum on the basis of the actual days
elapsed and a year of 365 (or 366) days, subject to modification as provided
in Section 2.06 hereof, and (iii) $0.00 shall support the payment of premium
on the Bonds. The Issuing Bank has agreed to issue the Letter of Credit
subject to the terms and conditions set forth herein (including the terms and
conditions relating to the rights and obligations of the Participating
Banks).
NOW, THEREFORE, in consideration of the premises and in
order to induce the Issuing Bank to issue the Letter of Credit and the
Participating Banks to participate in the Letter of Credit and make advances
hereunder, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. In addition to the
terms defined in the Preliminary Statement hereto, as used in this Agreement,
the following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Advances" means Initial Advances and Term Advances,
without differentiation; individually, an "Advance".
<PAGE>
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly
or indirectly, the power to direct or cause the direction
of the management and policies of such entity, whether
through the ownership of voting securities, by contract or
otherwise.
"Agreement for Capacity Transfer" means the Agreement
for Capacity Transfer, dated as of December 1, 1989,
between The Connecticut Light and Power Company ("CL&P")
and the Account Party, as amended by the First Amendment to
Agreement for Capacity Transfer, dated as of May 1, 1992
between CL&P and the Account Party, which provides for
capacity transfers from the Account Party to CL&P.
"Alternate Base Rate" means, for any Interest Period or
any other period, a fluctuating interest rate per annum
equal at all times to the higher from time to time of:
(a) the rate of interest announced publicly by
Swiss Bank in New York, New York, from time to time, as
Swiss Bank's prime rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate from time to time;
plus, in either case, the Applicable Margin for Base Rate
Advances. Each change in the Alternate Base Rate shall
take effect concurrently with any change in such prime rate
or Federal Funds Rate, as the case may be.
"Applicable Commission" means, for any day, the
percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Applicable
Commission 0.50% 0.55% 0.60% 0.70%
Any change in the Applicable Commission caused by a change
in the Applicable Rating Level shall take effect at the
time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Participating Bank, (i)(A) such Participating Bank's
"Domestic Lending Office", in the case of a Base Rate
Advance, and (B) such Participating Bank's "Eurodollar
Lending Office", in the case of a Eurodollar Rate Advance,
in each case as specified opposite such Participating
Bank's name on Schedule I hereto (in the case of a
Participating Bank initially party to this Agreement) or in
<PAGE>
the Participation Assignment pursuant to which such
Participating Bank became a Participating Bank (in the case
of any other Participating Bank), or (ii) such other office
or affiliate of such Participating Bank as such
Participating Bank may from time to time specify to the
Account Party and the Agent.
"Applicable Margin" means, for any day for any
outstanding Advance, the percentage per annum set forth
below in effect on such day, determined on the basis of the
Applicable Rating Level:
Type Of Rating Rating Rating Rating
Advance Level I Level II Level III Level IV
Eurodollar
0.65% 0.70% 0.75% 1.00%
Rate
Base Rate 0.00% 0.00% 0.00% 0.00%
Any change in the Applicable Margin caused by a change in
the Applicable Rating Level shall take effect at the time
such change in the Applicable Rating Level shall occur.
"Applicable Rating Level" shall be determined at any
time and from time to time on the basis of the long-term
ratings of Moody's and S&P applicable at such time to the
Account Party's First Mortgage Bonds (or other senior
secured debt securities if no First Mortgage Bonds are then
outstanding) in accordance with the following:
Rating Rating Rating Rating
Level I Level II Level III Level IV
Ratings by One rating Both One rating All
S&P/Moody's is ratings is other
BBB/Baa2 are BBB- BBB-/Baa3 cases
or higher; /Baa3 or higher;
the other the other
is BBB- is BB+/Ba1
/Baa3 or
higher
The Applicable Rating Level shall be redetermined as and
when any change in the ratings used in the determination
thereof shall be announced by S&P or Moody's, as the case
may be.
"Arrangers" means SBC Capital Markets Inc. and BZW
Division of Barclays Bank PLC.
"Available Amount" in effect at any time means the
maximum aggregate amount available to be drawn at such time
under the Letter of Credit, the determination of such
maximum amount to assume compliance with all conditions for
drawing and no reduction for (i) any amount drawn by the
Paying Agent to make a regularly scheduled payment of
<PAGE>
interest on the Bonds (unless such amount will not be
reinstated under the Letter of Credit) or (ii) any amount
not available to be drawn because Bonds are held by or for
the account of the Account Party and/or in pledge for the
benefit of the Issuing Bank, but after giving effect,
nevertheless, to any reduction in the Stated Amount
effected pursuant to Section 2.06 hereof.
"Base Rate Advance" means an Advance in respect of
which the Account Party has selected in accordance with
Article III hereof, or this Agreement otherwise provides
for, interest to be computed on the basis of the Alternate
Base Rate.
"Bonds" has the meaning assigned to that term in the
Preliminary Statement.
"Business Day" means a day of the year that is not a
Sunday or legal holiday or a day on which banks are
authorized to close in New York City and, (i) if the
applicable Business Day relates to any Eurodollar Rate
Advance, is a day on which dealings are carried on in the
London interbank market and/or (ii) if the applicable
Business Day relates to any action to be taken by, or
notice furnished to or by, or payment to be made to or by,
the Trustee, the Paying Agent, the Remarketing Agent or the
First Mortgage Trustee, is a day on which (A) banking
institutions are not authorized pursuant to law to close,
(B) the corporate trust office of the First Mortgage
Trustee is open for business, (C) banking institutions in
all of the cities in which the principal offices of the
Issuing Bank, the Trustee, the Paying Agent, the First
Mortgage Trustee and, if applicable, the Remarketing Agent
are located are not required or authorized to remain closed
and (D) the New York Stock Exchange is not closed.
"Closing Date" means the Business Day upon which each
of the conditions precedent enumerated in Sections 5.01 and
5.02 hereof shall be fulfilled to the satisfaction of the
Agent, the Issuing Bank, the Participating Banks and the
Account Party. All transactions contemplated to occur on
the Closing Date shall occur contemporaneously on or prior
to May 2, 1995, at the offices of King & Spalding, 120 West
45th Street, New York, New York 10036, at 10:00 A.M. (New
York City time), or at such other place and time as the
parties hereto may mutually agree.
"CL&P" has the meaning assigned to that term in the
definition of Agreement for Capacity Transfer.
"Citibank" has the meaning assigned to that term in the
Preliminary Statement.
"Collateral" means all of the collateral in which
liens, mortgages or security interests are purported to be
granted by any or all of the Security Documents.
<PAGE>
"Commitment" means, for each Participating Bank, such
Participating Bank's Percentage of the Available Amount.
"Commitments" shall refer to the aggregate of the
Commitments.
"Common Equity" means, at any date, an amount equal to
the sum of the aggregate of the par value of, or stated
capital represented by, the outstanding shares of common
stock of the Account Party and the surplus, paid-in, earned
and other, if any, of the Account Party.
"Confidential Information" has the meaning assigned to
that term in Section 10.09 hereof.
"Conversion", "Convert" or "Converted" each refers to a
conversion of Term Advances pursuant to Section 3.04
hereof, including, but not limited to any selection of a
longer or shorter Interest Period to be applicable to such
Term Advances or any conversion of a Term Advance as
described in Section 3.04(c) hereof.
"Credit Termination Date" means the date on which the
Letter of Credit shall terminate in accordance with its
terms.
"Debt" means, for any Person, without duplication, (i)
indebtedness of such Person for borrowed money, (ii)
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) obligations of
such Person to pay the deferred purchase price of property
or services, (iv) obligations of such Person as lessee
under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases (not including the Unit
Contract), (v) obligations (contingent or otherwise) of
such Person under reimbursement or similar agreements with
respect to the issuance of letters of credit, (vi) net
obligations (contingent or otherwise) of such Person under
interest rate swap, "cap", "collar" or other hedging
agreements, (vii) obligations of such person to pay rent or
other amounts under leases entered into in connection with
sale and leaseback transactions involving assets of such
Person being sold in connection therewith, (viii)
obligations under direct or indirect guaranties in respect
of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through
(vii), above, and (ix) liabilities in respect of unfunded
vested benefits under ERISA Plans.
"Default Rate" means a fluctuating interest rate equal
at all times to 2% per annum above the Alternate Base Rate
in effect from time to time.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
<PAGE>
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which
is a "commonly controlled entity" of the Account Party
within the meaning of the regulations under Section 414 of
the Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
an ERISA Multiemployer Plan) maintained for employees of
the Account Party or any ERISA Affiliate and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the
regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the
PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of
the Account Party or any of its ERISA Affiliates from an
ERISA Plan or an ERISA Multiemployer Plan during a plan
year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan or an
ERISA Multiemployer Plan under Section 4041 of ERISA, or
(iv) the institution of proceedings to terminate an ERISA
Plan or an ERISA Multiemployer Plan by the PBGC, or (v) any
other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or
ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means for any Interest Period for any
Eurodollar Rate Advances comprising part of the same Term
Borrowing, an interest rate per annum equal at all times
during such Interest Period to the sum of:
(i) the rate per annum (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum, if
such rate is not such a multiple) determined by the
Agent at which deposits in United States dollars in
amounts comparable to the Eurodollar Rate Advance of
Swiss Bank comprising part of such Term Borrowing and
for comparable periods as such Interest Period are
offered by the principal office of Swiss Bank in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period, plus
(ii)the Applicable Margin.
<PAGE>
"Eurodollar Rate Advance" means an Advance in respect
of which the Account Party has selected in accordance with
Article III hereof, and this Agreement provides for,
interest to be computed on the basis of the Eurodollar
Rate.
"Eurodollar Reserve Percentage" of any Participating
Bank for each Interest Period for each Eurodollar Rate
Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall
be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D or
other regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other
marginal reserve requirement, without benefit of or credit
for proration, exemptions or offsets) for such
Participating Bank with respect to liabilities or assets
consisting of or including "eurocurrency liabilities"
having a term equal to such Interest Period.
"Event of Default" has the meaning assigned to that
term in Section 8.01.
"Existing Letter of Credit" has the meaning assigned to
that term in the Preliminary Statement.
"Existing Reimbursement Agreement" has the meaning
assigned to that term in the Preliminary Statement.
"Existing Tax-Exempt Refunding Bonds" has the meaning
assigned to that term in the Preliminary Statement.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not
so published on the next succeeding Business Day, the
average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Financing Agreements" means: (i) the $452,000,000
(original principal amount) Term Credit Agreement among the
Account Party, the Banks and Co-Agents named therein and
Citibank, as Administrative Agent; and (ii) the
$200,000,000 (original principal amount) Revolving Credit
Agreement among the Account Party, the Banks and Co-Agents
named therein, and Chemical Bank, as Administrative Agent;
in each case as amended modified or supplemented to the
date hereof and as the same may be further amended,
modified or supplemented from and after the date hereof.
<PAGE>
"First Mortgage Bonds" means first mortgage bonds
issued or to be issued by the Account Party and secured,
directly or indirectly, collectively or severally, by one
or more first-priority liens on all or part of the
Indenture Assets pursuant to the First Mortgage Indenture
or another indenture in form and substance satisfactory to
the Majority Lenders. For purposes hereof, all or part of
the First Mortgage Bonds may be issued as collateral for
pollution control revenue bonds or industrial revenue
bonds, whether taxable or tax exempt issued by the Account
Party or by a governmental authority at the Account Party's
request.
"First Mortgage Indenture" means the General and
Refunding Mortgage Indenture, between the Account Party and
New England Merchants National Bank, as trustee and to
which First Fidelity Bank, National Association, New
Jersey, is to be successor trustee, dated as of August 15,
1978, as amended and supplemented through the date hereof
and as the same may thereafter be amended, supplemented or
modified from time to time.
"First Mortgage Trustee" means the trustee from time to
time under the First Mortgage Indenture.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body required in
connection with either (i) the execution, delivery or
performance of the Rate Agreement, any Loan Document,
Related Document, Financing Agreement or Significant
Contract, (ii) the grant and perfection of any security
interest, lien or mortgage contemplated by the Security
Documents, or (iii) the nature of the Account Party's
business as conducted or the nature of the property owned
or leased by it. For purposes of this Agreement, Chapter
362-C of the Revised Statutes Annotated of New Hampshire,
in effect on the date hereof, shall be deemed to be a
Governmental Approval.
"Hazardous Substance" means any waste, substance or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Indenture" has the meaning assigned to that term in
the Preliminary Statement.
"Indenture Assets" means fixed assets of the Account
Party (including related Governmental Approvals and
<PAGE>
regulatory assets) which from time to time are subject to
the first-priority lien under the First Mortgage Indenture.
"Information Memorandum" means the Offering Memorandum,
dated March 1995 regarding the Account Party, as
distributed to the Issuing Bank and the Participating
Banks, including, without limitation, the Annual Reports of
the Account Party and NU for the fiscal year ended December
31, 1993, the Quarterly Report of the Account Party on Form
10-Q for the fiscal quarter ended September 30, 1994 and
the other financial data included therein.
"Initial Advance" has the meaning assigned to that term
in Section 3.02(a) hereof.
"Initial First Mortgage Bonds" means First Mortgage
Bonds (including First Mortgage Bonds securing the Bonds
and First Mortgage Bonds securing other Pollution Control
Revenue Bonds of the Issuer for which the Account Party is
liable) in an aggregate principal amount of $858,985,000
issued in connection with the effectiveness of the Plan.
"Initial Repayment Date" has the meaning assigned to
that term in Section 3.02(a) hereof.
"Interest Component" has the meaning assigned to that
term in the Letter of Credit.
"Interest Drawing" has the meaning assigned to that
term in the Letter of Credit.
"Interest Period" has the meaning assigned to that term
in Section 3.03(b) hereof.
"Issuer" has the meaning assigned to that term in the
Preliminary Statement.
"Issuer Resolution" means the resolution adopted by the
Issuer that authorized the issuance of the Bonds, approved
the terms and provisions of the Bonds, and approved those
of the documents related to the Bonds to which the Issuer
is a party.
"Letter of Credit" has the meaning assigned to that
term in the Preliminary Statement.
"Lien" has the meaning assigned to that term in Section
7.02(a) hereof.
"Loan Documents" means this Agreement and the Security
Documents.
"Major Electric Generating Plants" means the following
nuclear, combustion turbine and coal, oil or diesel-fired
generating stations of the Account Party: the Merrimack
generating station located in Bow, New Hampshire; the
Newington generating station located in Newington, New
Hampshire; the Schiller generating station located in
<PAGE>
Portsmouth, New Hampshire; the White Lake combustion
turbine located in Tamworth, New Hampshire; the Millstone
Unit No. 3 generating station located in Waterford,
Connecticut, and the Wyman Unit No. 4 generating station
located in Yarmouth, Maine.
"Majority Lenders" means on any date of determination,
(i) the Issuing Bank and (ii) Participating Banks who,
collectively, on such date, have Percentages in the
aggregate of at least 66-2/3%. Determination of those
Participating Banks satisfying the criteria specified above
for action by the Majority Lenders shall be made by the
Agent and shall be conclusive and binding on all parties
absent manifest error.
"Merger" means (i) the merger on June 5, 1992 of NU
Acquisition Corp., a wholly-owned subsidiary of NU, with
and into the Account Party and (ii) the transfer on the
same date by the Account Party, as so merged, to NAEC of
the Seabrook Interests in accordance with the Plan and the
Rate Agreement.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"NAEC" means North Atlantic Energy Corporation, a
corporation wholly-owned by NU for the sole purpose of
acquiring the Seabrook Interests, which were acquired by
NAEC from the Account Party on June 5, 1992.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation and a wholly-owned subsidiary of
NU.
"Official Statement" means any Official Statement,
Preliminary Official Statement or similar disclosure
document relating to the Bonds, and shall include any
amendment, supplement or "sticker" thereto.
"Original Indenture" has the meaning assigned to that
term in the Preliminary Statement.
"Participant" shall have the meaning assigned to that
term in Section 10.06(b) hereof.
"Participating Banks" means the Persons listed on the
signature pages hereof following the heading "Participating
Banks" and any other Person who becomes a party hereto
pursuant to Section 10.06 hereof.
"Participation Assignment" means a participation
assignment entered into pursuant to Section 10.06 hereof by
any Participating Bank and an assignee, in substantially
the form of Exhibit 1.01B hereto.
<PAGE>
"Participation Percentage" means, as of any date of
determination (i) with respect to a Participating Bank
initially a party hereto, the percentage set forth opposite
such Participating Bank's name on the signature pages
hereof, except as provided in clause (iii), below, (ii)
with respect to a Participating Bank that became a party
hereto by operation of Section 10.06(a) hereof, the
Participation Percentage stated to be assumed by such
assignee Participating Bank in the relevant Participation
Assignment, except as provided in clause (iii), below, and
(iii) with respect to any Participating Bank described in
clauses (i) and (ii), above, that assigns a percentage of
its interests in accordance with Section 10.06(a) hereof,
its participation percentage as reduced by the percentage
so assigned.
"Paying Agent" means (i) BankAmerica National Trust
Company, as the paying agent for the Bonds under the
Indenture, and (ii) any successor paying agent for the
Bonds under the Indenture.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
estate, unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
"Plan" means that certain Third Amended Joint Plan of
Reorganization of the Account Party, dated December 28,
1989, as confirmed by order of the United States Bankruptcy
Court for the District of New Hampshire on April 20, 1990.
"Pledge Agreement" means the Series E Pledge Agreement,
dated as of May 1, 1991, by the Account Party in favor of
Citibank, as amended by a First Amendment thereto (the
"Pledge Amendment") in substantially the form of Exhibit
1.01C hereto, and as the same may from time to time be
amended, modified or supplemented.
"Pledged Bonds" shall have the meaning assigned to that
term in the Pledge Agreement.
"Preferred Stock" means 5,000,000 shares of Series A
Preferred Stock of the Account Party (par value $25).
"Premium Component" has the meaning assigned to that
term in the Letter of Credit.
"Principal Component" has the meaning assigned to that
term in the Letter of Credit.
"PSNH Mortgage" has the meaning assigned to that term
in the Financing Agreements.
<PAGE>
"Rate Agreement" means the Agreement dated as of
November 22, 1989, as amended by the First Amendment to
Rate Agreement dated as of December 5, 1989, the Second
Amendment to Rate Agreement dated as of December 12, 1989,
the Third Amendment to Rate Agreement dated as of December
28, 1993, the Fourth Amendment to Rate Agreement dated as
of September 21, 1994 and the Fifth Amendment to Rate
Agreement dated as of September 9, 1994, among NUSCO, the
Governor and Attorney General of the State of New Hampshire
and adopted by the Account Party as of July 10, 1990
(excluding the Unit Contract appended as Exhibit A thereto
subsequent to the effectiveness of such contract).
"Recipient" has the meaning assigned to that term in
Section 10.09 hereto.
"Related Documents" means the Letter of Credit, the
Bonds, the Indenture and any Remarketing Agreement.
"Remarketing Agent" has the meaning assigned to that
term in the Indenture.
"Remarketing Agreement" means (i) the Remarketing
Agreement, dated as of May 1, 1991, between the Account
Party and Morgan, Stanley & Co., Incorporated relating to
the Taxable Bonds, (ii) the Remarketing Agreement, dated as
of December 1, 1993, between the Account Party and Morgan,
Stanley & Co., Incorporated relating to the Existing Tax-
Exempt Refunding Bonds, (iii) any similar agreement
subsequently entered into with respect to any other Tax-
Exempt Refunding Bonds and (iv) any successor agreement to
any of the foregoing or any similar agreement between the
Account Party and a successor Remarketing Agent as shall be
in effect from time to time in accordance with the terms of
the Indenture.
"Restricted Payment" has the meaning assigned to that
term in Section 7.02(e) hereof.
"S&P" means Standard and Poor's Ratings Group or any
successor thereto.
"Seabrook" means the nuclear-fueled, steam-electric
generating plant at a site located in Seabrook, New
Hampshire, and the related real property interests,
fixtures, and other fixed assets.
"Seabrook Interests" means all right, title and
interest of the Account Party, prior to the Merger, in and
to the fixed assets of Seabrook, nuclear fuel relating to
Seabrook and Governmental Approvals relating thereto,
including the undeveloped land adjacent to Seabrook then
wholly-owned by the Account Party and described as the
"Adjacent Property" in Schedule D to the PSNH Mortgage.
"Security Documents" means the Pledge Agreement, the
Indenture, the First Mortgage Indenture and the Series G
First Mortgage Bonds.
<PAGE>
"Series D Reimbursement Agreement" means (i) the Second
Series D Letter of Credit and Reimbursement Agreement,
dated as of May 1, 1995, among the Account Party, Barclays
Bank PLC, New York Branch, as issuing bank and agent
thereunder and the Participating Banks referred to therein
relating to the Issuer's Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project -1991
Taxable Series D) and the Issuer's Pollution Control
Refunding Revenue Bonds (Public Service Company of New
Hampshire Project -1992 Tax-Exempt Series D), as the same
may from time to time be amended, modified or supplemented
or (ii) any reimbursement agreement or similar agreement
relating to a substitute credit facility applicable to such
bonds.
"Series G First Mortgage Bonds" means the Account
Party's Series G First Mortgage Bonds.
"Sharing Agreement" means the Sharing Agreement, dated
as of June 1, 1992, among CL&P, Western Massachusetts
Electric Company, Holyoke Water Power Company, Holyoke
Power and Electric Company, the Account Party and NUSCO.
"Significant Contracts" means the following contracts,
in each case as the same may be amended, modified or
supplemented from time to time in accordance with this
Agreement:
(i) the Agreement for Capacity Transfer;
(ii)the Sharing Agreement;
(iii)the Tax Allocation Agreement; and
(iv)the Unit Contract.
"Stated Amount" has the meaning assigned to that term
in the Preliminary Statement hereto.
"Stated Termination Date" means the expiration date
specified in clause (i) of the first paragraph of Paragraph
(1) of the Letter of Credit, as such date may be extended
pursuant to Section 2.05 hereof.
"Tax Allocation Agreement" means the Amended and
Restated Tax Allocation Agreement, dated as of January 1,
1990, among NU and the members of the consolidated group of
which NU is the common parent, including, without
limitation, the Account Party.
"Taxable Bonds" has the meaning assigned to that term
in the Preliminary Statement.
"Tender Drawing" has the meaning assigned to that term
in the Letter of Credit.
<PAGE>
"Term Advance" has the meaning assigned to that term in
Section 3.02(b) hereof, and refers to a Base Rate Advance
or a Eurodollar Rate Advance (each of which shall be a
"Type" of Term Advance). The Type of a Term Advance may
change from time to time when such Term Advance is
Converted. For purposes of this Agreement, all Term
Advances of a Participating Bank (or portions thereof) made
as, or Converted to, the same Type and Interest Period on
the same day shall be deemed a single Term Advance by such
Participating Bank until repaid or next Converted.
"Term Borrowing" means a borrowing consisting of Term
Advances of the same Type and Interest Period made on the
same day by the Participating Banks, ratably in accordance
with their respective Participation Percentages. A Term
Borrowing may be referred to herein as being a "Type" of
Term Borrowing, corresponding to the Type of Term Advances
comprising such Term Borrowing. For purposes of this
Agreement, all Term Advances made as, or Converted to, the
same Type and Interest Period on the same day shall be
deemed a single Term Borrowing until repaid or next
Converted.
"Termination Date" means the Stated Termination Date or
the earlier date of termination of the Commitments pursuant
to Sections 2.02 or 8.02 hereunder.
"Total Capitalization" means, as of any day, the
aggregate of all amounts that would, in accordance with
generally accepted accounting principles applied on a basis
consistent with the standards referred to in Section 1.03
hereof, appear on the balance sheet of the Account Party as
at such day as the sum of (i) the principal amount of all
long-term Debt of the Account Party on such day, (ii) the
par value of, or stated capital represented by, the
outstanding shares of all classes of common and preferred
shares of the Account Party on such day, (iii) the surplus
of the Account Party, paid-in, earned and other, if any, on
such day and (iv) the unpaid principal amount of all short-
term Debt of the Account Party on such day.
"Trustee" has the meaning assigned to that term in the
Preliminary Statement hereto.
"Type" has the meaning assigned to such term in the
definitions of "Term Advance" and "Term Borrowing" herein.
"Unit Contract" means the Unit Contract, dated as of
June 1, 1992, between the Account Party and NAEC.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of
Default.
SECTION 1.02. Computation of Time Periods. In the
computation of periods of time under this Agreement any period of a specified
number of days or months shall be computed by including the first day or
<PAGE>
month occurring during such period and excluding the last such day or month.
In the case of a period of time "from" a specified date "to" or "until" a
later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles applied on a basis consistent with the
application employed in the preparation of the financial projections and pro-
formas referred to in Section 5.01 hereof.
SECTION 1.04. Computations of Outstandings. Whenever
reference is made in this Agreement to the principal amount outstanding on
any date under this Agreement, such reference shall refer to the sum of (i)
the Available Amount on such date, (ii) the aggregate principal amount of all
Advances outstanding on such date and (iii) the aggregate amount of all
demand loans under Section 3.01 hereunder on such date, in each case after
giving effect to all transactions to be made on such date and the application
of the proceeds thereof.
ARTICLE II
THE LETTER OF CREDIT
SECTION 2.01. The Letter of Credit. The Issuing Bank
agrees, on the terms and conditions hereinafter set forth (including, without
limitation, the applicable conditions precedent set forth in Article V
hereof), to issue the Letter of Credit to the Paying Agent, upon not less
than three Business Days prior notice from the Account Party, on the Closing
Date.
SECTION 2.02. Termination of the Commitments. The
obligation of the Issuing Bank to issue the Letter of Credit shall
automatically terminate if unexercised at 5:00 P.M. (New York City time) on
May 7th, 1995.
SECTION 2.03. Commissions and Fees. (a) The Account
Party hereby agrees to pay to the Agent, for the account of the Participating
Banks ratably in accordance with their respective Participation Percentages,
a letter of credit commission on the Available Amount in effect from time to
time from the date of issuance of the Letter of Credit until the Termination
Date (disregarding for such purpose any temporary diminution thereof arising
from drawings under the Letter of Credit to pay interest (or purchase price
corresponding to interest) on the Bonds, regardless of whether the amount so
drawn shall be thereafter reinstated), at a rate per annum equal to the
Applicable Commission, payable quarterly in arrears on the first day of
February, May, August and November in each year, commencing on the first such
date to occur following the date of issuance of the Letter of Credit, and on
the Credit Termination Date.
(b) The Account Party also agrees to pay to the Agent for
the account of the Participating Banks ratably in accordance with their
respective Participation Percentages, a one-time participation fee equal to
five one-hundredths of one percent (0.05%) of the Stated Amount, such
participation fee to be payable in full simultaneously with the issuance of
the Letter of Credit.
<PAGE>
(c) The Account Party also agrees to pay to the Agent, for
the account of the Issuing Bank, such other fees as have been agreed upon by
the Account Party and the Issuing Bank in that certain Series E Fee Agreement
of even date herewith between the Borrower and Swiss Bank (the "Fee
Agreement").
(d) The Account Party also agrees to pay to the Agent, for
its own account and/or the account of SBC Capital Markets Inc., such other
fees as have been agreed upon by the Account Party and the Agent in the Fee
Agreement.
SECTION 2.04. Reinstatement of the Letter of Credit. (a)
The Interest Component and the Principal Component shall, from time to time,
be reinstated by the Issuing Bank in accordance with, and only to the extent
provided in, the Letter of Credit. In no event shall reductions in the
Premium Component be reinstated.
(b) Interest Component. With respect to reinstatement of
reductions in the Interest Component resulting from Interest Drawings:
(i) The Issuing Bank may only deliver to the Paying
Agent any notice of non-reinstatement pursuant to Paragraph
5(i)(A) of the Letter of Credit if (A) the Issuing Bank
and/or the Participating Banks have not been reimbursed in
full by the Account Party for one or more drawings,
together with interest, if any, owing thereon pursuant to
this Agreement, or (B) an Event of Default has occurred and
is then continuing.
(ii) If, subsequent to any such delivery of a notice
of non-reinstatement, the circumstances giving rise to the
delivery of such notice of non-reinstatement shall have
ceased to exist (whether as a result of reimbursement of
unreimbursed drawings, or waiver or cure of an Event of
Default, or otherwise), then, provided that no other Event
of Default shall have occurred and be continuing, the
Issuing Bank shall deliver to the Paying Agent, by hand
delivery or facsimile transmission, a Notice of
Reinstatement in the form of Exhibit 5 to the Letter of
Credit reinstating that portion of the Interest Component
in respect of which such notice of non-reinstatement was
given.
(c) Principal Component. With respect to reinstatement of
a reduction in the Principal Component resulting from any Tender Drawing, IF:
(i) such reduction has not been reinstated pursuant to
Paragraph 5(ii)(A) of the Letter of Credit;
(ii) the Issuing Bank and/or the Participating Banks
shall have been reimbursed by the Account Party for such
Tender Drawing;
(iii) any demand loan(s) and Advance(s) made in
respect of such Tender Drawing shall have been repaid by
the Account Party, together with any interest thereon and
<PAGE>
any other amounts payable hereunder in connection
therewith; AND
(iv) no Event of Default shall have occurred and then
be continuing;
THEN, the Issuing Bank shall deliver to the Paying Agent, by hand delivery or
facsimile transmission, a Notice of Reinstatement in the form of Exhibit 5 to
the Letter of Credit reinstating the Principal Component to the extent of
such Tender Drawing.
SECTION 2.05. Extension of the Stated Termination Date.
Unless the Letter of Credit shall have previously expired in accordance with
its terms, at least 105 days but not more than 120 days before the Stated
Termination Date, the Account Party may, by notice to the Agent (any such
notice being irrevocable), request the Issuing Bank and the Participating
Banks to extend the Stated Termination Date of the Letter of Credit for a
period of one year. If the Account Party shall make such request, the Agent
shall promptly inform the Issuing Bank and the Participating Banks and, no
later than 60 days prior to the Stated Termination Date, the Agent shall
notify the Account Party in writing (with a copy of such notice to the
Trustee and the Paying Agent) if the Issuing Bank and the Participating Banks
consent to such request and the conditions of such consent (including
conditions relating to legal documentation). The granting of any such
consent shall be in the sole and absolute discretion of the Issuing Bank and
the Participating Banks, and if the Agent shall not so notify the Account
Party, such lack of notification shall be deemed to be a determination not to
consent to such request. No such extension shall occur unless the Issuing
Bank and all of the Participating Banks consent thereto (or if less than all
the Participating Banks consent thereto, unless one or more other
Participating Banks agree to assume all of the Commitments of the non-
consenting Participating Banks).
SECTION 2.06. Modification of the Letter of Credit. In the
event that the Account Party elects to cause the issuance of any additional
series of Tax-Exempt Refunding Bonds (as defined in the Indenture) pursuant
to Article IV of the Indenture, the Account Party may, but shall not be
obligated to, propose amendments to the Letter of Credit to change the method
of computing the Interest Component or such other terms thereof as may be
necessary or appropriate in connection with such issuance. Any such proposal
shall be furnished to the Issuing Bank in writing not later than 60 days
prior to the date proposed for such issuance. If the Issuing Bank shall
consent to such amendments (which consent, subject to the provisions of the
next succeeding sentence, shall not be unreasonably withheld) the Issuing
Bank shall, upon surrender of the Letter of Credit by the beneficiary thereof
for amendment (or replacement, as the Issuing Bank may elect), amend the
Letter of Credit accordingly (or issue a replacement Letter of Credit
therefor reflecting such amendments but otherwise identical to the Letter of
Credit so surrendered). Notwithstanding the foregoing, without the consent
of the requisite Participating Banks as determined in accordance with Section
10.01, the Issuing Bank shall not consent to any amendment or amendments that
(i) increase the Stated Amount or the then-existing Available Amount, (ii)
change or modify in any respect the Credit Termination Date or any provision
for determining the expiry or other termination of the Letter of Credit,
(iii) change or modify in any respect the times, places or manner at or in
which drawings under the Letter of Credit are to be presented or paid, (iv)
change or modify in any respect the forms of drawing certificates and other
annexes to the Letter of Credit, (v) change the beneficiary of the Letter of
<PAGE>
Credit or the method prescribed therein for the transfer of the Letter of
Credit or (vi) as determined in the good faith discretion of the Issuing Bank
and its counsel, increase or enlarge the scope, or modify the nature, of the
Issuing Bank's and the Participating Banks' credit exposure to the Account
Party or any legal risks related thereto or expose the Issuing Bank to any
additional liability. In furtherance of the foregoing, the Issuing Bank may
condition the granting of such consent on the receipt by the Issuing Bank of
such certificates, opinions of counsel and other assurances of the Account
Party and its counsel, or bond counsel or the Trustee or Paying Agent, as the
Issuing Bank may reasonably require. Each Participating Bank, by its
execution of this Agreement, or of the Participation Assignment pursuant to
which it became a Participating Bank, consents to, ratifies and affirms all
actions taken and to be taken by the Issuing Bank pursuant to this Section
2.06.
ARTICLE III
REIMBURSEMENT AND ADVANCES
SECTION 3.01. Reimbursement on Demand. Subject to the
provisions of Section 3.02 hereof, the Account Party hereby agrees to pay
(whether with the proceeds of Initial Advances made pursuant to this
Agreement or otherwise) to the Issuing Bank on demand (a) on and after each
date on which the Issuing Bank shall pay any amount under the Letter of
Credit pursuant to any draft, but only after so paid by the Issuing Bank, a
sum equal to such amount so paid (which sum shall constitute a demand loan
from the Issuing Bank to the Account Party from the date of such payment by
the Issuing Bank until so paid by the Account Party), plus (b) interest on
any amount remaining unpaid by the Account Party to the Issuing Bank under
clause (a), above, from the date such amount becomes payable on demand until
payment in full, at the Default Rate in effect from time to time. No
reinstatement of the Interest Component or the Principal Component despite
the failure by the Account Party to reimburse the Issuing Bank for any
previous drawing to pay interest on the Bonds shall limit or impair the
Account Party's obligations under this Section 3.01.
SECTION 3.02. Advances. Each Participating Bank agrees to
make Initial Advances and Term Advances for the account of the Account Party
from time to time upon the terms and subject to the conditions set forth in
this Agreement.
(a) Initial Advances; Repayment of Initial Advances. If
the Issuing Bank shall honor any Tender Drawing and if the conditions
precedent set forth in Section 5.03 of this Agreement have been satisfied as
of the date of such honor, then, each Participating Bank's payment made to
the Issuing Bank pursuant to Section 3.07 hereof in respect of such Tender
Drawing shall be deemed to constitute an advance made for the account of the
Account Party by such Participating Bank (each such advance being an "Initial
Advance" made by such Participating Bank). Each Initial Advance shall be
made as a Base Rate Advance, shall bear interest at the Alternate Base Rate
and shall not be entitled to be Converted. Subject to Article VIII of this
Agreement, each Initial Advance and all interest thereon shall be due and
payable on the earlier to occur of (i) the date 30 days from the date of such
Initial Advance (such repayment date being the "Initial Repayment Date" for
such Initial Advance) and (ii) the Termination Date. The Account Party may
repay the principal amount of any Initial Advance with (and to the extent of)
<PAGE>
the proceeds of a Term Advance made pursuant to subsection (b), below, and
may prepay Initial Advances in accordance with Section 3.06 hereof.
(b) Term Advances; Repayment. Subject to the satisfaction
of the conditions precedent set forth in Section 5.04 hereof and the other
conditions of this subsection (b), each Participating Bank agrees to make one
or more advances for the account of the Account Party ("Term Advances") on
each Initial Repayment Date in an aggregate principal amount equal to the
amount of such Participating Bank's Initial Advances maturing on such Initial
Repayment Date. All Term Advances comprising a single Term Borrowing shall
be made upon written notice given by the Account Party to the Agent not later
than 11:00 A.M. (New York City time) (A) in the case of a Term Borrowing
comprised of Base Rate Advances, on the Business Day of such proposed Term
Borrowing or (B) in the case of a Term Borrowing comprised of Eurodollar Rate
Advances, three Business Days prior to the date of such proposed Term
Borrowing. The Agent shall notify each Participating Bank of the contents of
such notice promptly after receipt thereof. Each such notice shall specify
therein the following information: (W) the date on which such Term Borrowing
is to be made, (X) the principal amount of Term Advances comprising such Term
Borrowing, (Y) the Type of Term Borrowing and (Z) the duration of the initial
Interest Period, if applicable, proposed to apply to the Term Advances
comprising such Term Borrowing. The proceeds of each Participating Bank's
Term Advances shall be applied solely to the repayment of the Initial
Advances made by such Participating Bank and shall in no event be made
available to the Account Party. The principal amount of each Term Advance,
together with all accrued and unpaid interest thereon, shall be due and
payable on the earlier to occur of (x) the same calendar date occurring 35
months following the date upon which such Term Advance is made (or, if such
month does not have a corresponding date, on the last day of such month) and
(y) the Termination Date.
SECTION 3.03. Interest on Advances. The Account Party
shall pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full at the
applicable rate set forth below:
(a) Alternate Base Rate. Except to the extent that the
Account Party shall elect to pay interest on any Advance
for any Interest Period pursuant to paragraph (c) of this
Section 3.03, the Account Party shall pay interest on each
Advance (including all Initial Advances) from the date
thereof until the date such Advance is due, at a
fluctuating interest rate per annum in effect from time to
time equal to the Alternate Base Rate in effect from time
to time. The Account Party shall pay interest on each
Advance bearing interest in accordance with this subsection
quarterly in arrears on the first day of February, May,
August and November in each year and on the Termination
Date or the earlier date for repayment of such Advance
(including the Initial Repayment Date therefor, in the case
of an Initial Advance).
(b) Interest Periods. Subject to the other
requirements of this Section 3.03, the Account Party may
from time to time elect to have the interest on all Term
Advances comprising part of the same Term Borrowing
determined and payable for a specified period (an "Interest
Period" for such Term Advances) in accordance with
<PAGE>
paragraph (c) of this Section 3.03. The first day of an
Interest Period for such Term Advances shall be the date
such Advance is made or most recently Converted, which
shall be a Business Day. All Interest Periods shall end on
or prior to the Stated Termination Date. Any Interest
Period for a Term Advance that would otherwise end after
the Termination Date or earlier date for the repayment of
such Advance shall be deemed to end on the Termination Date
or such earlier repayment date, as the case may be.
(c) Eurodollar Rate. Subject to the requirements of
this Section 3.03 and Article V hereof, the Account Party
may from time to time elect to have any Term Advances
comprising part of the same Term Borrowing made as, or
Converted to, Eurodollar Rate Advances. The Interest
Period applicable to such Eurodollar Rate Advances shall be
of one, two, three or six whole months' duration, as the
Account Party shall select in its notice delivered to the
Agent pursuant to Section 3.02(b) or 3.04 hereof, as
applicable. If the Account Party shall have made such
election, the Account Party shall pay interest on such
Eurodollar Rate Advances at the Eurodollar Rate, for the
applicable Interest Period for such Eurodollar Rate
Advances, which interest shall be payable on the last day
of such Interest Period, on the date for repayment for such
Eurodollar Rate Advances and also, in the case of any
Interest Period of six months' duration, on that day of the
third month of such Interest Period which corresponds with
the first day of such Interest Period (or, if any such
month does not have a corresponding day, then on the last
day of such month). Any Interest Period pertaining to
Eurodollar Rate Advances that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of a calendar month.
(d) Interest Rate Determinations. The Agent shall give
prompt notice to the Account Party and the Participating
Banks of the Eurodollar Rate determined from time to time
by the Agent to be applicable to each Eurodollar Rate
Advance.
SECTION 3.04. Conversion of Term Advances. Subject to
the satisfaction of the conditions precedent set forth in Section 5.03
hereof, the Account Party may elect to Convert one or more Term Advances of
any Type to one or more Term Advances of the same or any other Type on the
following terms and subject to the following conditions:
(a) Each Conversion shall be made as to all Term
Advances comprising a single Term Borrowing upon written
notice given by the Account Party to the Agent not later
than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion. The
Agent shall notify each Participating Bank of the contents
of such notice promptly after receipt thereof. Each such
notice shall specify therein the following information:
(A) the date of such proposed Conversion (which in the case
<PAGE>
of Eurodollar Rate Advances shall be the last day of the
Interest Period then applicable to such Term Advances to be
Converted), (B) Type of, and Interest Period, if any,
applicable to the Term Advances proposed to be Converted,
(C) the aggregate principal amount of Term Advances
proposed to be Converted, and (D) the Type of Term Advances
to which such Term Advances are proposed to be Converted
and the Interest Period, if any, to be applicable thereto.
(b) During the continuance of an Unmatured Default or
an Event of Default, the right of the Account Party to
Convert Term Advances to Eurodollar Rate Advances shall be
suspended, and all Eurodollar Rate Advances then
outstanding shall be Converted to Base Rate Advances on the
last day of the Interest Period then in effect, if, on such
day, an Unmatured Default or an Event of Default shall be
continuing.
(c) If no notice of Conversion is received by the Agent
as provided in subsection (a) above with respect to any
outstanding Eurodollar Rate Advances, the Agent shall treat
such absence of notice as a deemed notice of Conversion
providing for such Advances to be Converted to Base Rate
Advances on the last day of the Interest Period then in
effect for such Eurodollar Rate Advances.
SECTION 3.05. Other Terms Relating to the Making and
Conversion of Advances. (a) Notwithstanding anything in Section 3.02, 3.03
or 3.04, above, to the contrary:
(i) at no time shall more than six different Term
Borrowings be outstanding hereunder; and
(ii)each Term Borrowing consisting of Eurodollar Rate
Advances shall be in the aggregate principal amount of
$10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
(b) Each notice of borrowing pursuant to Section 3.02(b)
hereof and each notice of Conversion pursuant to Section 3.04 hereof shall be
irrevocable and binding on the Account Party.
SECTION 3.06. Prepayment of Advances. (a) The Account
Party shall have no right to prepay any principal amount of any Advances
except in accordance with subsections (b) and (c) below.
(b) The Account Party may, upon at least one Business Day's
notice to the Agent stating the proposed date and aggregate principal amount
of the prepayment (and if such notice is given the Account Party shall),
prepay, in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid, the outstanding
principal amount of (i) all Initial Advances made on the same date or (ii)
all Term Advances comprising the same Term Borrowing, in each case as the
Account Party shall designate in such notice; provided, however, that each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000, or, if less, the aggregate principal amount of all Advances then
outstanding.
<PAGE>
(c) Prior to or simultaneously with the resale of all of
the Bonds purchased with the proceeds of a Tender Drawing, the Account Party
shall prepay, or cause to be prepaid, in full, the then outstanding principal
amount of all Initial Advances and of all Term Advances comprising the same
Term Borrowing(s) arising pursuant to such Tender Drawing, together with all
interest thereon to the date of such prepayment. If less than all of such
Bonds are resold, then prior to or simultaneously with such resale the
Account Party shall prepay or cause to be prepaid that portion of such
Advances, together with all interest thereon to the date of such prepayment,
equal to the then outstanding principal amount thereof multiplied by a
fraction, the numerator of which shall be the principal amount of the Bonds
resold and the denominator of which shall be the principal amount of all of
the Bonds purchased with the proceeds of the relevant Tender Drawing.
SECTION 3.07. Participation; Reimbursement of Issuing
Bank. (a) The Issuing Bank hereby sells and transfers to each Participating
Bank, and each Participating Bank hereby acquires from the Issuing Bank, an
undivided interest and participation to the extent of such Participating
Bank's Participation Percentage in and to (i) the Letter of Credit, including
the obligations of the Issuing Bank under and in respect thereof and the
Account Party's reimbursement and other obligations in respect thereof and
(ii) each demand loan or deemed demand loan made by the Issuing Bank, whether
now existing or hereafter arising.
(b) If the Issuing Bank (i) shall not have been reimbursed
in full for any payment made by the Issuing Bank under the Letter of Credit
on the date of such payment or (ii) shall make any demand loan to the Account
Party, the Issuing Bank shall promptly notify the Agent and the Agent shall
promptly notify each Participating Bank of such non-reimbursement or demand
loan and the amount thereof. Upon receipt of such notice from the Agent,
each Participating Bank shall pay to the Issuing Bank, directly, an amount
equal to such Participating Bank's ratable portion (according to such
Participating Bank's Participation Percentage) of such unreimbursed amount or
demand loan paid or made by the Issuing Bank, plus interest on such amount at
a rate per annum equal to the Federal Funds Rate from the date of such
payment by the Issuing Bank to the date of payment to the Issuing Bank by
such Participating Bank. All such payments by each Participating Bank shall
be made in United States dollars and in same day funds:
(x) not later than 2:45 P.M. (New York City time) on
the day such notice is received by such Participating Bank
if such notice is received at or prior to 12:30 P.M. (New
York City time) on a Business Day; or
(y) not later than 12:00 Noon (New York City time) on
the Business Day next succeeding the day such notice is
received by such Participating Bank, if such notice is
received after 12:30 P.M. (New York City time) on a
Business Day.
If a Participating Bank shall have paid to the Issuing Bank its ratable
portion of any unreimbursed amount or demand loan paid or made by the Issuing
Bank, together with all interest thereon required by the second sentence of
this subsection (b), such Participating Bank shall be entitled to receive its
ratable share of all interest paid by the Account Party in respect of such
unreimbursed amount or demand loan from the date paid or made by the Issuing
Bank. If such Participating Bank shall have made such payment to the Issuing
Bank, but without all such interest thereon required by the second sentence
<PAGE>
of this subsection (b), such Participating Bank shall be entitled to receive
its ratable share of the interest paid by the Account Party in respect of
such unreimbursed amount or demand loan only from the date it shall have paid
all interest required by the second sentence of this subsection (b).
(c) Each Participating Bank's obligation to make each
payment to the Issuing Bank, and the Issuing Bank's right to receive the
same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the foregoing or
Section 4.06 hereof, or the occurrence or continuance of an Event of Default,
or the non-satisfaction of any condition precedent set forth in Sections 5.03
or 5.04 hereof, or the failure of any other Participating Bank to make any
payment under this Section 3.07. Each Participating Bank further agrees that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(d) The failure of any Participating Bank to make any
payment to the Issuing Bank in accordance with subsection (b) above, shall
not relieve any other Participating Bank of its obligation to make payment,
but neither the Issuing Bank nor any Participating Bank shall be responsible
for the failure of any other Participating Bank to make such payment. If any
Participating Bank shall fail to make any payment to the Issuing Bank in
accordance with subsection (b) above, then such Participating Bank shall pay
to the Issuing Bank forthwith on demand such corresponding amount together
with interest thereon, for each day until the date such amount is repaid to
the Issuing Bank at the Federal Funds Rate. Nothing herein shall in any way
limit, waive or otherwise reduce any claims that any party hereto may have
against any non-performing Participating Bank.
(e) If any Participating Bank shall fail to make any
payment to the Issuing Bank in accordance with subsection (b) above, then, in
addition to other rights and remedies which the Issuing Bank may have, the
Agent is hereby authorized, at the request of the Issuing Bank, to withhold
and to apply the payment of such amounts owing to such Participating Bank to
the Issuing Bank and any related interest, that portion of any payment
received by the Agent that would otherwise be payable to such Participating
Bank. In furtherance of the foregoing, if any Participating Bank shall fail
to make any payment to the Issuing Bank in accordance with subsection (b),
above, and such failure shall continue for five Business Days following
written notice of such failure from the Issuing Bank to such Participating
Bank, the Issuing Bank may acquire, or transfer to a third party in exchange
for the sum or sums due from such Participating Bank, such Participating
Bank's interest in the related unreimbursed amounts and demand loans and all
other rights of such Participating Bank hereunder in respect thereof,
without, however, relieving such Participating Bank from any liability for
damages, costs and expenses suffered by the Issuing Bank as a result of such
failure. The purchaser of any such interest shall be deemed to have acquired
an interest senior to the interest of such Participating Bank and shall be
entitled to receive all subsequent payments which the Issuing Bank or the
Agent would otherwise have made hereunder to such Participating Bank in
respect of such interest.
<PAGE>
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) The
Account Party shall make each payment hereunder (i) in the case of
reimbursement obligations pursuant to Section 3.01 hereof (excluding any
portion thereof in respect of which an Initial Advance is to be made), not
later than 2:30 P.M. (New York City time) on the day the related drawing
under the Letter of Credit is paid by the Issuing Bank, and (ii) in all other
cases, not later than 12:30 P.M. (New York City time) on the day when due, in
each case in lawful money of the United States of America to the Agent at its
address referred to in Section 10.02 hereof in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of reimbursements, principal, interest, fees or other amounts payable
to the Issuing Bank and the Participating Banks to whom the same are payable,
ratably, at its address set forth in Section 10.02 hereof (in the case of the
Issuing Bank) or for the account of their respective Applicable Lending
Offices (in the case of the Participating Banks), in each case to be applied
in accordance with the terms of this Agreement.
(b) The Account Party hereby authorizes the Issuing Bank,
and each Participating Bank, if and to the extent payment owed to the Issuing
Bank, or such Participating Bank, as the case may be, is not made when due
hereunder, to charge from time to time against any or all of the Account
Party's accounts with the Issuing Bank or such Participating Bank, as the
case may be, any amount so due.
(c) All computations of interest based on the Alternate
Base Rate when based on Swiss Bank's prime rate referred to in the definition
of "Alternate Base Rate" shall be made by the Agent on the basis of a year of
365 or 366 days, as the case may be, for the actual days elapsed. All other
computations of interest hereunder (including computations of interest based
on the Eurodollar Rate and the Federal Funds Rate (including the Alternate
Base Rate if and so long as such Rate is based on the Federal Funds Rate)),
all computations of commissions and fees hereunder and all computations of
other amounts pursuant to Section 4.03 hereof, shall be made by the Agent or
the party claiming such other amounts, as the case may be, on the basis of a
year of 360 days for the actual days elapsed. In each such case, such
computation shall be made for the actual number of days (including the first
day, but excluding the last day) occurring in the period for which such
interest, commissions or fees are payable. Each such determination by the
Agent or a Participating Bank, as the case may be, shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to
occur, on a day other than a Business Day, such payment shall be made and the
last day of such Interest Period shall occur on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest, commissions and fees hereunder; provided,
however, that if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made, or the last day of an
Interest Period for a Eurodollar Rate Advance to occur, in the next following
calendar month, such payment shall be made on the next preceding Business Day
and such reduction of time shall in such case be included in the computation
of payment of interest hereunder.
<PAGE>
(e) Unless the Agent shall have received notice from the
Account Party prior to the date on which any payment is due to the Issuing
Bank or the Participating Banks hereunder that the Account Party will not
make such payment in full, the Agent may assume that the Account Party has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to the Issuing Bank
and/or each Participating Bank on such due date an amount equal to the amount
then due the Issuing Bank and/or such Participating Bank. If and to the
extent the Account Party shall not have so made such payment in full to the
Agent, the Issuing Bank and/or each such Participating Bank shall repay to
the Agent forthwith on demand such amount distributed to the Issuing Bank
and/or such Participating Bank, together with interest thereon, for each day
from the date such amount is distributed to the Issuing Bank and/or such
Participating Bank until the date the Issuing Bank and/or such Participating
Bank repays such amount to the Agent, at the Federal Funds Rate.
(f) If, after the Agent has paid to the Issuing Bank or any
Participating Bank any amount pursuant to subsection (a) above, such payment
is rescinded or must otherwise be returned or must be paid over by the Agent
or the Issuing Bank to any Person, whether pursuant to any bankruptcy or
insolvency law, Section 4.04 hereof or otherwise, such Participating Bank
shall, at the request of the Agent or the Issuing Bank, promptly repay to the
Agent or the Issuing Bank, as the case may be, an amount equal to its ratable
share of such payment, together with any interest required to be paid by the
Agent or the Issuing Bank with respect to such payment.
SECTION 4.02. Default Interest. Any amounts payable
hereunder that are not paid when due shall (to the fullest extent permitted
by law) bear interest, from the date when due until paid in full, at the
Default Rate, payable on demand.
SECTION 4.03. Yield Protection. (a) Change in
Circumstances. Notwithstanding any other provision herein, if after the date
hereof, the adoption of or any change in applicable law or regulation or in
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to the Issuing Bank or any Participating Bank of the principal of or interest
on any Eurodollar Rate Advance made by such Participating Bank or any fees or
other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of the Issuing Bank or such Participating
Bank, or its Applicable Lending Office, by the jurisdiction in which the
Issuing Bank or such Participating Bank has its principal office or in which
such Applicable Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of credit
(or participatory interests therein) issued by, commitments or assets of,
deposits with or for the account of, or credit extended by, the Issuing Bank
or such Participating Bank, or (iii) shall impose on the Issuing Bank or such
Participating Bank any other condition affecting this Agreement, the Letter
of Credit or participatory interests therein or Eurodollar Rate Advances, and
the result of any of the foregoing shall be (A) to increase the cost to the
Issuing Bank or such Participating Bank of issuing, maintaining or
participating in this Agreement or the Letter of Credit or of agreeing to
make, making or maintaining any Advance or (B) to reduce the amount of any
sum received or receivable by the Issuing Bank or such Participating Bank
hereunder (whether of principal, interest or otherwise), then the Account
<PAGE>
Party will pay to the Issuing Bank or such Participating Bank, upon demand,
such additional amount or amounts as will compensate the Issuing Bank or such
Participating Bank for such additional costs incurred or reduction suffered.
(b) Capital. If the Issuing Bank or any Participating Bank
shall have determined that the applicability of any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or
the adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Issuing Bank or any
Participating Bank (or any Applicable Lending Office of the Issuing Bank or
such Participating Bank), or any holding company of any such entity, with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has
or would have the effect (i) of reducing the rate of return on such entity's
capital or on the capital of such entity's holding company, if any, as a
consequence of this Agreement, the Letter of Credit or such entity's
participatory interest therein, any Commitment hereunder or the portion of
the Advances made by such entity pursuant hereto to a level below that which
such entity or such entity's holding company could have achieved, but for
such applicability, adoption, change or compliance (taking into consideration
such entity's policies and the policies of such entity's holding company with
respect to capital adequacy), or (ii) of increasing or otherwise determining
the amount of capital required or expected to be maintained by such entity or
such entity's holding company based upon the existence of this Agreement, the
Letter of Credit or such entity's participatory interest therein, any
Commitment hereunder, the portion of the Advances made by such entity
pursuant hereto and other similar such credits, participations, commitments,
agreements or assets, then from time to time the Account Party shall pay to
the Issuing Bank or such Participating Bank, upon demand, such additional
amount or amounts as will compensate such entity or such entity's holding
company for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Account Party shall pay to
each Participating Bank upon demand, so long as such Participating Bank shall
be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on
the unpaid principal amount of such Participating Bank's portion of each
Eurodollar Rate Advance, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to
the remainder obtained by subtracting (i) the rate described in clause (i) of
the definition of "Eurodollar Rate" for the Interest Period for such Advance
from (ii) the rate obtained by dividing such rate by a percentage equal to
100% minus the Eurodollar Reserve Percentage of such Participating Bank for
such Interest Period. Such additional interest shall be determined by such
Participating Bank and notified to the Account Party and the Issuing Bank.
(d) Breakage Indemnity. The Account Party shall indemnify
each Participating Bank against any loss, cost or reasonable expense which
such Participating Bank may sustain or incur as a consequence of (i) any
failure by the Account Party to fulfill on the date of any Advance or
Conversion hereunder the applicable conditions set forth in Articles III
and V, (ii) any failure by the Account Party to Convert any Advance hereunder
<PAGE>
after irrevocable notice of Conversion has been given pursuant to
Section 3.04 hereof, (iii) any payment, prepayment or Conversion of a
Eurodollar Rate Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Advance or any part thereof or
interest accrued thereon, as and when due and payable (at the due date
thereof, by irrevocable notice of prepayment or otherwise) or (v) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Advance or any part thereof as a Eurodollar Rate Advance. Such
loss, cost or reasonable expense shall include an amount equal to the excess,
if any, as reasonably determined by such Participating Bank, of (A) its cost
of obtaining the funds for the Advance being paid, prepaid, Converted or not
borrowed (based on the Eurodollar Rate) for the period from the date of such
payment, prepayment, Conversion or failure to borrow to the last day of the
Interest Period for such Advance (or, in the case of a failure to borrow, the
Interest Period for such Advance which would have commenced on the date of
such failure) over (B) the amount of interest (as reasonably determined by
such Participating Bank) that would be realized by such Participating Bank in
reemploying the funds so paid, prepaid, Converted or not borrowed for such
period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that each Participating Bank shall have
funded each such Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the applicable interest rate
for such Advance.
(e) Notices. A certificate of the Issuing Bank or any
Participating Bank setting forth such entity's claim for compensation
hereunder and the amount necessary to compensate such entity or its holding
company pursuant to subsections (a) through (d) of this Section 4.03 shall be
submitted to the Account Party and the Issuing Bank and shall be conclusive
and binding for all purposes, absent manifest error. The Account Party shall
pay the Issuing Bank or such Participating Bank directly the amount shown as
due on any such certificate within ten days after its receipt of the same.
The failure of any entity to provide such notice or to make demand for
payment under this Section 4.03 shall not constitute a waiver of such
Participating Bank's rights hereunder; provided, that such entity shall not
be entitled to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or reserve if
such demand is made more than one year following the later of such entity's
incurrence or sufferance thereof or such entity's actual knowledge of the
event giving rise to such entity's rights pursuant to such subsections. The
protection of this Section 4.03 shall be available to the Issuing Bank and
each Participating Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or regulation
or in the interpretation or administration thereof by any governmental
authority charged with the administration or interpretation thereof shall
make it unlawful for any Participating Bank to make or maintain any
Eurodollar Rate Advance or to give effect to its obligations as contemplated
hereby with respect to any Eurodollar Rate Advance, then, by written notice
to the Account Party and the Issuing Bank, such Participating Bank may:
<PAGE>
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Participating Bank hereunder,
whereupon the right of the Account Party to select
Eurodollar Rate Advances for any Advance or Conversion
shall be forthwith suspended until such Participating Bank
shall withdraw such notice as provided hereinbelow or shall
cease to be a Participating Bank hereunder; and
(ii) require that all outstanding Eurodollar Rate
Advances be Converted to Base Rate Advances, in which event
all Eurodollar Rate Advances shall be automatically
Converted to Base Rate Advances as of the effective date of
such notice as provided hereinbelow.
Upon receipt of any such notice, the Agent shall promptly notify the
Participating Banks thereof. Promptly upon becoming aware that the
circumstances that caused such Participating Bank to deliver such notice no
longer exist, such Participating Bank shall deliver notice thereof to the
Account Party and the Agent withdrawing such prior notice (but the failure to
do so shall impose no liability upon such Participating Bank). Promptly upon
receipt of such withdrawing notice from such Participating Bank, the Agent
shall deliver notice thereof to the Account Party and the Participating Banks
and such suspension shall terminate. Prior to any Participating Bank giving
notice to the Account Party under this subsection (f), such Participating
Bank shall use reasonable efforts to change the jurisdiction of its
Applicable Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Participating Bank, be otherwise
disadvantageous to such Participating Bank. Any notice to the Account Party
by any Participating Bank shall be effective as to each Eurodollar Rate
Advance on the last day of the Interest Period currently applicable to such
Eurodollar Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Account Party and the
Agent.
(g) Market Rate Disruptions. If, (i) the Agent determines
that an adequate basis does not exist for the determination of the Eurodollar
Rate for Eurodollar Rate Advances or (ii) if the Majority Lenders shall
notify the Agent that the Eurodollar Rate will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances, the right of the Account Party to select
or receive or Convert into Eurodollar Rate Advances shall be forthwith
suspended until the Agent shall notify the Account Party and the
Participating Banks that the circumstances causing such suspension no longer
exist, and until such notification from the Agent, each request for or
Conversion into Eurodollar Rate Advances hereunder shall be deemed to be a
request for or Conversion into Base Rate Advances.
SECTION 4.04. Sharing of Payments, Etc. If any
Participating Bank shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise, but excluding any
proceeds received by assignments or sales of participations in accordance
with Section 10.06 hereof to a Person that is not an Affiliate of the Account
Party) on account of the Advances owing to it (other than pursuant to Section
4.03 hereof) in excess of its ratable share of payments on account of the
Advances obtained by all the Participating Banks, such Participating Bank
shall forthwith purchase from the other Participating Banks such
participation in the portions of the Advances owing to them as shall be
<PAGE>
necessary to cause such purchasing Participating Bank to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Participating Bank, such purchase from each Participating Bank shall be
rescinded and such Participating Bank shall repay to the purchasing
Participating Bank the purchase price to the extent of such recovery together
with an amount equal to such Participating Bank's ratable share (according to
the proportion of (i) the amount of such Participating Bank's required
repayment to (ii) the total amount so recovered from the purchasing
Participating Bank) of any interest or other amount paid or payable by the
purchasing Participating Bank in respect of the total amount so recovered.
The Account Party agrees that any Participating Bank so purchasing a
participation from another Participating Bank pursuant to this Section 4.04
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation
as fully as if such Participating Bank were the direct creditor of the
Account Party in the amount of such participation. Notwithstanding the
foregoing, if any Participating Bank shall obtain any such excess payment
involuntarily, such Participating Bank may, in lieu of purchasing
participation from the other Participating Banks in accordance with this
Section 4.04, on the date of receipt of such excess payment, return such
excess payment to the Agent for distribution in accordance with Section
4.01(a) hereof.
SECTION 4.05. Taxes. (a) All payments by the Account
Party hereunder shall be made in accordance with Section 4.01, free and clear
of and without deduction for all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Participating Bank and the Issuing
Bank, taxes imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Participating Bank or
the Issuing Bank (as the case may be) is organized or any political
subdivision thereof and, in the case of each Participating Bank, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Participating Bank's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Account Party shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Participating
Bank or the Issuing Bank, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such
Participating Bank or the Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Account Party shall make such deductions and (iii) the Account
Party shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Account Party agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement (hereinafter referred to as "Other Taxes").
(c) The Account Party will indemnify each Participating
Bank and the Issuing Bank for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and any Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.05) paid by such
<PAGE>
Participating Bank or the Issuing Bank (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Participating Bank or the Issuing Bank (as the case may be) makes
written demand therefor. If any Taxes or Other Taxes for which a
Participating Bank or the Issuing Bank has received payments from the Account
Party hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Participating Bank, such
Participating Bank shall promptly forward to the Account Party any such
refunded amount. The Account Party's, the Issuing Bank's and each
Participating Bank's obligations under this Section 4.05 shall survive the
payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes,
the Account Party will furnish to the Issuing Bank, at its address referred
to in Section 10.02 hereof, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Participating Bank not incorporated in the United
States or a jurisdiction within the United States shall, on or prior to the
date it becomes a Participating Bank hereunder, deliver to the Account Party
and the Issuing Bank such certificates, documents or other evidence, as
required by the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), or treasury regulations issued pursuant thereto, including
Internal Revenue Service Form 4224 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Participating Bank establishing that it is (i) not
subject to withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax treaty. Each
Participating Bank shall promptly notify the Account Party and the Issuing
Bank of any change in its Applicable Lending Office and shall deliver to the
Account Party and the Issuing Bank together with such notice such
certificates, documents or other evidence referred to in the immediately
preceding sentence. Unless the Account Party and the Issuing Bank have
received forms or other documents satisfactory to them indicating that
payments hereunder are not subject to United States of America withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Account Party or the Issuing Bank shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any
Participating Bank organized under the laws of a jurisdiction outside the
United States of America. Each Participating Bank represents and warrants
that each such form supplied by it to the Issuing Bank and the Account Party
pursuant to this Section 4.05, and not superseded by another form supplied by
it, is or will be, as the case may be, complete and accurate.
(f) Any Participating Bank claiming any additional amounts
payable pursuant to this Section 4.05 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate
or document requested by the Account Party or to change the jurisdiction of
its Applicable Lending Office if the making of such a filing or change would
avoid the need for or reduce the amount of any such additional amounts which
may thereafter accrue and would not, in the sole determination of such
Participating Bank, be otherwise disadvantageous to such Participating Bank.
SECTION 4.06. Obligations Absolute. The obligations of
the Account Party under this Agreement shall be unconditional and
<PAGE>
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (as the same may be amended from time to time) under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Security Documents or Related
Documents or any document or agreement delivered in
connection therewith;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Account Party in respect of the Letter
of Credit or any other amendment or waiver of or any
consent to departure from all or any of the Loan Documents
or the Related Documents or any document or agreement
delivered in connection therewith;
(iii) the existence of any claim, set-off, defense
or other right which the Account Party may have at any time
against the Paying Agent, the Trustee or any other
beneficiary, or any transferee, of the Letter of Credit (or
any persons or entities for whom the Paying Agent, the
Trustee, any such beneficiary or any such transferee may be
acting), the Agent, the Issuing Bank, or any other person
or entity, whether in connection with this Agreement, the
transactions contemplated in any of the Loan Documents or
the Related Documents, or any unrelated transaction;
(iv) any statement or any other document presented
under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any
respect, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall
have engaged in gross negligence or willful misconduct with
respect thereto;
(v) payment by the Issuing Bank under the Letter
of Credit against presentation of a draft or certificate
which does not comply with the terms of the Letter of
Credit, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall
have engaged in gross negligence or willful misconduct with
respect thereto;
(vi) any exchange of, release of or non-perfection
of any interest in any collateral, or any release or
amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Account
Party in respect of the Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
SECTION 4.07. Evidence of Indebtedness. The Issuing Bank
and each Participating Bank shall maintain, in accordance with their usual
practice, an account or accounts evidencing the indebtedness of the Account
Party resulting from each drawing under the Letter of Credit (in the case of
<PAGE>
the Issuing Bank) and from each Advance (in the case of each Participating
Bank) made from time to time hereunder and the amounts of principal and
interest payable and paid from time to time hereunder. In any legal action
or proceeding in respect of this Agreement, the entries made in such account
or accounts shall, in the absence of manifest error, be conclusive evidence
of the existence and amounts of the obligations of the Account Party therein
recorded.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Issuance of the
Letter of Credit. The obligation of the Issuing Bank to issue the Letter of
Credit and of each Participating Bank to make the Advances to be made by it
is subject to the fulfillment of the conditions precedent that the Agent
shall have received on or before the day of such issuance the following, each
dated such day (except where specified otherwise below), in form and
substance satisfactory to each Participating Bank (except where specified
otherwise below) and in sufficient copies for each Participating Bank:
(a) Agreements:
(i) Counterparts of this Agreement, duly executed and
delivered by the Account Party, the Agent, the Issuing Bank
and each Participating Bank listed on the signature pages
hereto.
(ii)Counterparts of the Pledge Amendment, duly executed
by the Account Party, Citibank, the Agent and the Issuing
Bank, and copies of the Pledge Agreement.
(iii) For each Participating Bank who shall so
request, executed copies (or duplicate copies thereof
certified as of the Closing Date by the Account Party in a
manner satisfactory to the Agent to be a true copy) of each
other Security Document, duly executed by the parties
thereto.
(iv)For each Participating Bank who shall so request,
executed copies (or duplicate copies thereof certified as
of the Closing Date by the Account Party in a manner
satisfactory to the Agent to be a true copy) of the Rate
Agreement and each Significant Contract and all amendments,
modifications and supplements thereto, in each such case
duly executed by the respective parties thereto.
(b) Corporate Matters:
(i) A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying that (A) there
has been delivered to the Agent, and to each other
Participating Bank known to such officers to have so
requested, true and correct copies of the Articles of
Incorporation of the Account Party and the By-laws of the
Account Party, in each case as in effect on the Closing
Date and (B) attached to such certificate are true and
<PAGE>
correct copies of the resolutions of the Boards of
Directors of the Account Party approving, if and to the
extent necessary, this Agreement, the other Loan Documents,
the Related Documents to which it is a party and the other
documents to be delivered by or on behalf of the Account
Party hereunder and thereunder, and of all documents
evidencing other necessary corporate action, if any, with
respect to the execution, delivery and performance by or on
behalf of the Account Party of this Agreement, the other
Loan Documents and such Related Documents and certifying
that such resolutions and other corporate actions, if any,
are in full force and effect and have not been revoked,
rescinded or modified.
(ii)A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying the names and
true signatures of the officers of the Account Party
authorized to sign this Agreement, the other Loan Documents
and the other documents to be delivered hereunder and
thereunder.
(c) Governmental Approvals, Litigation and the Merger:
(i) A certificate of a duly authorized officer of the
Account Party certifying that attached thereto are true and
correct copies of all Governmental Approvals referred to in
clause (i) of the definition of "Governmental Approval"
required to be obtained or made by the Account Party in
connection with the execution and delivery of this
Agreement and the issuance of the Letter of Credit.
(ii)A certificate signed by the Assistant General
Counsel of NUSCO certifying that no court has granted a
motion for stay or any request for similar relief in
connection with the Plan, the Merger, the Loan Documents,
the Related Documents or the transactions contemplated
thereunder.
(iii) A certificate of a duly authorized officer of
the Account Party to the effect that there is no pending or
known threatened action or proceeding (including, without
limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the
Account Party or its properties before any court,
governmental agency or arbitrator (A) which affects or
purports to affect the legality, validity or enforceability
of the Loan Documents or the Related Documents or any of
them or (B) as to which there is a reasonable possibility
of an adverse determination and which, if adversely
determined, would materially adversely affect the financial
condition, properties, prospects or operations of the
Account Party; except, for purposes of clause (B) only,
such as is described in the Account Party's Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 or
in Schedule II hereto.
<PAGE>
(iv) Certificates signed by duly authorized officers
of the Account Party and NU to the effect that all
conditions to the occurrence of the Merger were satisfied
or waived and the Merger was consummated on June 5, 1992.
(d) Financial, Accounting and Compliance Matters:
(i) An audited balance sheet of the Account Party as at
December 31, 1994 and the related statements of the Account
Party's results of operations, retained earnings and cash
flows for and as of the year then ended, together with
copies of all Current Reports, if any, filed by the Account
Party with the Securities and Exchange Commission on or
after December 31, 1994.
(ii)A certificate signed by the Treasurer or Assistant
Treasurer of the Account Party, certifying as to the
absence of any material adverse change in the financial
condition, operations, properties or prospects of the
Account Party since December 31, 1994.
(iii) Financial projections, on assumptions
acceptable to the Participating Banks, demonstrating
projected compliance with Section 7.01(i) hereof and the
terms of this Agreement and the Financing Agreements.
(iv) A certificate signed by the Chief Financial
Officer, Treasurer or Assistant Treasurer of NU, certifying
as to the absence of any material adverse change in the
financial condition, operations, properties or prospects of
NU since December 31, 1994.
(v) A certificate of a duly authorized officer of the
Account Party to the effect that:
(A) the representations and warranties contained
in Section 6.01 are correct in all material respects on
and as of the Closing Date before and after giving
effect to the issuance of the Letter of Credit;
(B) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default,
or would result from the issuance of the Letter of
Credit;
(C) the Financing Agreements are in full force and
effect and no "Event of Default" or "Unmatured Default"
(as defined therein) has occurred and is continuing;
and
(D) the Series G First Mortgage Bonds were duly
issued to the Trustee in accordance with the Indenture,
are presently outstanding, and no "Event of Default"
(as defined in the First Mortgage Indenture) has
occurred and is continuing.
(e) Relating to the Issuance of the Bonds:
<PAGE>
(i) A letter from Palmer & Dodge, Bond Counsel,
addressed to the Agent, the Issuing Bank and the
Participating Banks and stating therein that the Agent, the
Issuing Bank and the Participating Banks may rely on the
opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(ii) A letter from Palmer & Dodge, counsel to the
Issuer, addressed to the Agent, the Issuing Bank and the
Participating Banks and stating therein that the Agent, the
Issuing Bank and the Participating Banks may rely on the
opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(iii) A letter from Sulloway & Hollis, New Hampshire
counsel to the Account Party, addressed to the Agent, the
Issuing Bank and the Participating Banks and stating
therein that the Agent, the Issuing Bank and the
Participating Banks may rely on the opinion of such firm
rendered in connection with the issuance of the Taxable
Bonds, together with a copy of such opinion.
(iv) A letter from Day, Berry & Howard, counsel to the
Account Party, addressed to the Agent, the Issuing Bank and
the Participating Banks and stating therein that the Agent,
the Issuing Bank and the Participating Banks may rely on
the opinions of such firm rendered in connection with the
respective issuances of the Taxable Bonds and the Existing
Tax-Exempt Refunding Bonds, together with copies of all
such opinions.
(v) Copies of the opinions of Drummond Woodsum &
MacMahon, special Maine counsel to the Account Party,
rendered in connection with the respective issuances of the
Taxable Bonds and the Existing Tax-Exempt Refunding Bonds,
authorizing reliance thereon by (A) Day, Berry & Howard in
connection with the corresponding opinions of that firm
referred to in clause (iv), above, and (B) by any party
authorized to rely on such opinions of Day, Berry & Howard.
(vi) Copies of the opinions of Zuccaro, Willis & Bent,
special Vermont counsel to the Account Party, rendered in
connection with the respective issuances of the Taxable
Bonds and the Existing Tax-Exempt Refunding Bonds,
authorizing reliance thereon by (A) Day, Berry & Howard in
connection with the corresponding opinions of that firm
referred to in clause (iv), above, and (B) by any party
authorized to rely on such opinions of Day, Berry & Howard.
(vii) Copies of all such other agreements, documents
and materials (including opinions of counsel or reliance
letters in respect thereof) as the Agent, the Issuing Bank
or any Participating Bank may reasonably request relating
to the issuance, offering and sale of the Taxable Bonds,
<PAGE>
the Existing Tax-Exempt Refunding Bonds and the Series G
First Mortgage Bonds.
(f) Opinions of Counsel:
Favorable opinions of:
(i) Day, Berry & Howard, counsel to the Account
Party, in substantially the form of Exhibit 5.01A and
as to such other matters as the Majority Lenders,
through the Agent, may reasonably request;
(ii)Rath, Young and Pignatelli, P.A., special New
Hampshire counsel to the Account Party, in
substantially the form of Exhibit 5.01B and as to such
other matters as the Majority Lenders, through the
Agent, may reasonably request;
(iii) Jeffrey C. Miller, Assistant General Counsel
of NUSCO, in substantially the form of Exhibit 5.01C
and as to such other matters as the Majority Lenders,
through the Agent, may reasonably request;
(iv)Drummond Woodsum & MacMahon, special Maine
counsel to the Account Party, in substantially the form
of Exhibit 5.01D and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request;
(v) Zuccaro Willis & Bent, special Vermont counsel
to the Account Party, in substantially the form of
Exhibit 5.01E and as to such other matters as the
Majority Lenders, through the Agent, may reasonably
request; and
(vi)King & Spalding, special New York counsel to
the Agent and the Issuing Bank, in substantially the
form of Exhibit 5.01F.
(g) Miscellaneous:
(i) A certificate of Citibank, N.A., as issuing bank
thereunder, to the effect that (A) all amounts payable in
connection with the Existing Reimbursement Agreement and
the letter of credit issued thereunder have been paid to it
and (B) it thereby surrenders any and all rights it may
have under the Related Documents arising in connection with
the Existing Reimbursement Agreement and the letter of
credit issued thereunder, except for any such rights it may
have as an indemnified party thereunder.
(ii)Letters from S&P and Moody's to the effect that the
Taxable Bonds have been rated A-1+ and P-1, respectively,
and the Tax-Exempt Refunding Bonds have been rated A-1+ and
VMIG-1, respectively, and that the issuance of the Letter
of Credit in substitution for the Existing Letter of Credit
will not, by itself, result in a lowering of such ratings,
<PAGE>
such letters to be in form and substance satisfactory to
the Issuing Bank.
(iii) Such other approvals, opinions and documents
as the Majority Lenders, through the Issuing Bank, may
reasonably request as to the legality, validity, binding
effect or enforceability of the Loan Documents or the
financial condition, properties, operations or prospects of
the Account Party.
SECTION 5.02. Additional Conditions Precedent to the
Issuance of the Letter of Credit. The obligation of the Issuing Bank to
issue the Letter of Credit and of each Participating Bank to make the
Advances to be made by it shall be subject to the further conditions
precedent that, on the date of the issuance of the Letter of Credit:
(a) the representations and warranties contained in
Section 6.01 shall be correct in all material respects on
and as of the Closing Date before and after giving effect
to the issuance of the Letter of Credit;
(b) no event shall have occurred and be continuing
which constitutes an Event of Default or Unmatured Default,
or would result from the issuance of the Letter of Credit;
(c) The Financing Agreements shall be in full force and
effect and no "Event of Default" or "Unmatured Default" (as
defined therein) shall have occurred and be continuing;
(d) No "Event of Default" (as defined in the First
Mortgage Indenture) shall have occurred and be continuing;
(e) The Series G First Mortgage Bonds shall have been
duly issued to the Trustee in accordance with the
Indenture, and be outstanding, and no "Event of Default"
(as defined in the First Mortgage Indenture) shall have
occurred and be continuing; and
(f) The Account Party shall have paid all fees under or
referenced in Section 2.03 hereof, to the extent then due
and payable.
SECTION 5.03. Conditions Precedent to Initial Advances and
Conversions of Advances. The obligation of each Participating Bank to make
any Initial Advance or to Convert any Term Advance shall be subject to the
conditions precedent that, on the date of such Initial Advance or Conversion,
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (other than the last
sentence of subsection (e) and clause (ii) of subsection
(f) thereof) are true and correct on and as of the date of
such Initial Advance or Conversion, before and after giving
effect to such Initial Advance or Conversion and to the
application of the proceeds (if any) therefrom, as though
made on and as of such date; and
<PAGE>
(b) no event has occurred and is continuing which
constitutes an Event of Default.
Unless the Account Party shall have previously advised the
Agent in writing that one or more of the statements contained in subsections
(a) and (b) of this Section 5.03 is no longer true, the Account Party shall
be deemed to have represented and warranted, on and as of the date of any
Initial Advance or Conversion, that the above statements are true.
SECTION 5.04. Conditions Precedent to Term Advances. The
obligation of each Participating Bank to make any Term Advance shall be
subject to the conditions precedent that, on the date of such Term Advance
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (including the last sentence
of subsection (e) and clause (ii) of subsection (f)
thereof) are true and correct on and as of the date of such
Term Advance, before and after giving effect to such Term
Advance and to the application of the proceeds therefrom,
as though made on and as of such date; and
(b) no event has occurred and is continuing which
constitutes an Event of Default or an Unmatured Default.
Unless the Account Party shall have previously advised the Agent in writing
that one or more of the statements contained in subsections (a) and (b) of
this Section 5.04 is no longer true, the Account Party shall be deemed to
have represented and warranted, on and as of the date of any Term Advance,
that the above statements are true.
SECTION 5.05. Reliance on Certificates. The Agent, the
Issuing Bank and the Participating Banks shall be entitled to rely
conclusively upon the certificates delivered from time to time by officers of
the Account Party, NU, NUSCO and the other parties to the Loan Documents,
Related Documents and the Significant Contracts as to the names, incumbency,
authority and signatures of the respective persons named therein until such
time as the Agent may receive a replacement certificate, in form acceptable
to the Agent, from an officer of such Person identified to the Agent as
having authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such Person
thereafter authorized to act on behalf of such Person.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the
Account Party. The Account Party represents and warrants as follows:
(a) The Account Party is a corporation duly organized and
validly existing under the laws of the State of New Hampshire. The Account
Party is duly qualified to do business in, and is in good standing in, all
other jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualifications necessary.
<PAGE>
(b) The execution, delivery and performance by the Account
Party of the Rate Agreement and of each Loan Document, Related Document and
Significant Contract to which it is a party, are within the Account Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not contravene (i) the Account Party's charter or
by-laws or (ii) any law or legal or contractual restriction binding on or
affecting the Account Party; and such execution, delivery and performance do
not or will not result in or require the creation of any Lien (other than
pursuant to the Security Documents) upon or with respect to any of its
properties.
(c) All Governmental Approvals referred to in clause (i) of
the definition of "Governmental Approvals" have been duly obtained or made,
and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired, except as described in Schedule II hereto, and
except that no representation or warranty is made concerning the applicable
period of time for review, rehearing or appeal with respect to Governmental
Approvals of the Issuer in connection with the issuance of the Bonds. The
Account Party has obtained or made all Governmental Approvals referred to in
clause (ii) of the definition of "Governmental Approvals", except (i) those
which are not yet required but which are obtainable in the ordinary course of
business as and when required, (ii) those the absence of which would not
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party and (iii) those which the Account Party is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which the Account Party is contesting in good faith by
appropriate proceedings or by other appropriate means; in each case described
in the foregoing clause (iii), such attempt or contest, and any delay
resulting therefrom, is not reasonably expected to have a material adverse
effect on the financial condition, properties, prospects or operations of the
Account Party or to magnify to any significant degree any such material
adverse effect that would reasonably be expected to result from the absence
of such Governmental Approval.
(d) This Agreement, the Rate Agreement, each other Loan
Document, Related Document and each Significant Contract to which the Account
Party is a party have been duly executed and delivered by or on behalf of the
Account Party and are legal, valid and binding obligations of the Account
Party enforceable against the Account Party in accordance with their
respective terms; subject to the qualifications, however, that the
enforcement of the rights and remedies herein and therein is subject to
bankruptcy and other similar laws of general application affecting rights and
remedies of creditors, that the remedy of specific performance or of
injunctive relief is subject to the discretion of the court before which any
proceedings therefor may be brought, and that indemnification against
violations of securities and similar laws may be subject to matters of public
policy.
(e) The audited balance sheet of the Account Party as at
December 31, 1994 and the related statements of the Account Party setting
forth the results of operations, retained earnings and cash flows of the
Account Party for the fiscal year then ended, copies of which have been
furnished to each Participating Bank, fairly present in all material respects
the financial condition, results of operations, retained earnings and cash
flows of the Account Party at and for the year ended on such date, and have
been prepared in accordance with generally accepted accounting principles
consistently applied. Except as reflected in such financial statements, the
Account Party has no material non-contingent liabilities, and all contingent
<PAGE>
liabilities have been appropriately reserved. The financial projections
referred to in Section 5.01(d)(iii) hereof have been prepared in good faith
and on reasonable assumptions. Since December 31, 1994, there has been no
material adverse change in the Account Party's financial condition,
operations, properties or prospects.
(f) There is no pending or known threatened action or
proceeding (including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations) affecting the Account
Party or its properties before any court, governmental agency or arbitrator
(i) which affects or purports to affect the legality, validity or
enforceability of the Loan Documents or the Related Documents or any of them
or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially adversely
affect the financial condition, properties, prospects or operations of the
Account Party; except, for purposes of clause (ii) only, such as is described
in the Account Party's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 or in Schedule II hereto.
(g) All insurance required by Section 7.01(c) hereof is in
full force and effect.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which would
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party, except as disclosed to and consented by the
Majority Lenders in writing. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of the Account Party (Form 5500
Series), if any, there has been no material adverse change in the funding
status of the ERISA Plans referred to therein and no "prohibited transaction"
has occurred with respect thereto, except as described in the Account Party's
Annual Report on Form 10-K for the year ended December 31, 1994. Neither the
Account Party nor any of its ERISA Affiliates has incurred nor reasonably
expects to incur any material withdrawal liability under ERISA to any ERISA
Multiemployer Plan, except as disclosed to and consented by the Majority
Lenders in writing.
(i) The Major Electric Generating Plants are on land in
which the Account Party owns a full or an undivided fee interest subject only
to Liens permitted by Section 7.02(a) hereof, which do not materially impair
the usefulness to the Account Party of such properties; the electric
transmission and distribution lines of the Account Party in the main are
located in New Hampshire and on land owned in fee by the Account Party or
over which the Account Party has easements, or are in or over public highways
or public waters pursuant to adequate statutory or regulatory authority, and
any defects in the title to such transmission and distribution lands or
easements are in the main curable by the exercise of the Account Party's
right of eminent domain upon a finding that such eminent domain proceedings
are necessary to meet the reasonable requirements of service to the public;
the Account Party enjoys peaceful and undisturbed possession under all of the
leases under which it is operating, none of which contains any unusual or
burdensome provision which will materially affect or impair the operation of
the Account Party; and the Security Documents will create valid Liens in the
Collateral, subject only to Liens permitted by Section 7.02(a) hereof, and
all filings and other actions necessary to perfect and protect such security
interests (to the extent such security interests may be perfected or
protected by filing) have been taken; provided, however, that no
<PAGE>
representation is made as to any Lien purported to be created in favor of the
Trustee with respect to any interest of the Issuer in the Indenture.
(j) No material part of the properties, business or
operations of the Account Party are materially adversely affected by any
fire, explosion, accident, strike, lockout or other labor disputes, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (except for any such circumstance, if any, which is covered by
insurance which coverage has been confirmed and not disputed by the relevant
insurer or by fully-funded self-insurance programs).
(k) The Account Party has filed all tax returns (Federal,
state and local) required to be filed and paid taxes shown thereon to be due,
including interest and penalties, or, to the extent the Account Party is
contesting in good faith an assertion of liability based on such returns, has
provided adequate reserves in accordance with generally accepted accounting
principles for payment thereof.
(l) No exhibit, schedule, report or other written
information provided by the Account Party or its agents to the Agent, the
Issuing Bank or the Participating Banks in connection with the negotiation,
execution and closing of this Agreement or the issuance of the Bonds
(including, without limitation, the Information Memorandum and the Official
Statements) knowingly contained when made any material misstatement of fact
or knowingly omitted to state any material fact necessary to make the
statements contained therein not misleading in light of the circumstances
under which they were made.
(m) No event has occurred and is continuing which
constitutes a material default under the Rate Agreement or any Significant
Contract.
(n) No proceeds of any Advance will be used (i) to acquire
any equity security of a class which is registered pursuant to Section 12 of
the Securities Exchange Act of 1934 or (ii) to buy or carry any margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System) or to extend credit to others for such purpose. The
Account Party (X) is not an "investment company" within the meaning ascribed
to that term in the Investment Company Act of 1940 or (Y) is not engaged in
the business of extending credit for the purpose of buying or carrying margin
stock.
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
SECTION 7.01. Affirmative Covenants. So long as any
amounts shall remain available to be drawn under the Letter of Credit or any
Advance or other amounts shall remain unpaid hereunder or any Participating
Bank shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 3.02 and Section 6.01(n) hereof.
<PAGE>
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property except to
the extent the Account Party is contesting the same in good faith by
appropriate proceedings and has set aside adequate reserves for the payment
thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering the Account Party and its properties in effect at all times in such
amounts and covering such risks as may be required by law and in addition as
is usually carried by companies engaged in similar businesses and owning
similar properties.
(d) Preservation of Existence, Etc. Preserve and maintain
its corporate existence, material rights (statutory and otherwise) and
franchises except as otherwise expressly provided in the Plan or in the
Pledge Agreement, the PSNH Mortgage, or the Collateral Agency Agreement
referred to in the Financing Agreements.
(e) Compliance with Laws, Etc. Comply in all material
respects with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including without limitation any such
laws, rules, regulations and orders relating to utilities, zoning,
environmental protection, use and disposal of Hazardous Substances, land use,
construction and building restrictions, and employee safety and health
matters relating to business operations, except to the extent (i) that the
Account Party is contesting the same in good faith by appropriate proceedings
or (ii) that any such non-compliance, and the enforcement or correction
thereof, would not materially adversely affect the financial condition,
properties, prospects or operations of the Account Party as a whole.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice, permit the Issuing Bank and its agents and
representatives to examine and make copies of and abstracts from the records
and books of account of, and the properties of, the Account Party and to
discuss the affairs, finances and accounts of the Account Party with the
Account Party and of its officers, directors and accountants.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all financial
transactions of the Account Party and the assets and business of the Account
Party, in accordance with good accounting practices consistently applied.
(h) Collection of Accounts Receivable. Promptly bill, and
diligently pursue collection of, in accordance with customary utility
practices, all accounts receivable owing to the Account Party and all other
amounts that may from time to time be owing to the Account Party for services
rendered or goods sold.
(i) Common Equity to Total Capitalization Ratio. Maintain
at all times a ratio of Common Equity to Total Capitalization of not less
than the respective ratio specified below:
Period Ratio
Closing Date through and
including June 30, 1996 0.270:1
<PAGE>
July 1, 1996 through and
including June 30, 1997 0.285:1
July 1, 1997 through and
including the Termination
Date 0.300:1
(j) Maintenance of Properties, Etc. (i) As to properties
of the type described in Section 6.01(i) hereof, maintain title of the
quality described therein; and (ii) preserve, maintain, develop, and operate
in substantial conformity with all laws, material contractual obligations and
prudent practices prevailing in the industry, all of its properties which are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except to the extent such non-
conformity would not materially adversely affect the financial condition,
properties, prospects or operations of the Account Party as a whole.
(k) Governmental Approvals. Duly obtain on or prior to
such date as the same may become legally required, and thereafter maintain in
effect at all times, all Governmental Approvals on its part to be obtained,
except those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of the Account Party
as a whole.
(l) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or that any Participating Bank through the Issuing Bank may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Security Documents.
(m) Related Documents. Perform and comply in all material
respects with each of the provisions of each Related Document to which it is
a party.
SECTION 7.02. Negative Covenants. So long as any amount
shall remain available to be drawn under the Letter of Credit or any Advance
or other amounts shall remain unpaid hereunder or any Participating Bank
shall have any Commitment, the Account Party will not, without the written
consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist
any lien, security interest, or other charge or encumbrance (including the
lien or retained security title of a conditional vendor) of any kind, or any
other type of preferential arrangement the intent or effect of which is to
assure a creditor against loss or to prefer one creditor over another
creditor upon or with respect to any of its properties of any character (any
of the foregoing being referred to herein as a "Lien") whether now owned or
hereafter acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction a financing statement which names the Account Party as debtor,
sign any security agreement authorizing any secured party thereunder to file
such financing statement, or assign accounts, excluding, however, from the
operation of the foregoing restrictions the Liens created or perfected under
or in connection with the Pledge Agreement, the Pledge Agreement (as defined
in the Series D Reimbursement Agreement), the Financing Agreements, the Notes
and the Collateral Agency Agreement referred to in the Financing Agreements,
the PSNH Mortgage, and the following, whether now existing or hereafter
created or perfected:
<PAGE>
(i) Liens on Property specifically reserved, excepted
and excluded by subparagraphs (c) through (g) and
subparagraph (j) following the Granting Clauses section of
the First Mortgage Indenture;
(ii)Permitted Encumbrances (as defined in the PSNH
Mortgage) on the Indenture Assets (except Liens referred to
in paragraphs (s) and (t) of Schedule C to the PSNH
Mortgage hereafter directly created by the Account Party,
provided, however, that the Account Party may create any
such Lien with the consent of the Majority Lenders (as
defined in the Financing Agreements) if such Lien would not
materially adversely affect the security granted under the
PSNH Mortgage, as determined by the Majority Lenders (as
defined in the Financing Agreements) in their reasonable
discretion), provided that in no event shall the
outstanding principal amount of the First Mortgage Bonds
exceed at any time the First Mortgage Bond Amount (as
defined in the Financing Agreements); and
(iii) Liens referred to in paragraphs (b) through
(t) of Schedule C to the PSNH Mortgage on realty or
personalty that is subject to the Lien of the First
Mortgage Indenture but is not also subject to the Lien of
the PSNH Mortgage; provided, however, that the aggregate
principal amount of the Debt at any one time outstanding
secured by purchase money Liens permitted by paragraph (m)
of Schedule C to the PSNH Mortgage, including Liens of a
conditional vendor that are the functional equivalent of
purchase money liens, shall not exceed $20,000,000.
(b) Debt. Create, incur or assume any Debt unless, after
giving effect thereto, (i) no Event of Default or Unmatured Default shall
have occurred and be continuing on the date of such creation, incurrence or
assumption and (ii) the Account Party shall have determined that, on the
basis of the assumptions and forecasts set forth in the most recent operating
budget/forecast of operations delivered pursuant to Section 7.03(iv) hereof
(which the Account Party continues to believe to be reasonable), the Account
Party will continue to be in compliance at all times with the provisions of
Section 7.01(i) hereof. The Account Party will furnish evidence of its
compliance with this subsection (b) for each fiscal quarter pursuant to
Section 7.03(ii) hereof.
(c) Mergers, Etc. Merge with or into or consolidate with
or into, or acquire all or substantially all of the assets of, any Person.
(d) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of all or any substantial part of its assets (other than
sales, transfers or other dispositions of receivables), whether in a single
transaction or series of transactions during any consecutive 12-month period,
except for sales, leases, transfers or other dispositions in the ordinary
course of the Account Party's business in accordance with ordinary and
customary terms and conditions. For purposes of this subsection (d), any
transaction or series of transactions during any consecutive 12-month period
shall be deemed to involve a "substantial part" of the Account Party's assets
if, in the aggregate, (A) the value of such assets equals or exceeds 10% of
the total assets of the Account Party reflected in the financial statements
<PAGE>
of the Account Party delivered pursuant to Section 7.03(ii) or 7.03(iii)
hereof in respect of the fiscal quarter or year ending on or immediately
prior to the commencement of such 12-month period or (B) for the four
calendar quarters ending on or immediately prior to commencement of such 12-
month period, the gross revenue derived by the Account Party from such assets
shall equal or exceed 10% of the total gross revenue of the Account Party.
(e) Restricted Payments. Declare or pay any dividend, or
make any payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any share of any class of capital
stock of the Account Party (other than stock splits and dividends payable
solely in equity securities of the Account Party), or purchase, redeem,
retire, or otherwise acquire for value any shares of any class of capital
stock of the Account Party or any warrants, rights, or options to acquire any
such Debt or shares, now or hereafter outstanding, or make any distribution
of assets to any of its shareholders (any such transaction being a
"Restricted Payment") except for Restricted Payments made in compliance with
the following conditions:
(i) The Account Party may not make any Restricted
Payments if an Event of Default or Unmatured Default shall
have occurred and be continuing.
(ii)The Account Party may not make any Restricted
Payments during any fiscal quarter if, after giving effect
thereto (and to the other computations set forth below in
this clause (ii)), the Account Party would not be in full
compliance with Section 7.01(i) hereof. For purposes of
determining compliance with Section 7.01(i) under this
clause (ii), computations under Section 7.01(i) shall be
made as of the date of such Restricted Payment, except
that, retained earnings shall be determined as of the last
day of the immediately preceding fiscal quarter (adjusted
for all Restricted Payments made after the last day of such
preceding fiscal quarter).
(iii) The Account Party may not make any Restricted
Payments unless, after giving effect thereto, the Account
Party shall have determined that, on the basis of the
assumptions and forecasts set forth in the most recent
operating budget/forecast of operations delivered pursuant
to Section 7.03(iv) hereof (which the Account Party
continues to believe to be reasonable) the Account Party
will continue to be in compliance at all times with the
provisions of Section 7.01(i) hereof.
Notwithstanding anything contrary contained in this Section 7.02(e), the
Account Party may declare and pay regularly scheduled quarterly dividends on
the Preferred Stock and declare and pay into escrow, prior to the date
required to be paid to holders of Preferred Stock, with respect to the fifth
and sixth dividend periods following May 16, 1991 all or any part of the
dividends scheduled to accrue during such periods, if, immediately prior to
and after giving effect to any such payment, no Event of Default or Unmatured
Default shall have occurred and be continuing.
(f) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate to terminate, any ERISA Plan so as to result in any material
(in the opinion of the Majority Lenders) liability of the Account Party to
<PAGE>
the PBGC, or (ii) permit to exist any occurrence of any Reportable Event (as
defined in Title IV of ERISA), or any other event or condition, which
presents a material (in the opinion of the Majority Lenders) risk of such a
termination by the PBGC of any ERISA Plan and such a material liability to
the Account Party.
(g) Change in Nature of Business. Engage in any material
business activity other than those established and engaged in on the date
hereof.
(h) Ownership in Seabrook and Nuclear Plants. Acquire,
directly or indirectly, any ownership interest or any additional ownership
interest of any kind in any nuclear-powered electric generating plant.
(i) Subsidiaries. Create or suffer to exist any active
subsidiaries other than Properties, Inc., a New Hampshire corporation; or
permit any material assets or business to be maintained at or conducted by
any subsidiary except for the assets owned by Properties, Inc. not exceeding
$20,000,000.
SECTION 7.03. Reporting Obligations. So long as any
amount shall remain available to be drawn under the Letter of Credit or any
Advance or other amounts shall remain unpaid hereunder or any Participating
Bank shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing, furnish to the Agent in
sufficient copies for the Issuing Bank and each Participating Bank, the
following:
(i) as soon as possible and in any event within
five (5) days after the occurrence of each Event of
Default or Unmatured Default continuing on the date of
such statement, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the
Account Party setting forth details of such Event of
Default or Unmatured Default and the action which the
Account Party proposes to take with respect thereto;
(ii)as soon as available and in any event within
fifty (50) days after the end of each of the first
three quarters of each fiscal year of the Account
Party, (A) if and so long as the Account Party is
required to submit to the Securities and Exchange
Commission a report on Form 10-Q, a copy of the Account
Party's report on Form 10-Q submitted to the Securities
and Exchange Commission with respect to such quarter
and (B) if the Account Party ceases to be required to
submit such report, a balance sheet of the Account
Party as of the end of such quarter and statements of
income and retained earnings and of cash flows of the
Account Party for the period commencing at the end of
the previous fiscal year and ending with the end of
such quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by
the Chief Financial Officer, Treasurer or Assistant
Treasurer of the Account Party as having been prepared
in accordance with generally accepted accounting
principles consistent with those applied in the
preparation of the financial statements referred to in
<PAGE>
Section 6.01(e) hereof, in each such case, delivered
together with a certificate of said officer (x) stating
that no Event of Default or Unmatured Default has
occurred and is continuing or, if an Event of Default
or Unmatured Default has occurred and is continuing, a
statement as to the nature thereof and the action which
the Account Party proposes to take with respect
thereto, (y) demonstrating compliance with Section
7.01(i) hereof for and as of the end of such fiscal
quarter and compliance with Sections 7.02(b) and (e)
hereof, as of the dates on which any Debt was created,
incurred or assumed (using the Account Party's most
recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the
definition of "Debt") or any Restricted Payment was
made during such quarter, and (z) demonstrating, after
giving effect to the incurrence of any Debt created,
incurred or assumed during such fiscal quarter (using
the Account Party's most recent annual actuarial
determinations in the computation of Debt referred to
in clause (ix) in the definition of "Debt") and after
giving effect to any Restricted Payment made during
such fiscal quarter, compliance with Section 7.01(i)
hereof for the remainder of the fiscal year of the
Account Party based on the operating budget/forecast of
operations delivered pursuant to Section 7.03(iv)
hereof for such fiscal year, such demonstrations to be
in a schedule (in form satisfactory to the Majority
Lenders) which sets forth the computations used by the
Account Party in determining such compliance;
(iii)as soon as available and in any event within
105 days after the end of each fiscal year of the
Account Party, (A) if and so long as the Account Party
is required to submit to the Securities and Exchange
Commission a report on Form 10-K, a copy of the Account
Party's report on Form 10-K submitted to the Securities
and Exchange Commission with respect to such year and
(B) if the Account Party ceases to be required to
submit such report, a copy of the annual audit report
for such year for the Account Party including therein a
balance sheet of the Account Party as of the end of
such fiscal year and statements of income and retained
earnings and of cash flows of the Account Party for
such fiscal year, in each case certified by a
nationally-recognized independent public accountant, in
each such case delivered together with a certificate of
the Chief Financial Officer, Treasurer or Assistant
Treasurer (x) stating that the financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of financial statements referred to in
Section 6.01(e) hereof, and that no Event of Default or
Unmatured Default has occurred and is continuing, or if
an Event of Default or Unmatured Default has occurred
and is continuing, stating the nature thereof and the
action which the Account Party proposes to take with
respect thereto and (y) demonstrating compliance with
<PAGE>
Section 7.01(i) hereof for and as of the end of such
fiscal year and compliance with Sections 7.02(b) and
(e) hereof, as of the dates on which any Debt was
created, incurred or assumed (using the Account Party's
most recent annual actuarial determinations in the
computation of Debt referred to in clause (ix) in the
definition of "Debt") or any Restricted Payment was
made during the last fiscal quarter of the Account
Party, such demonstrations to be in a schedule (in form
satisfactory to the Majority Lenders) which sets forth
the computations used by the Account Party in
determining such compliance.
(iv)as soon as available and in any event before
March 31 of each fiscal year, a copy of an operating
budget/forecast of operations of the Account Party as
approved by the Board of Directors of the Account Party
in form satisfactory to the Participating Banks for
such fiscal year of the Account Party, together with a
certificate of the Chief Financial Officer, Treasurer
or Assistant Treasurer of the Account Party stating
that such budget/forecast was prepared in good faith
and on reasonable assumptions;
(v) as soon as available and in any event no later
than the New Hampshire Public Utilities Commission
shall have received the Account Party's annual
submission, if any, relating to the "return on equity
collar" referred to in the Rate Agreement, a copy of
such annual submission of the Account Party;
(vi)as soon as possible and in any event
(A) within 30 days after the Account Party knows or has
reason to know that any ERISA Plan Termination Event
described in clause (i) of the definition of ERISA Plan
Termination Event with respect to any ERISA Plan or
ERISA Multiemployer Plan has occurred and (B) within 10
days after the Account Party knows or has reason to
know that any other ERISA Plan Termination Event with
respect to any ERISA Plan or ERISA Multiemployer Plan
has occurred, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the
Account Party describing such ERISA Plan Termination
Event and the action, if any, which the Account Party
proposes to take with respect thereto;
(vii)promptly after receipt thereof by the Account
Party or any of its ERISA Affiliates from the PBGC,
copies of each notice received by the Account Party or
any such ERISA Affiliate of the PBGC's intention to
terminate any ERISA Plan or ERISA Multiemployer Plan or
to have a trustee appointed to administer any ERISA
Plan or ERISA Multiemployer Plan;
(viii)promptly and in any event within 30 days
after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series)
<PAGE>
with respect to each ERISA Plan (if any) to which the
Account Party is a contributing employer;
(ix) promptly after receipt thereof by the Account
Party or any of its ERISA Affiliates from an ERISA
Multiemployer Plan sponsor, a copy of each notice
received by the Account Party or any of its ERISA
Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount
of at least $10,000,000 pursuant to Section 4202 of
ERISA in respect of which the Account Party may be
liable;
(x) promptly after the Account Party becomes aware
of the occurrence thereof, notice of all actions,
suits, proceedings or other events (A) of the type
described in Section 6.01(f), or (B) which purport to
affect the legality, validity or enforceability of any
of the Loan Documents or Significant Contracts;
(xi)promptly after the sending or filing thereof,
copies of all such proxy statements, financial
statements, and reports which the Account Party sends
to its public security holders (if any) or files with,
and copies of all regular, periodic and special reports
and all registration statements and periodic or special
reports, if any, which the Account Party files with,
the Securities and Exchange Commission or any
governmental authority which may be substituted
therefor, or with any national securities exchange;
(xii)promptly after receipt thereof, any assertion
of the character described in Section 8.01(h) hereof
and the action the Account Party proposes to take with
respect thereto;
(xiii)promptly after knowledge of any material
default under the Rate Agreement or any Significant
Contract, notice of such default and the action the
Account Party proposes to take with respect thereto;
(xiv)promptly after knowledge of any amendment,
modification, or other change to the Rate Agreement or
any Significant Contract or to any Governmental
Approval affecting the Rate Agreement, notice of such
amendment, modification or other change, it being
understood that for purposes of this clause (xiv) any
filing by the Account Party in the ordinary course of
the Account Party's business with, or order issued or
action taken by, a governmental authority or regulatory
body after May 16, 1991 to implement the terms of the
Rate Agreement shall not be considered an amendment,
modification or change to a Governmental Approval
affecting the Rate Agreement; and
(xv)promptly after requested, such other
information respecting the financial condition,
operations, properties, prospects or otherwise, of the
<PAGE>
Account Party as the Issuing Bank or Majority Lenders
may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events
shall each constitute an "Event of Default" if the same shall occur and be
continuing after the grace period and notice requirement (if any) applicable
thereto:
(a) The Account Party shall fail to pay any interest on any
Advance or pursuant to Section 4.02 hereof within two days after the same
becomes due; the Account Party shall fail to reimburse the Issuing Bank for
any Interest Drawing (as defined in the Letter of Credit) within two days
after such reimbursement becomes due; or the Account Party shall fail to make
any other payment required to be made pursuant to Article II or Article III
hereof when due; or
(b) Any representation or warranty made by the Account
Party or NU (or any of their respective officers or agents) in this Agreement
or the Pledge Agreement or in any certificate or other writing delivered
pursuant to this Agreement shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Account Party shall fail to perform or observe any
term or covenant on its part to be performed or observed contained in
Sections 7.01(a), (d) or (i), Section 7.02 or Section 7.03(i) hereof; or
(d) The Account Party shall fail to perform or observe any
other term or covenant on its part to be performed or observed contained in
this Agreement or the Pledge Agreement and such failure shall remain
unremedied, after written notice thereof shall have been given to the Account
Party by the Agent, the Issuing Bank or any Participating Bank, for a period
of 30 days; or
(e) The Account Party shall fail to pay any of its Debt
when due (including any interest or premium thereon but excluding Debt
arising hereunder or under or in connection with the Financing Agreements and
excluding other Debt aggregating in no event more than $10,000,000 in
principal amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in any
agreement or instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other event, shall
occur and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt (including, for purposes of this clause and the next succeeding
clause of this Section 8.01(e), the Debt arising under or in connection with
the Financing Agreements) shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment or as a result of the Account Party's exercise of a prepayment
option) prior to the stated maturity thereof; unless in each such case the
obligee under or holder of such Debt or the trustee with respect to such Debt
shall have waived in writing such circumstance without consideration having
<PAGE>
been paid by the Account Party so that such circumstance is no longer
continuing; or
(f) The Account Party shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Account Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of its debts under any law relating to bankruptcy, insolvency,or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of a
proceeding instituted against the Account Party, either the Account Party
shall consent thereto or such proceeding shall remain undismissed or unstayed
for a period of 90 days or any of the actions sought in such proceeding
(including without limitation the entry of an order for relief against the
Account Party or the appointment of a receiver, trustee, custodian or other
similar official for the Account Party or any of its property) shall occur;
or the Account Party shall take any corporate or other action to authorize
any of the actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Account Party or its
properties and either enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and shall not have been stayed or
there shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) Any material provision of any Loan Document or any
Related Document shall for any reason other than the express terms thereof or
the exercise of any right or option expressly contained therein cease to be
valid and binding on any party thereto; or any party thereto other than the
Participating Banks shall so assert in writing, provided that in the case of
any party other than the Account Party making such assertion in respect of
any Related Document, such assertion shall not in and of itself constitute an
Event of Default hereunder until (i) such asserting party shall cease to
perform under and in compliance with such Related Document, (ii) the Account
Party shall fail to diligently prosecute, by appropriate action or
proceedings, a rescission of such assertion or a binding determination as to
the merits thereof or (iii) such a binding determination shall have been made
in favor of such asserting party's position; or
(i) The Security Documents shall for any reason, except to
the extent permitted by the terms thereof, fail or cease to create valid and
perfected Liens (to the extent purported to be granted by such documents and
subject to the exceptions permitted thereunder) in any of the Collateral
(other than Liens in favor of the Trustee with respect to the interests of
the Issuer under the Indenture), provided, that such failure or cessation
relating to any non-material portion of such Collateral shall not constitute
an Event of Default hereunder unless the same shall not have been corrected
within 30 days after the Account Party becomes aware thereof; or
(j) The Account Party shall not have in full force and
effect any or all insurance required under Section 7.01(c) hereof or there
shall be incurred any uninsured damage, loss or destruction of or to the
Account Party's properties in an amount not covered by insurance (including
<PAGE>
fully-funded self-insurance programs) which the Majority Lenders consider to
be material; or
(k) NU shall cease to own all of the outstanding common
stock of the Account Party, free and clear of any Liens; or
(l) An event of default (as defined therein) shall have
occurred and be continuing under the Indenture or the First Mortgage
Indenture.
(m) An event of default (as defined therein) shall have
occurred and be continuing under the Series D Reimbursement Agreement.
SECTION 8.02. Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default, then, and in
any such event, the Agent with the concurrence of the Issuing Bank may, and
upon the direction of the Majority Lenders the Agent shall (i) if the Letter
of Credit shall not have been issued, instruct the Issuing Bank to (whereupon
the Issuing Bank shall) by notice to the Account Party declare its commitment
to issue the Letter of Credit to be terminated, whereupon the same shall
forthwith terminate, (ii) if the Letter of Credit shall have been issued,
instruct the Issuing Bank to (whereupon the Issuing Bank shall) furnish to
the Trustee and the Paying Agent written notice of such Event of Default in
accordance with Section 6.01(a)(iv) of the Indenture and of the Issuing
Bank's determination to terminate the Letter of Credit on the fifth business
day (as defined in the Indenture) following the Trustee's and Paying Agent's
receipt of such notice, (iii) if the Letter of Credit shall have been issued,
instruct the Issuing Bank to (whereupon the Issuing Bank shall) furnish to
the Trustee and the Paying Agent written notice that the Interest Component
will not be reinstated in the amount of one or more Interest Drawings, all as
provided in the Letter of Credit; (iv) declare the Advances and all other
principal amounts outstanding hereunder, all interest thereon and all other
amounts payable hereunder to be forthwith due and payable, whereupon the
Advances and all other principal amounts outstanding hereunder, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Account Party, and (v)
instruct the Issuing Bank to (whereupon the Issuing Bank shall) exercise all
the rights and remedies provided herein and under and in respect of the
Security Documents; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Account Party under
the Federal Bankruptcy Code, (A) the commitment of the Issuing Bank to issue
the Letter of Credit, the Commitments and the obligations of the
Participating Banks to make Advances shall automatically be terminated, and
(B) the Advances and all other principal amounts outstanding hereunder, all
interest accrued and unpaid thereon and all other amounts payable hereunder
shall automatically become due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived
by the Account Party.
SECTION 8.03. Issuing Bank to Notify First Mortgage
Trustee, Others. The Issuing Bank shall promptly notify the First Mortgage
Trustee by telephone, confirmed in writing, of the occurrence of any Event of
Default. In addition, the Issuing Bank shall furnish to the Agent, the
Account Party, the Paying Agent and the Issuer a copy of (a) any notice
furnished to the First Mortgage Trustee pursuant to the preceding sentence
and (b) any notice delivered to the Trustee pursuant to clause (ii) or clause
(iii) of Section 8.02. Notwithstanding the foregoing, no failure of the
<PAGE>
Issuing Bank to give any notice (or copy of a notice) as contemplated by this
Section 8.03 shall limit or impair any rights of the Issuing Bank, the Agent
or any Participating Bank or the exercise of any remedy hereunder, nor shall
the Issuing Bank, the Agent or any Participating Bank incur any liability as
a result of any such failure.
ARTICLE IX
THE AGENT, THE PARTICIPATING
BANKS AND THE ISSUING BANK
SECTION 9.01. Authorization of Agent; Actions of Agent and
Issuing Bank. The Issuing Bank and each Participating Bank hereby appoint
and authorize the Agent to take such action as agent on their behalf and to
exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; provided, however, that neither the Agent nor the Issuing Bank shall
be required to take any action which exposes the Agent or the Issuing Bank to
personal liability or which is contrary to this Agreement or applicable law.
As to any matters not expressly provided for by any Related Document
(including, without limitation, enforcement or collection thereof), neither
the Agent nor the Issuing Bank shall be required to exercise any discretion
or take any action. The Agent agrees to deliver promptly (i) to the Issuing
Bank and each Participating Bank copies of each notice delivered to it by the
Account Party and (ii) to each Participating Bank copies of each notice
delivered to it by the Issuing Bank, in each case pursuant to the terms of
this Agreement.
SECTION 9.02. Reliance, Etc. Neither the Agent, the
Issuing Bank, nor any of their directors, officers, agents or employees shall
be liable for any action taken or omitted to be taken by it or them under or
in connection with this Agreement or any Related Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction. Without limitation of the generality of the
foregoing, each of the Agent and the Issuing Bank (i) may consult with legal
counsel (including counsel for the Account Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Participating Bank and shall not be responsible to any
Participating Bank for any statements, warranties or representations made in
or in connection with this Agreement or any Related Document; (iii) shall not
have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any Related
Document on the part of the Account Party to be performed or observed, or to
inspect any property (including the books and records) of the Account Party;
(iv) shall not be responsible to any Participating Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Related Document or any other instrument or
document furnished pursuant hereto and thereto; and (v) shall incur no
liability under or in respect of this Agreement or any Related Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex), including, without limitation,
any thereof from time to time purporting to be from the Trustee, believed by
it to be genuine and signed or sent by the proper party or parties.
<PAGE>
SECTION 9.03. The Agent, the Issuing Bank and Affiliates.
The Agent and the Issuing Bank shall have the same rights and powers under
this Agreement as any other Participating Bank and may exercise (or omit from
exercising) the same as though they were not the Agent and the Issuing Bank,
respectively, and the term "Participating Bank" shall, unless otherwise
expressly indicated, include Swiss Bank in its individual capacity. The
Agent, the Issuing Bank and their respective Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with, the Account Party, any of its subsidiaries and
any Person who may do business with or own securities of the Account Party or
any such subsidiary, all as if Swiss Bank was not the Agent or the Issuing
Bank, and without any duty to account therefor to the Participating Banks.
SECTION 9.04. Participating Bank Credit Decision. Each of
the Issuing Bank and each Participating Bank acknowledges that it has,
independently and without reliance upon the Arrangers, the Agent, the Issuing
Bank or any other Participating Bank and based on the financial information
referred to in Section 6.01(e) hereof and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Issuing Bank and each
Participating Bank also acknowledges that it will, independently and without
reliance upon the Arrangers, the Agent, the Issuing Bank or any other
Participating Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Participating Banks
agree to indemnify the Arrangers, the Agent and the Issuing Bank (to the
extent not reimbursed by the Account Party), ratably according to their
respective Participation Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Arrangers, the
Agent or the Issuing Bank in any way relating to or arising out of this
Agreement or any action taken or omitted by the Arrangers, the Agent or the
Issuing Bank under or in connection with this Agreement, provided that no
Participating Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Arrangers', the Agent's or the
Issuing Bank's (as the case may be) gross negligence or willful misconduct.
Without limitation of the foregoing, each Participating Bank agrees to
reimburse the Arrangers, the Agent and the Issuing Bank promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Arrangers, the Agent and the Issuing Bank in connection with
the preparation, execution, delivery, administration, modification,
amendment, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement to the extent that the Arrangers, the
Agent and the Issuing Bank (as the case may be) are entitled to reimbursement
for such expenses pursuant to Section 10.04 hereof but are not reimbursed for
such expenses by the Account Party.
SECTION 9.06. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Issuing Bank, the
Participating Banks and the Account Party, with any such resignation to
become effective only upon the appointment of a successor Agent pursuant to
this Section 9.06. Upon any such resignation, the Issuing Bank shall have
the right to appoint a successor Agent, which shall be another commercial
<PAGE>
bank or trust company reasonably acceptable to the Account Party, organized
or licensed under the laws of the United States, or of any State thereof.
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent and the execution and delivery by the Account Party and the successor
Agent of an agreement relating to the fees, if any, to be paid to the
successor Agent in connection with its acting as Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9.07. Issuing Bank. (a) All notices received by
the Issuing Bank pursuant to this Agreement or any Related Document (other
than the Letter of Credit) shall be promptly delivered to the Agent for
distribution to the Participating Banks.
(b) Except to the extent permitted by Section 2.06, the
Issuing Bank shall not amend or waive any provision or consent to the
amendment or waiver of any Related Document without the written consent of
the Majority Lenders. Notwithstanding the foregoing, each Participating
Bank, by its execution and delivery of this Agreement, authorizes and directs
the Issuing Bank to execute and deliver the Second Supplement, dated as of
May 1, 1995, to the Original Indenture.
(c) Upon receipt by the Issuing Bank from time to time of
any amount pursuant to the terms of any Related Document (other than pursuant
to the terms of this Agreement), the Issuing Bank shall promptly deliver to
the Agent such amount.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Pledge Agreement, nor consent to any
departure by the Account Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by the
Issuing Bank and all the Participating Banks, do any of the following:
(a) waive, modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitments of the Participating Banks that may be
maintained hereunder or subject the Participating Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Advances, any
amount reimbursable on demand pursuant to Section 3.01, or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances, such reimbursable amounts or any
fees or other amounts payable hereunder (other than fees payable to the
Issuing Bank or the Agent pursuant to Section 2.03(b) or (c) hereof),
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Participating Banks which
shall be required for the Participating Banks or any of them to take any
action hereunder, (f) amend this Agreement or the Pledge Agreement in a
manner intended to prefer one or more Participating Banks over any other
<PAGE>
Participating Banks, (g) amend this Section 10.01, or (h) release any of the
Collateral otherwise than in accordance with any provisions for such release
contained in the Security Documents, or change any provision of any Security
Document providing for the release of all or substantially all of the
Collateral; and provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Bank or the Agent in
addition to the Participating Banks required above to take such action,
affect the rights or duties of the Issuing Bank or the Agent, as the case may
be, under this Agreement or the Pledge Agreement.
SECTION 10.02. Notices, Etc. All notices and other
communications provided for hereunder and under the other Loan Documents
shall be in writing (including telegraphic, telex, telecopy or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered:
(i) if to the Account Party, to it in care of NUSCO at
NUSCO's address at 107 Selden Street, Berlin, Connecticut
06037 (telecopy: (203) 665-5457), Attention: Manager,
Project and Short Term Finance;
(ii) if to the Issuing Bank or the Agent, to it at its
address at 222 Broadway, 2nd Floor, New York, New York
10038, Attention: Ms. Laura Paradiso, Client Services
(telephone: (212) 574-4119, telecopy: (212) 574-3180), with
a copy to: Utilities Group, Attention: Darryl Monasebian
(telephone: (212) 574-3103, telecopy: (212) 574-4395);
(iii) if to any Participating Bank, to it at its
address set forth on the signature pages hereof or in the
Participation Assignment pursuant to which it became a
Participating Bank; or
as to each party other than any Participating Bank, at such other address as
shall be designated by such party in a written notice to the other parties,
and, as to any Participating Bank, at such other address as shall be
designated by such Participating Bank in a written notice to the Account
Party and the Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled, be effective five days after when
deposited in the mails, or when delivered to the telegraph company, confirmed
by telex answerback, telecopied or delivered to the cable company,
respectively, except that notices and communications to the Agent or the
Issuing Bank pursuant to Article II, III or IV shall not be effective until
received by the Agent or the Issuing Bank, as the case may be.
SECTION 10.03. No Waiver of Remedies. No failure on the
part of any Participating Bank or the Issuing Bank to exercise, and no delay
in exercising, any right hereunder or under any Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Account Party agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses), of
(i) the Arrangers, the Agent and the Issuing Bank in connection with the
preparation, negotiation, execution and delivery of the Loan Documents and
<PAGE>
the administration of the Loan Documents, the care and custody of any and all
collateral, and any proposed modification, amendment, or consent relating
thereto; and (ii) the Arrangers, the Agent, the Issuing Bank and each
Participating Bank in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement or any other
Loan Document.
(b) The Account Party hereby agrees to indemnify and hold
the Arrangers, the Agent, the Issuing Bank and each Participating Bank and
their respective officers, directors, employees, professional advisors and
affiliates (each, an "Indemnified Person") harmless from and against any and
all claims, damages, losses, liabilities, costs or expenses (including
reasonable attorney's fees and expenses, whether or not such Indemnified
Person is named as a party to any proceeding or investigation or is otherwise
subjected to judicial or legal process arising from any such proceeding or
investigation) which any of them may incur or which may be claimed against
any of them by any person or entity (except to the extent such claims,
damages, losses, liabilities, costs or expenses arise from the gross
negligence or willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or the
Related Documents or any transaction contemplated thereby,
or the use by the Account Party of the proceeds of any
Advance or the use by the Paying Agent or the Trustee of
the proceeds of any drawing under the Letter of Credit;
(ii)in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of the Account
Party or any of its Affiliates or (B) by or on behalf of
the Account Party or any of its Affiliates at any time and
in any place;
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority
by reason of the execution and delivery of any of the Loan
Documents;
(iv)by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to make
payment under, the Letter of Credit; provided, however,
that the Account Party shall not be required to indemnify
the Arrangers, the Agent, the Issuing Bank or any
Participating Bank pursuant to this Section for any claims,
damages, losses, liabilities, costs or expenses to the
extent caused by (A) the Issuing Bank's willful misconduct
or gross negligence, as determined by a court of competent
jurisdiction, in determining whether documents presented
under the Letter of Credit are genuine or comply with the
terms of the Letter of Credit or (B) the Issuing Bank's
willful or grossly negligent failure, as determined by a
court of competent jurisdiction, to make lawful payment
under the Letter of Credit after the presentation to it by
the Paying Agent of a draft and certificate strictly
complying with the terms and conditions of the Letter of
Credit; or
<PAGE>
(v) by reason of any inaccuracy or alleged inaccuracy
in any material respect, or any untrue statement or alleged
untrue statement of any material fact, contained in any
Official Statement, except to the extent contained in or
arising from information in such Official Statement
supplied in writing by and describing the Issuing Bank or
any previous issuer of a letter of credit relating to the
Bonds.
(c) Nothing contained in this Section 10.04 is intended to
limit the Account Party's obligations set forth in Articles II, III and IV.
The Account Party's obligations under this Section 10.04 shall survive the
creation and sale of any participation interest pursuant to Section 10.06
hereof and shall survive as well the repayment of all amounts owing to the
Agent, the Issuing Bank and the Participating Banks under the Loan Documents
and the termination of the Commitments. If and to the extent that the
obligations of the Account Party under this Section 10.04 are unenforceable
for any reason, the Account Party agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible under applicable
law.
SECTION 10.05. Right of Set-off. (a) Upon (i) the
occurrence and during the continuance of any Event of Default and (ii) the
taking of any action or the giving of any instruction by the Agent as
specified by Section 8.02 hereof, the Issuing Bank and each Participating
Bank are hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Issuing Bank or such Participating Bank
to or for the credit or the account of the Account Party against any and all
of the obligations of the Account Party now or hereafter existing under this
Agreement in favor of the Issuing Bank or such Participating Bank,
irrespective of whether or not the Issuing Bank or such Participating Bank
shall have made any demand under this Agreement and although such obligations
may be unmatured. The Issuing Bank and each Participating Bank agrees
promptly to notify the Account Party after any such set-off and application
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Issuing Bank and each
Participating Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Issuing Bank and/or such Participating Bank may have.
(b) The Account Party agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations hereunder,
and that the obligations of the Issuing Bank and of the several Participating
Banks hereunder are several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of the Account Party's rights to any
independent claim that the Account Party may have against the Issuing Bank or
any Participating Bank, but no Participating Bank shall be liable for the
conduct of the Issuing Bank or any other Participating Bank, and the Issuing
Bank shall not be liable for the conduct of any Participating Bank.
SECTION 10.06. Binding Effect; Assignments and
Participants. (a) This Agreement shall become effective when it shall have
been executed and delivered by the Account Party, the Agent, the Issuing Bank
and each Participating Bank named on the signature pages hereto and
thereafter shall be binding upon and inure to the benefit of the Account
<PAGE>
Party, the Agent, the Issuing Bank and each Participating Bank and their
respective successors and assigns, except that the Account Party shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Issuing Bank and each Participating Bank,
and the Issuing Bank may not assign its commitment to issue the Letter of
Credit or its obligations under or in respect of the Letter of Credit.
(b) Each Participating Bank may assign all or any portion
of its rights under this Agreement, under the Letter of Credit or in any
security hereunder, including, without limitation, any instruments securing
the Account Party's obligations hereunder; provided that (i) no assignment by
any Participating Bank may be made to any Person, other than to another
Participating Bank, except with the prior written consent of the Issuing Bank
and the Account Party (which consent, in the case of the Account Party, shall
not be unreasonably withheld), (ii) any assignment shall be of a constant and
not a varying percentage of all of the assignor's rights and obligations
hereunder and (iii) the parties to each such assignment shall execute and
deliver to the Agent a Participation Assignment, together with a processing
fee of $2,500. Upon receipt of a completed Participation Assignment and the
processing fee, the Agent will record in a register maintained for such
purpose the name of the assignee and the percentage participation interest
assigned by the assignor and assumed by the assignee for purposes of the
determination of such assignor's and assignee's respective Participation
Percentages. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Participation Assignment,
which effective date shall be at least five Business Days after the execution
thereof, the assignee shall, to the extent of such assignment, become a party
hereto and have all of the rights and obligations of a Participating Bank
hereunder and, to the extent of such assignment, such assigning Participating
Bank shall be released from its obligations hereunder (without relieving such
Participating Bank from any liability for damages, costs and expenses
suffered by the Issuing Bank or the Account Party as a result of the failure
by such Participating Bank to perform its obligations hereunder).
(c) Each Participating Bank may grant participations to one
or more Persons in all or any part of, or any interest (undivided or divided)
in, such Participating Bank's rights and obligations under this Agreement
(any such Person being referred to hereinafter as a "Participant" and such
interests are collectively, referred to hereinafter as the "Rights");
provided, however, that (i) such Participating Bank's obligations under this
Agreement shall remain unchanged; (ii) any such Participant shall be entitled
to the benefits and cost protections provided for in Section 4.03 hereof on
the same basis as if it were a Participating Bank hereunder; (iii) the
Account Party, the Agent and the Issuing Bank shall continue to deal solely
and directly with such Participating Bank in connection with such
Participating Bank's rights and obligations under this Agreement; and (iv) no
such Participant, other than an Affiliate of such Participating Bank, shall
be entitled to require such Participating Bank to take or omit to take any
action hereunder, unless such action or omission would have an effect of the
type described in subsections (c), (d) or (h) of Section 10.01 hereof.
(d) Notwithstanding anything contained in this
Section 10.06 to the contrary, the Issuing Bank and any Participating Bank
may assign and pledge all or any portion of the Advances (or participating
interests therein) owing to the Issuing Bank or such Participating Bank to
any Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve Bank. No
<PAGE>
such assignment shall release the Issuing Bank or such Participating Bank
from its obligations hereunder.
SECTION 10.07. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or implied, of any Loan
Document, or actions taken or to be taken by any party thereunder, shall be
construed to create a partnership, association, or joint venture between such
parties or any of them. No term or provision of the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege to, any
Person other than the parties hereto.
SECTION 10.08. Issuing Bank Not Liable. As between the
Agent, the Issuing Bank and the Participating Banks on the one hand, and the
Account Party on the other, the Account Party assumes all risks of the acts
or omissions of the Paying Agent, the Trustee and any other beneficiary or
transferee of the Letter of Credit with respect to its use of the Letter of
Credit. Neither the Agent, the Issuing Bank, any Participating Bank, nor any
of their respective officers or directors shall be liable or responsible for:
(a) the use which may be made of the Letter of Credit or any acts or
omissions of the Paying Agent, the Trustee and any other beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents which do not comply with the terms of the Letter of Credit,
including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever
in making or failing to make payment under the Letter of Credit, except that
the Account Party shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Account Party, to the extent of any
direct, as opposed to consequential, damages suffered by the Account Party
which the Account Party proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence, as determined by a court of competent
jurisdiction, in determining whether documents presented under the Letter of
Credit are genuine or comply with the terms of the Letter of Credit or (ii)
the Issuing Bank's willful or grossly negligent failure, as determined by a
court of competent jurisdiction, to make lawful payment under the Letter of
Credit after the presentation to it by the Paying Agent of a draft and
certificate strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing
Bank may accept original or facsimile (including telecopy) sight drafts and
accompanying certificates presented under the Letter of Credit that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 10.09. Confidentiality. In connection with the
negotiation and administration of this Agreement and the other Loan
Documents, the Account Party has furnished and will from time to time furnish
to the Agent, the Issuing Bank and the Participating Banks (each, a
"Recipient") written information which is identified to the Recipient when
delivered as confidential (such information, other than any such information
which (i) was publicly available, or otherwise known to the Recipient, at the
time of disclosure, (ii) subsequently becomes publicly available other than
through any act or omission by the Recipient or (iii) otherwise subsequently
becomes known to the Recipient other than through a Person whom the Recipient
knows to be acting in violation of his or its obligations to the Account
Party, being hereinafter referred to as "Confidential Information"). The
Recipient will not knowingly disclose any such Confidential Information to
<PAGE>
any third party (other than to those persons who have a confidential
relationship with the Recipient), and will take all reasonable steps to
restrict access to such information in a manner designed to maintain the
confidential nature of such information, in each case until such time as the
same ceases to be Confidential Information or as the Account Party may
otherwise instruct. It is understood, however, that the foregoing will not
restrict the Recipient's ability to freely exchange such Confidential
Information with prospective assignees of or participants in the Recipient's
position herein, but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such prospective assignee's or
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not
prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's records by
appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or (iii) otherwise, as required by law; in the event of any
required disclosure under clause (ii) or (iii), above, the Recipient agrees
to use reasonable efforts to inform the Account Party as promptly as
practicable.
SECTION 10.10 Waiver of Jury Trial. The Account Party,
the Arrangers, the Agent, the Issuing Bank, and the Participating Banks each
hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or
any other Loan Document, or any other instrument or document delivered
hereunder or thereunder.
SECTION 10.11. Governing Law. This Agreement and the
Pledge Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. The Account Party, the Arrangers, the Agent,
the Issuing Bank and each Participating Bank each (i) irrevocably submits to
the jurisdiction of any New York State Court or Federal court sitting in New
York City in any action arising out of any Loan Document, (ii) agrees that
all claims in such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
and (iv) consents to the service of process by mail. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions.
Nothing herein shall affect the right of any party to serve legal process in
any manner permitted by law or affect its right to bring any action in any
other court.
SECTION 10.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE ACCOUNT PARTY:
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
By/s/John B. Keane
Title: Vice President and Treasurer
<PAGE>
THE AGENT AND ISSUING BANK:
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Agent and as Issuing Bank
By/s/Darryl M. Monasebian
Title: Darryl M. Monasebian
Associate Director
Merchant Banking
By/s/Teresa A. Portela
Title: Teresa A. Portela
Associate Director
Merchant Banking
THE PARTICIPATING BANKS:
SWISS BANK CORPORATION,
NEW YORK BRANCH
By/s/Darryl M. Monasebian
Title: Darryl M. Monasebian
Associate Director
Merchant Banking
By/s/Teresa A. Portela
Title: Teresa A. Portela
Associate Director
Merchant Banking
Participation Percentage: 7.6631214901%
Address for Notices
Swiss Bank Corporation
222 Broadway
New York, New York 10038
Attention: Darryl Monasebian
Telephone: (212) 574-3103
Fax: (212) 574-4395
<PAGE>
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By/s/Felipe A. Gomez
Title: Vice President
Participation Percentage: 7.5548355144%
Address for Notices
Bank of America NT & SA
335 Madison Avenue - 5th Floor
New York, New York 10017
Attention: Felipe A. Gomez
Telephone: (212) 503-8355
Fax: (212) 503-7066
<PAGE>
LTCB TRUST COMPANY
By/s/Noboru Kubota
Title: Senior Vice President
Participation Percentage: 7.5548355144%
Address for Notices
LTCB Trust Company
165 Broadway, 49th Floor
New York, New York 10006
Attention: Gregory Hong
Telephone: (212) 335-4534
Fax: (212) 608-2371/2529
<PAGE>
TORONTO DOMINION
(NEW YORK), INC.
By/s/Linda A. Lavin
Title: Director
Participation Percentage: 7.5548355144%
Address for Notices
The Toronto-Dominion Bank
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attention: Neva Nesbitt
Telephone: (713) 653-8261
Fax: (713) 951-9921
<PAGE>
UNION BANK
By/s/John M. Edmonston
Title: V.P.
Participation Percentage: 7.5548355144%
Address for Notices
Union Bank
445 S. Figueroa Street, 15th Floor
Los Angeles, CA 90071
Attention: Jason P. Dinapoli
Telephone: (213) 236-5016
Fax: (213) 236-4096
<PAGE>
THE BANK OF NOVA SCOTIA
By/s/T.M. Pitcher
Title:Authorized Signatory
Participation Percentage: 5.0365570096%
Address for Notices
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
Attention: Stephen M. Johnson
Telephone: (617) 737-6319
Fax: (617) 951-2177
<PAGE>
CHEMICAL BANK
By/s/R. Potter
Title: Managing Director
Participation Percentage: 5.0365570096%
Address for Notices
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Paul V. Farrell
Telephone: (212) 270-7653
Fax: (212) 270-5007
<PAGE>
CITIBANK, N.A.
By/s/Paul T. Addison
Title: ATTORNEY IN FACT
Participation Percentage: 5.0365570096%
Address for Notices
Citibank, N.A.
399 Park Avenue, 4th Floor
New York, New York 10043
Attention: Scott De Ghetto
Telephone: (212) 559-1670
Fax: (212) 793-6130
<PAGE>
THE FIRST NATIONAL BANK
OF BOSTON
By/s/Frank T. Smith
Title: Director
Participation Percentage: 5.0365570096%
Address for Notices
The First National Bank of Boston
100 Federal Street, MS 01-08-02
Boston, MA 02110
Attention: Michelle Appleby
Telephone: (617) 434-6477
Fax: (617) 434-3652
<PAGE>
THE FIRST NATIONAL BANK
OF CHICAGO
By/s/Tsang-Wah Thomas Cheng
Title: Vice President
Participation Percentage: 5.0365570096%
Address for Notices
The First National Bank of Chicago
One First National Plaza, Suite 0363
Chicago, Illinois 60670
Attention: T. Thomas Cheng
Telephone: (312) 732-7822
Fax: (312) 732-3055
<PAGE>
THE FUJI BANK, LIMITED
By/s/Gina M. Kearns
Title: Vice President & Manager
Participation Percentage: 5.0365570096%
Address for Notices
The Fuji Bank, Limited
Two World Trade Center
New York, New York 10048
Attention: Michael Gebauer
Telephone: (212) 898-2064
Fax: (212) 488-8216
<PAGE>
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By/s/R. W. Ramage, Jr.
Title: Senior Vice President
Participation Percentage: 5.0365570096%
Address for Notices
The Industrial Bank of Japan
Trust Company
245 Park Avenue
New York, New York 10167
Attention: Ira Gottlieb
Telephone: (212) 309-6656
Fax: (212) 856-9450
<PAGE>
THE NIPPON CREDIT BANK, LTD.
By/s/Evan Klein
Title: AVP
Participation Percentage: 5.0365570096%
Address for Notices
The Nippon Credit Bank, Ltd.
245 Park Avenue
New York, New York 10167
Attention: Peter Fiorillo
Telephone: (212) 984-1263
Fax: (212) 697-8034
<PAGE>
SHAWMUT BANK
By/s/Thomas L. Rose
Title: Vice President
Participation Percentage: 5.0365570096%
Address for Notices
Shawmut Bank
One Federal Street
Boston, MA 02211
Attention: Thomas L. Rose
Telephone: (617) 292-3030
Fax: (617) 292-2619
<PAGE>
SOCIETE GENERALE
By/s/Gordon Eadon
Title: GORDON EADON
VICE PRESIDENT
By/s/Robert Peterson
Title: VP
Participation Percentage: 5.0365570096%
Address for Notices
Societe Generale
1221 Avenue of the Americas
New York, New York 10020
Attention: Gordon Eadon
Telephone: (212) 278-6880
Fax: (212) 278-7430
<PAGE>
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By/s/Suresh S. Tata
Title: Suresh S. Tata
Vice President
Participation Percentage: 5.0365570096%
Address for Notices
The Sumitomo Bank, Limited,
New York Branch
277 Park Avenue
New York, New York 10172
Attention: Renata Jacobson
Telephone: (212) 244-4135
Fax: (212) 224-4188
<PAGE>
MELLON BANK, N.A.
By/s/Mary Ellen Usher
Title: Vice President
Participation Percentage: 3.3577046731%
Address for Notices
Mellon Bank, N.A.
One Mellon Bank Center, Room 4425
Pittsburgh, Pennsylvania 15258-0001
Attention: Mary Ellen Usher
Telephone: (412) 236-1203
Fax: (412) 234-8888
<PAGE>
THE YASUDA TRUST AND BANKING
CO., LTD., NEW YORK BRANCH
By/s/Michael G. Haggarty
Title: Vice President
Participation Percentage: 3.3577046731%
Address for Notices
The Yasuda Trust and Banking Co., Ltd.,
New York Branch
666 Fifth Avenue, Suite 801
New York, New York 10103
Attention: Michael G. Haggarty
Telephone: (212) 373-5722
Fax: (212) 373-5796
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
Bank of America 1850 Gateway Same
NT&SA Boulevard
Concord, CA 94520
Att: Lori Martin
Tel: (510) 675-7212
Fax: (510) 675-
7531/7532
The Bank of Nova 101 Federal Street Same
Scotia Boston, MA 02110
Att: Stephen M.
Johnson
Tel: (617) 737-6319
Fax: (617) 951-2177
Chemical Bank 270 Park Avenue Same
New York, NY 10017
Att: Lynette Long
Tel: (212) 270-2274
Fax: (212) 270-4016
Citibank, N.A. 1 Court Square Same
7th Floor/Zone 1
Long Island City, NY
11120
Att: Ann Chiou
Tel: (718) 248-4562
Fax: (718) 248-4844
The First 100 Federal Street Same
National Bank of Boston, MA 02110
Boston Att: Michelle
Appleby
Tel: (617) 434-6477
Fax: (617) 434-3652
The First 1 First National Same
National Bank of Plaza
Chicago Suite 0821/IND-9
Chicago, IL 60670
Att: Ann Fritz
Tel: (312) 732-5083
Fax: (312) 732-1065
The Fuji Bank, Two World Trade Same
Limited Center
New York, NY 10048
Att: Kathleen
Bursotti
Tel: (212) 898-2065
Fax: (212) 488-8216
<PAGE>
2
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
The Industrial 245 Park Avenue Same
Bank of Japan New York, NY 10167
Trust Company Att:
Tel: (212) 309-6793
Fax: (212) 949-0134
LTCB Trust 165 Broadway, 48th Same
Company Floor
New York, NY 10006
Att: Winston Brown
Tel: (212) 335-4854
Fax: (212) 608-3081
Mellon Bank, N.A. Loan Administration Same
Three Mellon Bank
Center
Room 2305
Pittsburgh, PA
15259-0003
Att: Tracey Stevens
Tel: (412) 234-4749
Fax: (412) 234-5049
The Nippon Credit 245 Park Avenue Same
Bank, Ltd. New York, NY 10167
Att: Evan Klein
Tel: (212) 984-1228
Fax: (212) 490-3895
Shawmut Bank One Federal Street Same
Boston, MA 02211
Att: Thomas L. Rose
Tel: (617) 292-3030
Fax: (617) 292-2619
Societe Generale 1221 Avenue of the Same
Americas
New York, NY 10020
Att: Maggie
O'Donnell
Tel: (212) 278-6853
Fax: (212) 278-7430
The Sumitomo 277 Park Avenue Same
Bank, Limited, New York, NY 10172
New York Branch Att: Christine
Bonifacio
Tel: (212) 224-4138
Fax: (212) 224-5188
Swiss Bank 222 Broadway, 2nd Same
Corporation Floor
New York, NY 10038
<PAGE>
3
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
Attn: Darryl
Monasebian
Tel: (212) 574-3103
Fax: (212) 574-4395
Toronto Dominion 909 Fannin, Suite Same
(New York), Inc. 1700
Houston, TX 12345
Att: Neva Nesbitt
Tel: (713) 653-8261
Fax: (713) 951-9921
Union Bank 445 S. Figueroa Same
Street
15th Floor
Los Angeles, CA
90071
Att: Patricia Ayala
Tel: (213) 236-6199
Fax: (213) 236-4096
The Yasuda Trust 666 Fifth Avenue, Same
and Banking Co., Ste. 801
Ltd., New York New York, NY 10103
Branch Att: Richard Ortiz
Tel: (212) 373-
5755/56
Fax: (212) 373-5797
<PAGE>
SCHEDULE II
[Information with respect to unexpired appeal periods:]
The period for the submission of a motion for rehearing with respect
to the decision of the New Hampshire Public Utilities Commission (the
"NHPUC") approving the transactions contemplated hereby will not expire until
May 19, 1995. Under the terms of the NHPUC's decision, any interested person
could file written comments or request an opportunity to be heard in the
matter no later than April 12, 1995, and the decision would become effective
on April 19, 1995 unless the NHPUC otherwise provided in a supplemental order
issued prior to such effective date. No person filed written comments or
requested an opportunity to be heard on or prior to April 12, 1995 or
subsequently, the NHPUC did not supplement the decision prior to April 19,
1995 or subsequently and the decision became effective in accordance with its
terms on April 19, 1995. No person may appeal the decision of the NHPUC
without first filing a motion for rehearing on or before May 19, 1995. No
such motion has been filed. Counsel for the Account Party is of the opinion
that the transactions contemplated hereby may be validly consummated prior to
the expiration of such rehearing period.
<PAGE>
1
EXHIBIT 1.01A to
Reimbursement Agreement
[LETTERHEAD OF SWISS BANK CORPORATION]
IRREVOCABLE LETTER OF CREDIT
NO. S561992
May 2, 1995
BankAmerica National Trust Company
One World Trade Center, 18th Floor
New York, New York 10048
Attention: Corporate Trust Division
Dear Sir or Madam:
We hereby establish, at the request and for the account of Public Service
Company of New Hampshire (the "Account Party"), in your favor, as paying
agent (the "Paying Agent") under that certain Series E Loan and Trust
Agreement, dated as of May 1, 1991, as supplemented by a First Supplement
thereto dated as of December 1, 1993 and a Second Supplement thereto dated as
of May 1, 1995, (as so supplemented, the "Indenture"), by and among the
Business Finance Authority (formerly The Industrial Development Authority) of
the State of New Hampshire (the "Issuer"), the Account Party and State Street
Bank and Trust Company, as trustee (the "Trustee"), pursuant to which
$69,700,000 in outstanding aggregate principal amount of the Issuer's
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series E) and $44,800,000 in outstanding aggregate
principal amount of the Issuer's Pollution Control Refunding Revenue Bonds
(Public Service Company of New Hampshire Project - 1993 Tax-Exempt Series E)
(such 1991 Taxable Series E and 1993 Tax-Exempt Series E bonds being
hereinafter referred to, collectively, as the "Bonds"), have been issued, our
Irrevocable Letter of Credit No. S561992, in the amount of US$119,129,000
(ONE HUNDRED NINETEEN MILLION ONE HUNDRED TWENTY-NINE THOUSAND AND NO ONE-
HUNDREDTHS UNITED STATES DOLLARS), subject to reduction and reinstatement as
provided below.
(1) Credit Termination Date. This Letter of Credit shall expire on the
earliest to occur of (i) May 1, 1998 (the "Stated Termination Date"), (ii)
the date upon which we honor a draft accompanying a written and completed
certificate signed by you in substantially the form of Exhibit 2 attached
hereto, and stating therein that such draft is the final draft to be drawn
under this Letter of Credit and that, upon the honoring of such draft, this
Letter of Credit will expire in accordance with its terms, (iii) the date
upon which we receive a written certificate signed by you and stating therein
that no Bonds entitled to the benefits of this Letter of Credit (as
determined in accordance with the Indenture) ("Eligible Bonds") are
"outstanding" under the Indenture, (iv) the fifth business day following
receipt by you and the Trustee of written notice from us that an Event of
<PAGE>
2
Default (as defined below) has occurred under the Reimbursement Agreement (as
defined below) and of our determination to terminate this Letter of Credit on
such fifth business day and (v) the date upon which we receive a written
certificate signed by you and stating therein that a substitute or
replacement Credit Facility (as defined in the Indenture) has been provided
pursuant to Section 317 of the Indenture (such earliest date being the
"Credit Termination Date").
As used herein, the term "business day" shall mean any day of the year (i)
that is not a Sunday or legal holiday or a day on which banking institutions
are authorized pursuant to law to close, (ii) that is not a day on which the
corporate trust office of the First Mortgage Bond Trustee (as defined in the
Indenture) is not open for business, (iii) that is a day on which banks are
not required or authorized to close in New York City and (iv) that is a day
on which banking institutions in all of the cities in which the principal
offices of the Trustee, the Paying Agent and the Remarketing Agent (as
defined in the Indenture) are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
As used herein "Reimbursement Agreement" shall mean the Second Series E
Letter of Credit and Reimbursement Agreement, dated as of May 1, 1995,
between the Account Party, us and certain Participating Banks referred to
therein, and the term "Event of Default" shall mean an "Event of Default" as
that term is defined in the Reimbursement Agreement.
(2) Principal, Interest and Premium Components. The aggregate amount
which may be drawn under this Letter of Credit, subject to reductions in
amount and reinstatement as provided below, is US$119,129,000.00 (ONE HUNDRED
NINETEEN MILLION ONE HUNDRED TWENTY-NINE THOUSAND AND NO ONE-HUNDREDTHS
UNITED STATES DOLLARS), of which the aggregate amounts set forth below may be
drawn as indicated.
(i) An aggregate amount not exceeding US$114,500,000.00 (ONE
HUNDRED FOURTEEN MILLION FIVE HUNDRED THOUSAND AND NO ONE-HUNDREDTHS UNITED
STATES DOLLARS), as such amount may be reduced and reinstated as provided
below, (the "Principal Component") may be drawn in respect of payment of
principal (whether upon scheduled or accelerated maturity, or upon
redemption) of Eligible Bonds or the portion of the purchase price of
Eligible Bonds corresponding to principal.
(ii) An aggregate amount not exceeding US$4,629,000.00 (FOUR MILLION
SIX HUNDRED TWENTY-NINE THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES
DOLLARS), as such amount may be reduced and reinstated as provided below,
(the "Interest Component") may be drawn in respect of payment of:
(A) accrued and unpaid interest on Eligible Bonds not in the
Flexible Mode (as defined in the Indenture) or that portion of the
redemption price or purchase price of such Eligible Bonds
corresponding to accrued and unpaid interest, but not more than an
amount equal to accrued and unpaid interest on such Eligible Bonds for
up to a maximum of 1) 128 days immediately preceding the date of such
drawing (in the case of Eligible Bonds that are 1991 Taxable Series E
Bonds) and 2) 45 days immediately preceding the date of such drawing
(in the case of Eligible Bonds that are 1993 Tax-Exempt Series E
Bonds); and
<PAGE>
3
(B) unpaid interest (whether accrued or to accrue) on Eligible
Bonds in the Flexible Mode or that portion of the redemption price or
purchase price of such Eligible Bonds corresponding to such interest,
but not more than an amount equal to such interest on such Eligible
Bonds for up to a maximum of 1) 128 days immediately preceding the
next Purchase Date (as defined in the Indenture) for each such
Eligible Bond (in the case of Eligible Bonds that are 1991 Taxable
Series E Bonds) (or, if interest on any such Eligible Bond was not
paid on the most recent Purchase Date for such Bond, for up to a
maximum of 128 days immediately preceding the date of such drawing)
and 2) 45 days immediately preceding such Purchase Date (in the case
of Eligible Bonds that are 1993 Tax-Exempt Series E Bonds) (or, if
interest on any such Eligible Bond was not paid on the most recent
Purchase Date for such Bond, for up to a maximum of 45 days
immediately preceding the date of such drawing);
calculated, in each case referred to in the foregoing clause (A) or clause
(B) at a maximum rate of:
(X) sixteen percent (16%) per annum on the basis of a year of 360
days for the actual days elapsed, or such lesser rate of interest as
shall equal the Maximum Interest Rate (as defined in the Indenture) in
effect under the Indenture with respect to such Eligible Bonds that
are 1991 Taxable Series E Bonds (whether or not in the Flexible Mode);
and
(Y) twelve percent (12%) per annum on the basis of a year of 365
or 366 days (as applicable) for the actual days elapsed, or such
lesser rate of interest as shall equal the Maximum Interest Rate in
effect under the Indenture with respect to such Eligible Bonds that
are 1993 Tax-Exempt Series E Bonds (whether or not in the Flexible
Mode).
(iii) An aggregate amount not exceeding US$0.00 (ZERO UNITED
STATES DOLLARS) may be drawn in respect of premium on Eligible Bonds (the
"Premium Component"). If, subsequent to the date hereof, the Premium
Component shall be increased by us at the request of the Account Party, the
Premium Component shall be subject to reduction as provided below, and
amounts drawn in respect thereof shall not be subject to reinstatement.
(3) Drawings. Funds under this Letter of Credit are available to you
against (i) your draft, stating on its face: "Drawn under Irrevocable Letter
of Credit No. S561992, dated May 2, 1995", and (ii) the appropriate
certificate specified below, purportedly executed by you and appropriately
completed.
<PAGE>
4
Exhibit Setting Forth
Type of Drawing Form of Certificate Required
Tender Drawing Exhibit 1
(as hereinafter defined)
Redemption/Mandatory Exhibit 2
Purchase Drawing
(as hereinafter defined)
Interest Drawing Exhibit 3
(as hereinafter
defined)
Drafts and certificates hereunder shall be dated the date of presentation
and shall be presented at our office located at 10 East 50th Street, New
York, New York 10022, Attention: Letter of Credit Department (or at such
other office as we may designate by written notice to you). Presentation of
such drafts and certificates may be made (a) by physical presentation of such
drafts and certificates or (b) by facsimile transmission of such drafts and
certificates received by us at (212) 574-4657 (or at such other number as we
may designate by written notice to you) with prior telephone notice to us at
(212) 574-4620 (or at such other number as we may designate by written notice
to you) that such presentation is to be made by facsimile transmission and
with the original executed drafts and certificates to be received by us not
later than our close of business on the next business day, it being
understood that payments hereunder shall be made upon receipt by us of such
facsimile transmission; provided, however, that presentations of drafts and
certificates relating to Tender Drawings in respect of Eligible Bonds in the
Flexible Mode shall in all instances be made in accordance with the foregoing
clause (b). Drafts drawn under and in strict compliance with the terms of
this Letter of Credit will be duly honored by us upon presentation thereof in
accordance with this Paragraph 3 if presented on or prior to 4:00 P.M. (New
York City time) on the Credit Termination Date as follows:
(i) Tender Drawings; Flexible Mode: In the case of drafts and
certificates relating to Tender Drawings in respect of Eligible Bonds in
the Flexible Mode presented in accordance with the foregoing clause (b):
(A) if such drafts and certificates are presented as aforesaid at
or prior to 1:30 P.M. (New York City time) on a business day, and
provided that such drafts and certificates strictly conform to the
requirements of this Letter of Credit, we will initiate a wire
transfer of the amount so drawn to your account indicated below at or
prior to 3:30 P.M. (New York City time) on the same business day;
(B) if such drafts and certificates are presented as aforesaid
after 1:30 P.M. but at or prior to 4:00 P.M. (New York City time) on a
business day, and provided that such drafts and certificates strictly
conform to the requirements of this Letter of Credit, we will initiate
a wire transfer of the amount so drawn to your account indicated below
at or prior to 10:00 A.M. on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date); and
<PAGE>
5
(C) if such drafts and certificates are presented as aforesaid
after 4:00 P.M. (New York City time) on a business day, and provided
that such drafts and certificates strictly conform to the requirements
of this Letter of Credit, we will initiate a wire transfer of the
amount so drawn to your account indicated below at or prior to 1:00
P.M. (New York City time) on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date);
and
(ii) All Other Drawings: In the case of any other drafts and
certificates:
(A) if such drafts and certificates are presented as aforesaid at
or prior to 4:00 P.M. (New York City time) on a business day, and
provided that such drafts strictly conform to the requirements of this
Letter of Credit, we will initiate a wire transfer of the amount so
drawn to your account indicated below at or prior to 10:00 A.M. (New
York City time) on the business day next succeeding the business day
on which such drafts and certificates were presented (notwithstanding
that such day of presentation may have been the Credit Termination
Date); and
(B) if such drafts and certificates are presented as aforesaid
after 4:00 P.M. (New York City time) on a business day, and provided
that such drafts and certificates strictly conform to the requirements
of this Letter of Credit, we will initiate a wire transfer of the
amount so drawn to your account indicated below at or prior to 1:00
P.M. (New York City time) on the business day next succeeding the
business day on which such drafts and certificates were presented
(notwithstanding that such day of presentation may have been the
Credit Termination Date).
Wire transfers of funds paid in respect of any drawing hereunder shall be
made to your Account No. 1000-551 at BK AMER (ABA #0260-05885), reference:
Corporate Trust Department, Attention: Stephen Bruce, or to such other
account as you may from time to time specify to us in writing. All payments
made by us under this Letter of Credit will be made with our own funds and
not with any funds of the Account Party or the Issuer.
(4) Reductions. The Interest Component shall be reduced immediately
following our honoring any draft drawn hereunder to pay unpaid interest on
Eligible Bonds or to pay that portion of the purchase price or redemption
price corresponding to unpaid interest on Eligible Bonds, in each case by an
amount equal to the amount of such draft (any such drawing being an "Interest
Drawing"). The Principal Component shall be reduced immediately following
our honoring any draft drawn hereunder: (i) pursuant to Section 308(c)(ii)
of the Indenture to pay that portion of purchase price corresponding to
principal of Eligible Bonds that are (A) subject to mandatory tender for
purchase pursuant to Section 301(d)(iii), 301(e)(iv)(B) or 301(f)(iii) of the
Indenture or (B) tendered for purchase by the holders thereof pursuant to
Section 301(e)(iii) of the Indenture (any such drawing in respect of the
circumstances referred to in this clause (i) being a "Tender Drawing"), (ii)
pursuant to Section 308(c)(i) of the Indenture to pay the principal of
<PAGE>
6
Eligible Bonds or that portion of the redemption price of Eligible Bonds
corresponding to principal, whether at stated maturity, upon acceleration or
upon redemption, or (iii) pursuant to Section 308(c)(ii) of the Indenture to
pay that portion of the purchase price corresponding to principal of Eligible
Bonds that are subject to mandatory tender for purchase pursuant to Section
301(e)(iv)(A) of the Indenture (any such drawing in respect of the
circumstances referred to in the foregoing clause (ii) or in this clause
(iii) being a "Redemption/Mandatory Purchase Drawing"), in each such case by
an amount equal to the amount of such draft. The Premium Component shall be
reduced immediately following our honoring any draft drawn hereunder to pay
premium on Eligible Bonds in connection with a Redemption/Mandatory Purchase
Drawing, by an amount equal to the amount of such draft.
Additionally, upon receipt of a Notice of Reduction in the form of
Exhibit 4 to this Letter of Credit purportedly executed by you, we will
reduce the Principal Component, Interest Component and Premium Component to
the amounts therein stated.
(5) Reinstatement. The Interest Component and the Principal Component
shall, from time to time, be reinstated by us in accordance with, and only to
the extent provided in, the following subparagraphs (i) and (ii). In no
event shall reductions in the Premium Component be reinstated.
(i) Interest Component. Reductions in the Interest Component
resulting from Interest Drawings shall be reinstated as follows:
(A) Immediately following each drawing hereunder to pay unpaid
interest on Eligible Bonds in the Flexible Mode or to pay that portion
of purchase price, but not redemption price, corresponding to unpaid
interest on Eligible Bonds in the Flexible Mode, the amount so drawn
shall be automatically reinstated to the Interest Component unless,
not later than the business day preceding such drawing you shall have
received written notice from us that we will not reinstate the
Interest Component in the amount of such drawing. On the fifth day
following each drawing hereunder to pay accrued and unpaid interest on
Eligible Bonds that are not in the Flexible Mode, or to pay that
portion of purchase price, but not redemption price, corresponding to
accrued and unpaid interest on Eligible Bonds that are not in the
Flexible Mode, the amount so drawn shall be automatically reinstated
to the Interest Component, unless you shall have theretofore received
written notice from us that we will not reinstate the Interest
Component in the amount of such drawing. Any notice of non-
reinstatement delivered pursuant to this subparagraph (i)(A) shall be
in writing and shall be delivered to you by hand delivery or facsimile
transmission.
(B) If, subsequent to any such delivery of a notice of non-
reinstatement as aforesaid, we shall deliver to you, by hand delivery
or facsimile transmission, a Notice of Reinstatement in the form of
Exhibit 5 hereto, then, upon such delivery to you, the Interest
Component shall be immediately reinstated to the extent specified in
such Notice of Reinstatement.
(C) In no event shall the Interest Component be reinstated to an
amount in excess of the sum of: 1) 128 days' interest on all Eligible
Bonds that are 1991 Taxable Series E Bonds, computed at the rate of
<PAGE>
7
16% per annum on the basis of a year of 360 days for the actual days
elapsed, or such lesser rate of interest as shall equal the Maximum
Interest Rate (as defined in the Indenture) in effect under the
Indenture with respect to such Eligible Bonds and 2) 45 days' interest
on all Eligible Bonds that are 1993 Tax-Exempt Series E Bonds,
computed at the rate of 12% per annum on the basis of a year of 365 or
366 days (as applicable) for the actual days elapsed, or such lesser
rate of interest as shall equal the Maximum Interest Rate in effect
under the Indenture with respect to such Eligible Bonds.
(ii) Principal Component. Reductions in the Principal Component
resulting from Redemption/Mandatory Purchase Drawings shall in no event be
reinstated. Reductions in the Principal Component resulting from Tender
Drawings shall be reinstated as follows:
(A) Immediately upon receipt by us of proceeds from the
remarketing of Pledged Bonds (as defined in the Indenture), or of
written notice from you that you have received such proceeds (or a
window receipt guaranteeing same day payment in immediately available
funds of such proceeds as contemplated by Section 312(a) of the
Indenture), the Principal Component shall be reinstated automatically
by the amount of such proceeds.
(B) Immediately upon your receipt from us, by hand delivery or
facsimile transmission, of a Notice of Reinstatement in the form of
Exhibit 5 hereto, the Principal Component shall be immediately
reinstated to the extent specified in such Notice of Reinstatement.
(C) In no event shall the Principal Component be reinstated to
an amount in excess of the aggregate principal amount of Eligible
Bonds then outstanding under the Indenture.
Any Notice of Reinstatement delivered to you in the form set forth in Exhibit
5 hereto, whether delivered pursuant to subparagraph (i) or subparagraph
(ii), above, may be combined, in a single such Notice, with any other Notice
of Reinstatement delivered pursuant to the other such subparagraph.
(6) Notices. Communications (other than drawings) with respect to this
Letter of Credit shall be in writing and shall be addressed to us at 222
Broadway, 2nd Floor, New York, New York 10038, Attention: Ms. Laura
Paradiso, Client Services (telephone: 212-574-4119, telecopy: 212-574-
3180), with a copy to Utilities Group, Attention: Darryl Monasebian
(telephone: (212) 574-3103, telecopy: (212) 574-4395), in each case
specifically referring to the number of this Letter of Credit, or to such
other office as we may from time to time specify to you in writing.
(7) Transfer. This Letter of Credit is transferable in its entirety (but
not in part) to any transferee who has succeeded you as Paying Agent under
the Indenture and may be successively so transferred. Transfer of the
available balance under this Letter of Credit to such transferee shall be
effected by the presentation to us of this Letter of Credit accompanied by a
certificate substantially in form set forth in Exhibit 6.
(8) Governing Law, Etc. Except as otherwise provided herein, this Letter
of Credit shall be governed by and construed in accordance with the Uniform
Customs and Practices for Documentary Credits (1993 Revision) Publication No.
<PAGE>
8
500 of the International Chamber of Commerce ("UCP") and, to the extent not
inconsistent with the UCP, the laws of the State of New York, including the
Uniform Commercial Code as in effect in the State of New York. This Letter
of Credit sets forth in full our undertaking, and, except as expressly set
forth herein, such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or agreement
referred to herein (including, without limitation, the Bonds, the Indenture
and the Reimbursement Agreement), except only the certificates and the drafts
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificates and such drafts. Whenever and wherever the terms of this Letter
of Credit shall refer to the purpose of a draft hereunder, or the provisions
of any agreement or document pursuant to which such draft may be presented
hereunder, such purpose or provisions shall be conclusively determined by
reference to the certificate accompanying such draft; in furtherance of this
sentence, whether any drawing is in respect of payment of regularly scheduled
interest on the Bonds or of principal of or interest on the Bonds upon
scheduled or accelerated maturity or is a Tender Drawing or a
Redemption/Mandatory Purchase Drawing shall be conclusively determined by
reference to the certificate accompanying such drawing.
Very truly yours,
SWISS BANK CORPORATION,
NEW YORK BRANCH
By
Title:
By
Title:
<PAGE>
9
EXHIBIT 1
TO THE LETTER OF CREDIT
CERTIFICATE FOR TENDER DRAWING
The undersigned, a duly authorized officer of ,
(the "Paying Agent"), hereby certifies as follows to Swiss Bank Corporation,
New York Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. _________________ (the "Letter of Credit") issued by the Bank in favor of
the Paying Agent. Terms defined in the Letter of Credit and used but not
defined herein shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Tender Drawing under the Letter of Credit
in the amount of $ pursuant to Section 308(c)(ii) of the Indenture
to pay that portion of the purchase price corresponding to principal of
Eligible Bonds that are
[subject to mandatory tender for purchase pursuant to Section
[301(d)(iii)] [301(e)(iv)(B)] [301(f)(iii)] of the Indenture.]
[tendered for purchase by the holders thereof pursuant to Section
301(e)(iii) of the Indenture.]
(3) The amount of purchase price corresponding to principal of Eligible
Bonds and with respect to the payment of which the Paying Agent, pursuant to
the foregoing Sections of the Indenture, is drawing under the Letter of
Credit, is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Principal: $
(4) The amount of the draft accompanying this Certificate being drawn in
respect of purchase price corresponding to principal of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. The amount of the draft accompanying this Certificate
in respect of purchase price corresponding to principal of such Bonds has
been computed in accordance with the terms and conditions of such Eligible
Bonds and the Indenture.
(5) No proceeds of this drawing will be applied to the payment of purchase
price of any Bonds that are not Eligible Bonds, including any Pledged Bonds
(as defined in the Indenture), any Company Bonds (as defined in the
Indenture) and any Bonds in the Fixed Rate Mode (as defined in the
Indenture).
[(6) The Eligible Bonds in respect of which this drawing is being made are
Eligible Bonds in the Flexible Mode, and payment of this drawing shall be
made in accordance with Paragraph 3(i) of the Letter of Credit.]
<PAGE>
10
[(6) The Eligible Bonds in respect of which this drawing is being made are
not Eligible Bonds in the Flexible Mode, and payment of this drawing shall be
made in accordance with Paragraph 3(ii) of the Letter of Credit].
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
11
EXHIBIT 2
TO THE LETTER OF CREDIT
CERTIFICATE FOR REDEMPTION/
MANDATORY PURCHASE DRAWING
The undersigned, a duly authorized officer of , (the
"Paying Agent"), hereby certifies as follows to Swiss Bank Corporation, New
York Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
_____________________ (the "Letter of Credit") issued by the Bank in favor of
the Paying Agent. Terms defined in the Letter of Credit and used but not
defined herein shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Redemption/Mandatory Purchase Drawing
under the Letter of Credit in the amount of $______________
[pursuant to Section 308(c)(i) and Section 605 of the Indenture to pay
the principal of Eligible Bonds due pursuant to the Indenture upon
maturity or as a result of acceleration of such Eligible Bonds in
accordance with the Indenture and the terms of such Eligible Bonds.]
[pursuant to Section 308(c)(i) of the Indenture to pay that portion of
the redemption price corresponding to principal of [and premium on]
Eligible Bonds due pursuant to the Indenture upon redemption of such
Eligible Bonds in accordance with the Indenture and the terms of such
Eligible Bonds.]
[pursuant to Section 308(c)(ii) of the Indenture to pay that portion
of the purchase price of Eligible Bonds corresponding to principal
that are subject to mandatory tender for purchase pursuant to Section
301(e)(iv)(A) of the Indenture.]
(3) The amount of [principal of] [redemption price corresponding to
principal of] [and premium on] [purchase price corresponding to principal of]
Eligible Bonds which is due and payable and with respect to the payment of
which the Paying Agent, pursuant to the foregoing Section[s] of the
Indenture, is to draw under the Letter of Credit is as follows, and the
amount of the draft accompanying this Certificate does not exceed such
amount:
Principal: $
[Premium: $ ]
(4) The amount of the draft accompanying this Certificate being drawn in
respect of payment of [principal] [redemption price corresponding to
principal] [purchase price corresponding to principal] of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. [The amount of the draft accompanying this Certificate
being drawn in respect of that portion of the redemption price of Eligible
Bonds corresponding to premium, as indicated in paragraph (3), above, does
not exceed the Premium Component of the Letter of Credit.] The amount of the
<PAGE>
12
draft accompanying this Certificate in respect of payment of [principal]
[redemption price corresponding to principal] [and premium] [purchase price
corresponding to principal] of such Eligible Bonds has been computed in
accordance with the terms and conditions of such Eligible Bonds and the
Indenture.
(5) No proceeds of this drawing will be applied to the payment of
principal, redemption price (including premium, if any) or purchase price of
any Bonds that are not Eligible Bonds, including any Pledged Bonds (as
defined in the Indenture), any Company Bonds (as defined in the Indenture),
and any Bonds in the Fixed Rate Mode (as defined in the Indenture).
(6) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
[(7) The draft accompanying this Certificate is the final draft to be
drawn under the Letter of Credit, and, upon the honoring of such draft, the
Letter of Credit will expire in accordance with its terms.]
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
13
EXHIBIT 3
TO THE LETTER OF CREDIT
CERTIFICATE FOR INTEREST DRAWING
The undersigned, a duly authorized officer of , (the "Paying
Agent"), hereby certifies as follows to Swiss Bank Corporation, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
___________ (the "Letter of Credit") issued by the Bank in favor of the
Paying Agent. Terms defined in the Letter of Credit and used but not defined
herein shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a drawing under the Letter of Credit in the
amount of $ with respect to [the payment of interest] [the payment
of the portion of redemption price corresponding to interest] [the payment of
the portion of purchase price corresponding to interest] on Eligible Bonds in
accordance with the Indenture.
(3) The amount of [interest] [redemption price corresponding to interest]
[purchase price corresponding to interest] on Eligible Bonds that is due and
owing is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Interest:
(4) The amount of the draft accompanying this Certificate being drawn in
respect of payment of [interest] [redemption price corresponding to interest]
[purchase price corresponding to interest] on Eligible Bonds, as indicated in
paragraph (3), above, does not exceed the Interest Component of the Letter of
Credit. The amount of the draft accompanying this Certificate in respect of
payment of [interest] [redemption price corresponding to interest] [purchase
price corresponding to interest] on Eligible Bonds has been computed in
accordance with the terms and conditions of such Eligible Bonds and the
Indenture.
(5) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
<PAGE>
14
Title:
<PAGE>
15
EXHIBIT 4
TO THE LETTER OF CREDIT
NOTICE OF REDUCTION
The undersigned, a duly authorized officer of _____________________, (the
"Paying Agent"), hereby certifies as follows to Swiss Bank Corporation, New
York Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
_____________________ (the "Letter of Credit") issued by the Bank in favor of
the Paying Agent. Terms defined in the Letter of Credit and used but not
defined herein shall have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) As of the date hereof, the aggregate principal amount of Eligible
Bonds (including for this purpose all Pledged Bonds and all Company Bonds)
outstanding is
Principal: $
(3) You are hereby directed to reduce the [Principal] [Premium] [and]
[Interest] Components of the Letter of Credit as follows:
[The Principal Component of the Letter of Credit is reduced to $
.]
[The Premium Component of the Letter of Credit is reduced to $
.]
[The Interest Component of the Letter of Credit is reduced to $
.]
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
16
EXHIBIT 5
TO THE LETTER OF CREDIT
NOTICE OF REINSTATEMENT
The undersigned, a duly authorized officer of Swiss Bank Corporation, New
York Branch (the "Bank"), hereby gives the following notice to
_________________, as paying agent (the "Paying Agent"), with reference to
Irrevocable Letter of Credit No. __________________ (the "Letter of Credit")
issued by the Bank in favor of the Paying Agent. Terms defined in the Letter
of Credit and used but not defined herein have the meanings given them in the
Letter of Credit.
The Bank hereby notifies you that:
[1.] [Pursuant to Paragraph 5(i)(B) of the Letter of Credit and Section
2.04(b)(ii) of the Reimbursement Agreement, the Interest Component has
been reinstated by $________________.]
[2.] [Pursuant to Paragraph 5(ii)(B) of the Letter of Credit and Section
2.04(c) of the Reimbursement Agreement, the Principal Component has
been reinstated by $_________________.]
IN WITNESS WHEREOF, the Bank has executed and delivered this Notice of
Reinstatement as of the day of , 19
SWISS BANK CORPORATION,
NEW YORK BRANCH
By
Title:
<PAGE>
17
EXHIBIT 6
TO THE LETTER OF CREDIT
INSTRUCTIONS TO TRANSFER
, 19
Re: Irrevocable Letter of Credit
No. __________________
Gentlemen:
The undersigned, as Paying Agent under that certain Series E Loan and Trust
Agreement, dated as of May 1, 1991, as supplemented by a First Supplement
thereto dated as of December 1, 1993 and a Second Supplement thereto dated as
of May 1, 1995 (as so supplemented, the "Indenture"), by and among the
Business Finance Authority (formerly The Industrial Development Authority) of
the State of New Hampshire (the "Issuer"), Public Service Company of New
Hampshire and the State Street Bank and Trust Company, as Trustee, is named
as beneficiary in the Letter of Credit referred to above (the "Letter of
Credit"). The Transferee named below has succeeded the undersigned as Paying
Agent under such Indenture.
(Name of Transferee)
(Address)
Therefore, for value received, the undersigned hereby irrevocably instructs
you to transfer to such Transferee all rights of the undersigned to draw
under the Letter of Credit.
Such Transferee shall hereafter have the sole rights as beneficiary under
the Letter of Credit; provided, however, that no rights shall be deemed to
have been transferred to such Transferee until such transfer complies with
the requirements of the Letter of Credit pertaining to transfers.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the day of , 19 .
[NAME OF RETIRING PAYING AGENT],
as Paying Agent
By
Title:
<PAGE>
18
The undersigned, [Name of Transferee], hereby accepts the foregoing
transfer of rights under the Letter of Credit.
[Name of Transferee]
By
Title:
Address of Principal
Corporate Trust Office:
[insert address]
<PAGE>
1
EXHIBIT 1.01B to
Reimbursement Agreement
PARTICIPATION ASSIGNMENT
Dated _________________, 19__
Reference is made to the Second Series E Letter of Credit and Reimbursement
Agreement, dated as of May 1, 1995 (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being the "Agreement";
unless otherwise defined herein terms defined in the Agreement are used
herein with the same meaning), among Public Service Company of New Hampshire
(the "Account Party"), Swiss Bank Corporation, New York Branch ("Swiss
Bank"), as Issuing Bank, the Participating Banks named therein and from time
to time parties thereto, and Swiss Bank, as Agent. Pursuant to the
Agreement, ______________ (the "Assignor") has purchased a participation from
the Issuing Bank in and to the Letter of Credit and each payment thereunder
and demand loan made by the Issuing Bank and has committed to make Advances
to the Account Party.
The Assignor and ________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse to the Assignor that portion set forth in Section 1(c) of
Schedule 1 hereto (the "Assigned Interest") of the Assignor's rights and
obligations under the Agreement and the Pledge Agreement, including, without
limitation, the participation purchased by the Assignor pursuant to
Section 3.07 of the Agreement in respect of unreimbursed amounts and demand
loans owing from time to time to the Issuing Bank, the Commitment of the
Assignor to make Advances and the Advances outstanding on the Effective Date
(as hereinafter defined). Such Assigned Interest represents the percentage
interest specified in Section 2(b) of Schedule 1 of all outstanding rights
and obligations of the Participating Banks under the Agreement, and, after
giving effect to such sale and assignment, the Assignee's and Assignor's
Participation Percentages will be as set forth in Sections 2(b) and 2(c),
respectively, of Schedule 1. The effective date of this sale and assignment
shall be the date specified in Section 3 of Schedule 1 (the "Effective
Date").
2. On the Effective Date, the Assignee will pay to the Assignor, in same
day funds, at such address and account as the Assignor shall advise the
Assignee, an amount equal to (1) the aggregate amount of unreimbursed letter
of credit payments, demand loans and Advances outstanding (as set forth in
Section 1 of Schedule 1) times (2) the Assigned Interest. From and after the
Effective Date, the Assignor agrees that the Assignee shall be entitled to
all rights, powers and privileges of the Assignor under the Agreement and the
Pledge Agreement to the extent of the Assigned Interest, including without
limitation (i) the right to receive all payments in respect of the Assigned
Interest for the period from and after the Effective Date, whether on account
of reimbursements, principal, interest, fees, indemnities in respect of
claims arising after the Effective Date, increased costs, additional amounts
or otherwise; (ii) the right to vote and to instruct the Agent and the
Issuing Bank under the Agreement based on the Assigned Interest; (iii) the
right to set-off and to appropriate and apply deposits of the Account Party
<PAGE>
2
as set forth in the Agreement; and (iv) the right to receive notices,
requests, demands and other communications. The Assignor agrees that it will
promptly remit to the Assignee any amount received by it in respect of the
Assigned Interest (whether from the Account Party, the Agent or otherwise) in
the same funds in which such amount is received by the Assignor.
3. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or
the Related Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement, the Related Documents or
any other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of the Account Party or the performance or observance
by the Account Party of any of its obligations under the Agreement, the
Related Documents or any other instrument or document furnished pursuant
thereto.
4. The Assignee (i) confirms that it has received a copy of the
Agreement, together with copies of the financial statements referred to in
Section 6.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment; (ii) agrees that it will, independently and without reliance
upon the Agent, the Issuing Bank, the Assignor or any other Participating
Bank and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Agreement and the Related Documents; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Agreement and the Pledge Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with its terms all of the obligations which by the terms of the Agreement are
required to be performed by it as a Participating Bank and (v) confirms that
it has paid the processing fee referred to in subsection 10.06(b) of the
Agreement.
5. Following the execution of this Assignment, it will be delivered to
the Agent for acceptance and recording by the Agent. Upon such acceptance
and recording and receipt of the consent of the Issuing Bank required
pursuant to Section 10.06(b) of the Agreement (which shall be evidenced by
the Issuing Bank's execution of this Assignment on the appropriate space on
Schedule 1), as of the Effective Date, (i) the Assignee shall be a party to
the Agreement and, to the extent provided in this Assignment, have the rights
and obligations of a Participating Bank thereunder and under the Pledge
Agreement and (ii) the Assignor shall, to the extent provided in this
Assignment, relinquish its rights and be released from its obligations under
the Agreement and the Pledge Agreement.
6. Upon such acceptance, recording and consent, from and after the
Effective Date, the Agent shall make all payments under the Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the
Assignee at its address set forth on Schedule 1 hereto. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
<PAGE>
3
Agreement for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. This Assignment may be executed in counterparts by the parties hereto,
each of which counterpart when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written, such execution being made on Schedule 1 hereto.
<PAGE>
4
Schedule 1
to
Participation Assignment
Dated ____________, 19__
Section 1.
(a) Total Unreimbursed
Payments and demand loans $__________
(b) Total Advances: $__________
(c) Assigned Interest:1 __________%
Section 2.
(a) Assignor's Participation
Percentage (immediately
prior to the effectiveness
of this Assignment) ___________%
(b) Assignee's Participation
Percentage2 (upon the
effectiveness of this
Assignment) ___________%
(c) Assignor's Participation
Percentage2 (upon
the effectiveness of
this Assignment) ___________%
Section 3.
Effective Date:3__________, 19__
[NAME OF ASSIGNOR]
By______________________________
Title:
[NAME OF ASSIGNEE]
By______________________________
Title:
[Address]
Telecopier No._______________
1
Specify percentage to no more than 8 decimal points.
2
The sum of the percentages set forth in Section 2(b) and (c) shall
equal the percentage set forth in Section 2(a).
3
Such date shall be at least 5 Business Days after the execution of
this Assignment.
<PAGE>
5
Attention:___________________
Consented to and Accepted this __ day 4
of _____________, ___
SWISS BANK CORPORATION,
NEW YORK BRANCH, as
Issuing Bank and as Agent
By__________________________
Title:
By__________________________
Title:
4
Not to be accepted without proof of Account Party's consent pursuant
to Section 10.06(b) of the Reimbursement Agreement.
<PAGE>
6
APPLICABLE LENDING OFFICES
The Assignee's Applicable Lending Offices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
<PAGE>
1
EXHIBIT 1.01C to
Reimbursement Agreement
FIRST AMENDMENT
TO
SERIES E PLEDGE AGREEMENT
This FIRST AMENDMENT, dated as of May 1, 1995 (this "Amendment"), to the
SERIES E PLEDGE AGREEMENT, dated as of May 1, 1991 ("the Existing Agreement",
and, as amended by this Amendment, the "Amended Agreement") is made by and
among:
(i) Public Service Company of New Hampshire, a corporation duly organized
and validly existing under the laws of the State of New Hampshire (the
"Account Party");
(ii) Citibank, N.A., as the "Issuing Bank" under the Existing Agreement
(the "Retiring Issuing Bank"); and
(iii) Swiss Bank Corporation, New York Branch ("Swiss Bank"), as the
"Issuing Bank" under the Reimbursement Agreement hereinafter
referred to (the "Issuing Bank");
for the benefit of the Issuing Bank and
(iv) The Agent (as defined therein) and the Participating Banks (as defined
therein) from time to time party to such Reimbursement Agreement.
PRELIMINARY STATEMENT
The Business Finance Authority (formerly The Industrial Development
Authority) of the State of New Hampshire (the "Issuer") has issued, pursuant
to a Series E Loan and Trust Agreement, dated as of May 1, 1991 (as
supplemented by a First Supplement thereto dated as of December 1, 1993, a
Second Supplement thereto, dated as of May 1, 1995 and as further
supplemented or amended from time to time with the written consent of the
Issuing Bank, the "Indenture"), by and among the Issuer, the Account Party
and State Street Bank and Trust Company, as trustee (such entity, or its
successor as trustee, being the "Trustee"), $69,700,000 aggregate principal
amount of The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series E) and $44,800,000 aggregate principal amount
of Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service Company of New Hampshire Project -
1993 Tax-Exempt Series E) (such Bonds, together with any further Tax-Exempt
Refunding Bonds (as defined in the Indenture) issued to refund such bonds as
provided in Article IV of the Indenture, being hereinafter referred to,
collectively, as the "Bonds").
Pursuant to the Indenture, the Account Party has previously caused the
Retiring Issuing Bank to issue the letter of credit referred to therein in
favor of the Paying Agent described therein. For the purposes stated in the
<PAGE>
2
recitals to the Existing Agreement, the Account Party has previously entered
into the Existing Agreement and pledged the Pledged Collateral (as defined in
the Existing Agreement) to the Retiring Issuing Bank.
In accordance with the Indenture, the Account Party now wishes to replace
the letter of credit issued by the Issuing Bank for the letter of credit
previously issued by it, and in furtherance thereof, the Account Party has
requested the Issuing Bank to issue its irrevocable letter of credit in favor
of the Paying Agent. The Issuing Bank has agreed to issue such replacement
letter of credit subject to the terms and conditions set forth in that
certain Second Series E Letter of Credit and Reimbursement Agreement, of even
date herewith, among the Account Party, the Issuing Bank, the Agent and the
Participating Banks referred to therein and relating to the Bonds (said
Second Series E Letter of Credit and Reimbursement Agreement, as it may be
hereafter be amended, modified or supplemented from time to time, being
hereinafter referred to as the "Reimbursement Agreement").
It is a condition precedent to the obligation of the Issuing Bank to issue
such letter of credit and of the Participating Banks to make the Advances
described in the Reimbursement Agreement that the parties execute and deliver
this Amendment;
NOW THEREFORE, the Account Party, the Retiring Issuing Bank and the Issuing
Bank hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Definitions. For the purposes of this Amendment and the
Amended Agreement, terms defined in the Reimbursement Agreement and used but
not otherwise defined in this Amendment have the meanings given them in the
Reimbursement Agreement.
ARTICLE II.
ASSIGNMENT
In consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Retiring Issuing
Bank hereby assigns, transfers, sets over and conveys, to the Issuing Bank
for the benefit of the Agent and the Participating Banks, without recourse of
any kind, all of the Retiring Issuing Bank's right, title and interest in and
to the Existing Agreement, the security interests created thereby and the
Pledged Collateral described therein. The Retiring Issuing Bank further
agrees to execute and deliver all such other documents and to take all such
other actions, as in each case may be reasonably requested by the Issuing
Bank to further evidence or perfect the foregoing assignment; provided,
however, that the Retiring Issuing Bank shall not be required to incur any
liability or expend any funds in connection with the foregoing unless
indemnified to its reasonable satisfaction. By execution and delivery of
this Amendment, (i) the Issuing Bank hereby accepts such assignment, transfer
and conveyance and (ii) the Account Party consents thereto.
<PAGE>
3
ARTICLE III.
AMENDMENTS TO EXISTING AGREEMENT
SECTION 3.01. Restatement of Grant of Security Interest. Section 1 of the
Existing Agreement is hereby amended and restated to read in its entirety as
follows:
SECTION 1. Pledge. The Account Party hereby pledges to the Issuing
Bank for the benefit of the Agent and the Participating Banks, and grants
to the Issuing Bank for the benefit of the Agent and the Participating
Banks a security interest in, the following (the "Pledged Collateral"):
(i) the Pledged Bonds (as defined in the Indenture) and the
instruments, if any, evidencing the Pledged Bonds, and all interest,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Bonds; and
(ii) all proceeds (other than the proceeds of the initial sale
upon issuance of the Pledged Bonds) of any and all of the foregoing
collateral (including, without limitation, proceeds that constitute
property of the types described above).
SECTION 3.02. Restatement of Security for Obligations. Section 2 of the
Existing Agreement is hereby amended and restated to read in its entirety as
follows:
SECTION 2. Security for Obligations. This Agreement secures the
payment of all obligations of the Account Party now or hereafter existing
under the Reimbursement Agreement, whether for reimbursement, principal,
interest, fees, expenses or otherwise, and all obligations of the Account
Party now or hereafter existing under this Agreement (all such obligations
of the Account Party being the "Obligations"). Without limiting the
generality of the foregoing, this Agreement secures the payment of all
amounts which constitute part of the Obligations and would be owed by the
Account Party to the Issuing Bank, the Agent or any Participating Bank
under the Reimbursement Agreement but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Account Party.
SECTION 3.03. Delivery of Pledged Collateral. Section 3 of the Existing
Agreement is hereby amended by adding at the end thereof a new subsection (c)
to read in its entirety as follows:
(c) Notwithstanding the foregoing subsection (a), if and for so long
as the Bonds are to be held in the Book-Entry Only System (as defined in
the Indenture), the Account Party's obligations under such subsection shall
be deemed satisfied if such Pledged Bonds are (i) registered in the name of
DTC in accordance with the Book-Entry Only System (as those terms are
defined in the Indenture), (ii) credited on the books of DTC to the account
of the Paying Agent (or its nominee) and (iii) further credited on the
<PAGE>
4
books of the Paying Agent (or such nominee) to the account of the Issuing
Bank (or its nominee).
SECTION 3.04. Certain Cross-References. The references in Sections 9 and
11(b) of the Existing Agreement to "Section 9.04 of the Reimbursement
Agreement" are hereby amended by substituting therefor the words "Section
10.04 of the Reimbursement Agreement".
SECTION 3.05. Restatement of Section 12. Section 12 of the Existing
Agreement is hereby amended and restated to read in its entirety as follows:
SECTION 12. Continuing Security Interest; Assignments. This
Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until the later of
(x) the payment in full of the Obligations and all other amounts payable
under this Agreement and (y) the expiration or termination of the
Commitments, (ii) be binding upon the Account Party, its successors and
assigns, and (iii) inure to the benefit of, and be enforceable by, the
Issuing Bank, the Agent, the Participating Banks and their respective
successors, transferees and assigns. Without limiting the generality of
the foregoing clause (iii), any Participating Bank may, subject to Section
10.06 of the Reimbursement Agreement, assign or otherwise transfer all or
any portion of its rights and obligations under the Reimbursement Agreement
(including, without limitation, all or any portion of its Commitment and
the Advances owing to it) to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in
respect thereof granted to such Participating Bank herein or otherwise.
Upon the later of the payment in full of the Obligations and all other
amounts payable under this Agreement and the expiration or termination of
the Commitments, the security interest granted hereby shall terminate and
all rights to the Pledged Collateral shall revert to the Account Party.
Upon any such termination, the Issuing Bank will, at the Account Party's
expense, return to the Account Party such of the Pledged Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof
and execute and deliver to the Account Party such documents as the Account
Party shall reasonably request to evidence such termination.
SECTION 3.06. Certain Other References Deemed Amended. Upon the
effectiveness of this Amendment, (x) each reference in the Existing Agreement
to "the Reimbursement Agreement", "the Series E Reimbursement Agreement",
"thereunder", "thereof" or words of like import referring to the Existing
Reimbursement Agreement, shall mean and be a reference to the Reimbursement
Agreement, (y) each reference in the Existing Agreement to "the Issuing
Bank", "the Agent", or "the Participating Banks", shall mean and be a
reference to the Issuing Bank, the Agent and the Participating Banks,
respectively, as defined in the Reimbursement Agreement and (z) each
reference in the Existing Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Existing Agreement, and
each reference in the Related Documents to "the Pledge Agreement", "the
Series E Pledge Agreement", "thereunder", "thereof" or words of like import
referring to the Existing Agreement, shall mean and be a reference to the
Amended Agreement.
<PAGE>
5
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. Effectiveness; Effect on Existing Agreement. This Amendment
shall become effective when, and only when, (a) the Agent shall have received
counterparts of this Amendment duly executed by all the parties hereto and
(b) the Letter of Credit shall have been issued pursuant to the Reimbursement
Agreement. Except as expressly amended hereby, all provisions of the
Existing Agreement shall remain in full force and effect and are hereby in
all respects ratified and confirmed.
SECTION 4.02. Counterparts. This Amendment may be executed in
counterparts, and such counterparts taken together shall be deemed to
constitute one and the same agreement.
<PAGE>
6
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the date first above written.
PUBLIC SERVICE COMPANY
OF NEW HAMPSHIRE
By
Title:
CITIBANK, N.A., as Retiring Issuing Bank
By
Title:
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Issuing Bank and as Agent
By
Title:
By
Title:
SIGNATURE PAGE TO SERIES E PLEDGE AMENDMENT
<PAGE>
EXHIBIT 5.01A to
Reimbursement Agreement
May 2, 1995
Business Finance Authority
of the State of New Hampshire
4 Park Street
Concord, New Hampshire 03301
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Swiss Bank Corporation, New York Branch,
as Issuing Bank and Agent under the Reimbursement
Agreement referred to below, and each
Participating Bank thereunder
c/o Swiss Bank Corporation, New York Branch
222 Broadway
New York, New York 10038
Re: $69,700,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series E)
$44,800,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1993 Tax-Exempt Series E)
Ladies and Gentlemen:
We have acted as counsel to Public Service Company of New Hampshire (the
"Company") and we are rendering this opinion to you in connection with the
transactions contemplated by (i) the Second Series E Letter of Credit and
Reimbursement Agreement dated as of May 1, 1995 (the "Reimbursement
Agreement"), among the Company, Swiss Bank Corporation, New York Branch, as
the Issuing Bank (the "Issuing Bank") and the Agent (the "Agent") thereunder,
and the Participating Banks referred to therein, pursuant to which the
Issuing Bank is issuing an Irrevocable Letter of Credit dated the date hereof
(the "Letter of Credit") in support of the $69,700,000 The Industrial
Development Authority of the State of New Hampshire Pollution Control Revenue
Bonds (Public Service Company of New Hampshire Project - 1991 Taxable Series
E) (the "Taxable Bonds") and the $44,800,000 Business Finance Authority of
the State of New Hampshire Pollution Control Refunding Revenue Bonds (Public
Service Company of New Hampshire Project - 1993 Tax-Exempt Series E) (the
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 2
"Tax-Exempt Bonds" and, collectively with the Taxable Bonds, the "Bonds"),
(ii) the Second Supplement dated as of May 1, 1995 (the "Second Supplement"),
to the Series E Loan and Trust Agreement dated as of May 1, 1991, as
previously supplemented by the First Supplement dated as of December 1, 1993
(the "First Supplement," such Series E Loan and Trust Agreement as so
supplemented by the First Supplement, the "Original Loan and Trust
Agreement," and such Series E Loan and Trust Agreement as so supplemented by
the First Supplement and the Second Supplement, the "Loan and Trust
Agreement"), among the Business Finance Authority of the State of New
Hampshire (formerly known as The Industrial Development Authority of the
State of New Hampshire), the Company, and State Street Bank and Trust
Company, as trustee, and (iii) the First Amendment dated as of May 1, 1995
(the "First Pledge Amendment"), among the Company, Citibank, N.A., the
Issuing Bank, and the Agent to the Series E Pledge Agreement dated as of May
1, 1991, between the Company and Citibank, N.A. (such Series E Pledge
Agreement as so amended by the First Pledge Amendment, the "Pledge
Agreement"). Capitalized terms used herein and not otherwise defined are
used as defined in the Reimbursement Agreement.
In connection with this opinion, we have examined:
(1) The Reimbursement Agreement, the Second Supplement, and the
Pledge Agreement (the "Documents").
(2) The Letter of Credit.
(3) The Original Loan and Trust Agreement.
(4) The First Mortgage Indenture and the Series G First Mortgage
Bonds.
(5) The Official Statement dated May 15, 1991, with respect to the
Taxable Bonds and certain other bonds, including the Appendices thereto, as
supplemented by the Supplement thereto dated October 1, 1992 (the "Original
Taxable Official Statement"), and the Supplement dated May 2, 1995, to the
Original Taxable Official Statement, including the Appendices thereto (the
"Taxable Supplement" and the Original Taxable Official Statement as
supplemented by the Taxable Supplement, the "Taxable Official Statement").
(6) The Official Statement dated December 14, 1993, with respect to
the Tax-Exempt Bonds, including the Appendices thereto (the "Original Tax-
Exempt Official Statement"), and the Supplement dated May 2, 1995, to the
Original Tax-Exempt Official Statement, including the Appendices thereto
(the "Tax-Exempt Supplement" and the Original Tax-Exempt Official Statement
as supplemented by the Tax-Exempt Supplement, the "Tax-Exempt Official
Statement").
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 3
(7) The articles of incorporation of the Company and all amendments
thereto (the "Charter") and the by-laws of the Company and all amendments
thereto (the "By-laws"), in each case as in effect on the date hereof.
(8) The other documents furnished by the Company pursuant to
Section 5.01 of the Reimbursement Agreement.
(9) A certificate of the Secretary of the State of the State of
Connecticut dated ____________ __, 1995, attesting to the qualification as
a foreign corporation and good standing of the Company in the State of
Connecticut.
In addition, we have examined originals, or copies certified to our
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments,
and other documents, as we have deemed necessary as a basis for the opinions
expressed below. In our examination of such agreements, instruments, and
documents, we have assumed the genuineness of all signatures (other than
those of the Company), the authenticity of all agreements, instruments, and
documents submitted to us as originals, and the conformity to original
agreements, instruments, and documents of all agreements, instruments, and
documents submitted to us as certified, conformed, or photostatic copies and
the authenticity of the originals of such copies. As to questions of fact
material to such opinions, we have assumed without verification and relied
upon the accuracy of the representations as to factual matters set forth in
the Documents and in certificates of the Company or its officers or of public
officials. Nothing has come to our attention, however, calling into question
the accuracy of such representations.
The opinions set forth below are subject to the following qualifications:
(A) No opinion is expressed with respect to laws other than those
of (i) the United States of America, (ii) the State of New Hampshire, (iii)
the State of Connecticut, (iv) the State of Maine, (v) the State of
Vermont, and (vi) the State of New York.
(B) In rendering the opinions contained in Paragraphs 2(b)(iii), 6,
and 7 below, we have relied, with your consent, solely on the opinion of
Jeffrey C. Miller, Esq., Assistant General Counsel of Northeast Utilities
Service Company ("NUSCO"), a service company affiliate of the Company,
dated the date hereof, and such opinions in Paragraphs 2(b)(iii), 6, and 7
below are subject to the qualifications set forth in such opinion of Mr.
Miller. In rendering the opinions contained in Paragraphs 1, 2(a),
2(b)(ii), 3, 4, 5, and 8 below as to matters governed by the laws of the
State of New Hampshire, we have relied, with your consent, solely upon the
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 4
opinion of Rath, Young and Pignatelli, P.A. dated the date hereof, and such
opinions in Paragraphs 1, 2(a), 2(b)(ii), 3, 4, 5, and 8 below as to
matters governed by such laws are subject to the qualifications set forth
in such opinion of Rath, Young and Pignatelli, P.A. In rendering the
opinions contained in Paragraphs 1, 2(b)(ii), and 4 below as to matters
governed by the laws of the State of Maine, we have relied, with your
consent, solely upon the opinion of Drummond Woodsum & MacMahon dated the
date hereof, and such opinions in Paragraphs 1, 2(b)(ii), and 4 below as to
matters governed by such laws are subject to the qualifications set forth
in such opinion of Drummond Woodsum & MacMahon. In rendering the opinions
contained in Paragraphs 1, 2(b)(ii), and 4 below as to matters governed by
the laws of the State of Vermont, we have relied, with your consent, solely
upon the opinion of Zuccaro, Willis & Bent dated the date hereof, and such
opinions in Paragraphs 1, 2(b)(ii), and 4 below as to matters governed by
such laws are subject to the qualifications set forth in such opinion of
Zuccaro, Willis & Bent. We believe that we are justified in relying on
such opinions of Mr. Miller and such other firms.
(C) Our opinion in Paragraph 5 below (i) is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law), and to the effect
of certain laws and judicial decisions that may affect the enforceability
of certain rights and remedies provided in the documents referred to
therein, none of which laws and judicial decisions, however, will make the
rights and remedies provided in such documents inadequate for the practical
realization of the benefits provided therein and (ii) assumes the binding
effect of all documents referred to therein on all parties thereto other
than the Company.
(D) We note further that, in addition to the effect of general
principles of equity described in subparagraph (C) above, courts have
imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties
seeking to obtain indemnification against violations of securities laws or
under circumstances where the conduct of such parties in the circumstances
in question is determined to have constituted negligence.
(E) We express no opinion herein as to (i) Section 10.05 of the
Reimbursement Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, and (iv)
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 5
the enforceability of waivers by parties of their respective rights and
remedies under law.
(F) We express no opinion as to the validity, perfection, or
priority of any security interest or lien created or granted under any of
the Documents.
(G) With respect to our opinion in Paragraph 8 below, we have
assumed (or, in the case of clause (ii) below, have relied on the fact)
that (i) the Issuing Bank's, the Agent's, and each Participating Bank's
decision to enter into the transactions contemplated by the Reimbursement
Agreement was not made in the State of Connecticut, (ii) the execution and
delivery of the Letter of Credit and the Reimbursement Agreement by the
Issuing Bank, the Agent, and each Participating Bank did not take place in
the State of Connecticut, (iii) any funds disbursed by the Issuing Bank,
the Agent, or any Participating Bank pursuant to the Letter of Credit or
the Reimbursement Agreement will be disbursed from outside of the State of
Connecticut, (iv) all payments to the Issuing Bank, the Agent, or any
Participating Bank pursuant to the Reimbursement Agreement will be made to
a bank account or bank accounts established at a branch office or branch
offices located outside of the State of Connecticut, and (v) neither the
Issuing Bank, the Agent, nor any Participating Bank has an office in
Connecticut or has officers or agents in Connecticut for the solicitation
of business.
(H) With respect to our opinion in Paragraph 8 below, our opinion
is limited solely to the transactions contemplated by the Reimbursement
Agreement and we express no opinion as to any other business or
transactions in which the Issuing Bank, the Agent, or any Participating
Bank may engage in the State of Connecticut or the State of New Hampshire.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Hampshire and has
the requisite corporate power and authority to own its property and assets
and to carry on its business as now conducted in the State of New
Hampshire. The Company is duly qualified to do business in, and is in good
standing in, the State of Connecticut, the State of Maine, the State of
Vermont, and all other jurisdictions where the nature of its business or
the nature of property owned or used by it makes such qualification
necessary.
2. The execution, delivery, and performance by the Company of the
Documents (a) are within the Company's corporate powers and have been duly
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 6
authorized by all necessary corporate or other similar action and (b) do
not and will not contravene (i) the Company's Charter or By-laws, (ii) any
law, or (iii) to the best of our knowledge, any contractual restriction
contained in any material agreement binding on or affecting the Company.
3. The Documents have been duly executed and delivered by the
Company.
4. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body (other than in connection with
or in compliance with the provisions of the state securities or "Blue Sky"
laws of any jurisdiction, as to which we express no opinion) is required to
be obtained or made in connection with the execution, delivery, or
performance by the Company of the Documents or the grant and perfection of
any security interest contemplated by the Pledge Agreement, except for
those that have been obtained or made and are in full force and effect, and
any post-closing filings required thereby, and the transactions
contemplated by the Documents may be validly consummated prior to the
expiration of the rehearing period described in Schedule II of the
Reimbursement Agreement.
5. The Documents are the legal, valid, and binding obligations of
the Company enforceable against the Company in accordance with their
respective terms. Upon execution and delivery by the parties thereto, the
Reimbursement Agreement and the Letter of Credit will be, without further
act or deed on the part of any person, the "Series E PCRB Reimbursement
Agreement" and the "Series E PCRB Credit Facility," respectively, as those
terms are used in the Series G First Mortgage Bonds and will be secured by
and entitled to benefits of the Series G First Mortgage Bonds and the First
Mortgage Indenture.
6. There is no pending or, to the best of our knowledge,
threatened action or proceeding affecting the Company or its properties
before any court, governmental agency, or arbitrator (a) which affects or
purports to affect the legality, validity or enforceability of the
Documents or (b) as to which there is a reasonable possibility of an
adverse determination and which, if adversely determined, would materially
adversely affect the financial condition, properties, or operations of the
Company, except, for purposes of this clause (b) only, such as is descri-
bed in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
7. All outstanding shares of capital stock having ordinary voting
power for the election of directors of the Company are owned of record and
beneficially by Northeast Utilities ("NU"), free and clear of any Lien. NU
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 7
is a "holding company" (as defined in the Public Utility Holding Company
Act of 1935, as amended).
8. Neither the Issuing Bank, the Agent, nor any Participating Bank
is required to qualify to do business in the State of Connecticut or the
State of New Hampshire, or to comply with the requirement of any foreign
lender statute in the State of Connecticut or the State of New Hampshire,
by virtue solely of the execution, delivery, performance, or enforcement of
the Letter of Credit or the Reimbursement Agreement or as a condition or
requirement to avail itself of the remedies provided by the Reimbursement
Agreement, the Pledge Agreement, or any of the other Loan Documents.
9. All conditions precedent to the execution and delivery of the
Second Supplement under the Original Loan and Trust Agreement, if any, have
been satisfied and such execution and delivery is permitted under the
Original Loan and Trust Agreement.
We have considered the matters included in the Taxable Official Statement
and the Tax-Exempt Official Statement and the information contained therein.
In our opinion, the statements in (i) the Taxable Official Statement under
the captions "The 1995 Letters of Credit," "The 1995 Reimbursement
Agreements," "The Bonds," "The Loan Agreements," and "The First Mortgage
Bonds" and (ii) the Tax-Exempt Official Statement under the captions "The
1995 Letter of Credit," "The 1995 Reimbursement Agreement," "The 1993 Bonds"
(other than under the subcaption "Book-Entry Only System," as to which we
express no opinion), "The Loan Agreement," and "The Series G First Mortgage
Bonds and the First Mortgage Indenture," insofar as such statements
constitute a summary of the legal matters, documents, or proceedings referred
to therein, fairly present the information shown with respect to such legal
matters, documents, or proceedings. The Loan and Trust Agreement, the Letter
of Credit, the Reimbursement Agreement, the Series G First Mortgage Bonds,
the First Mortgage Indenture, and the Bonds conform to the descriptions
thereof contained in the Taxable Official Statement and the Tax-Exempt
Official Statement.
We have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the Taxable
Official Statement or the Tax-Exempt Official Statement, except as stated in
the preceding paragraph. We have generally reviewed and discussed with
certain officers and employees of, and counsel and independent public
accountants for, the Company and NUSCO the information furnished, whether or
not subject to our check and verification. On the basis of such
consideration, review, and discussion, but without independent check or
verification (except as stated in the preceding paragraph), we believe that
(except for (i) the financial statements and other financial or statistical
information contained in the Taxable Official Statement, in the Tax-Exempt
<PAGE>
Business Finance Authority
of the State of New Hampshire
State Street Bank and Trust Company
Morgan Stanley & Co. Incorporated
Swiss Bank Corporation, New York Branch, et al.
May 2, 1995
Page 8
Official Statement, or in the documents incorporated by reference therein and
(ii) Appendix B, Appendix C, and Appendix D to the Original Taxable Official
Statement, Appendix B and Appendix C to the Original Tax-Exempt Official
Statement, Appendix B to the Taxable Supplement, and Appendix B to the Tax-
Exempt Supplement, as to which we express no belief), the Taxable Official
Statement and the Tax-Exempt Official Statement did not as of the dates
thereof, and the Taxable Official Statement and the Tax-Exempt Official
Statement do not as of the date hereof, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
All counsel rendering opinions in connection with the transactions
contemplated by the Documents may, in rendering such opinions, rely on this
opinion as if it were addressed specifically to them.
Very truly yours,
RJW:BMC
<PAGE>
EXHIBIT 5.01B to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $69,700,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series E)
$44,800,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1993 Tax-Exempt Series E)
Ladies and Gentlemen:
We have acted as special New Hampshire counsel to Public Service Company of
New Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series E
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Swiss Bank Corporation, New
York Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the
"Agent") thereunder, and the Participating Banks referred to therein,
pursuant to which the Issuing Bank is issuing an Irrevocable Letter of Credit
dated the date hereof (the "Letter of Credit") in support of the $69,700,000
The Industrial Development Authority of the State of New Hampshire Pollution
Control Revenue Bonds (Public Service Company of New Hampshire Project - 1991
Taxable Series E) and the $44,800,000 Business Finance Authority of the State
of New Hampshire Pollution Control Refunding Revenue Bonds (Public Service
Company of New Hampshire Project - 1993 Tax-Exempt Series E), (ii) the Second
Supplement dated as of May 1, 1995 (the "Second Supplement"), to the Series E
Loan and Trust Agreement dated as of May 1, 1991, as previously supplemented
by the First Supplement dated as of December 1, 1993 (the "First Supplement"
and such Series E Loan and Trust Agreement as so supplemented by the First
Supplement, the "Original Loan and Trust Agreement,"), among the Business
Finance Authority of the State of New Hampshire (formerly known as The
Industrial Development Authority of the State of New Hampshire), the Company,
and State Street Bank and Trust Company, as trustee, and (iii) the First
Amendment dated as of May 1, 1995 (the "First Pledge Amendment"), among the
Company, Citibank, N.A., the Issuing Bank, and the Agent to the Series E
Pledge Agreement dated as of May 1, 1991, between the Company and Citibank,
N.A. (such Series E Pledge Agreement as so amended by the First Pledge
Amendment, the "Pledge Agreement"). Capitalized terms used herein and not
otherwise defined are used as defined in the Reimbursement Agreement.
In connection with this opinion, we have examined:
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
(1) The Reimbursement Agreement, the Second Supplement, and the
Pledge Agreement (the "Documents").
(2) The Letter of Credit.
(3) The Original Loan and Trust Agreement.
(4) The First Mortgage Indenture and the Series G First Mortgage
Bonds.
(5) The articles of incorporation of the Company and all amendments
thereto and the by-laws of the Company and all amendments thereto, in each
case as in effect on the date hereof.
(6) A certificate of the Secretary of State of the State of New
Hampshire dated ____________ __, 1995, attesting to the continued corporate
existence and good standing of the Company in the State of New Hampshire.
In addition, we have examined originals, or copies certified to our
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments,
and other documents, as we have deemed necessary as a basis for the opinions
expressed below. In our examination of such agreements, instruments, and
documents, we have assumed the genuineness of all signatures (other than
those of the Company), the authenticity of all agreements, instruments, and
documents submitted to us as originals, and the conformity to original
agreements, instruments, and documents of all agreements, instruments, and
documents submitted to us as certified, conformed, or photostatic copies and
the authenticity of the originals of such copies. As to questions of fact
material to such opinions, we have assumed without verification and relied
upon the accuracy of the representations as to factual matters set forth in
the Documents and in certificates of the Company or its officers or of public
officials. Nothing has come to our attention, however, calling into question
the accuracy of such representations.
The opinions set forth below are subject to the following qualifications:
(A) No opinion is expressed with respect to laws other than those
of the State of New Hampshire. In this regard with respect to our opinion
in Paragraph 5 below, we note that the Reimbursement Agreement and the
Pledge Agreement provide that they are governed by New York law, and we are
providing no opinion with respect to the law of the State of New York.
(B) In rendering the opinion contained in the second sentence of
Paragraph 5 below, we have relied with your consent upon your opinion dated
May 16, 1991 with respect to (i) the due issuance of the Series G First
Mortgage Bonds and (ii) the conclusion that the Series G First Mortgage
Bonds were valid and binding obligations of the Company entitled to the
benefits of the First Mortgage Indenture as of their execution and delivery
by the Company on May 16, 1991, and our opinion in the second sentence of
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 3
Paragraph 5 below is subject to the qualifications set forth in your
opinion.
(C) Our opinion in Paragraph 5 below (i) is subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar law affecting creditors' rights generally, to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law), and to the effect
of certain laws and judicial decisions that may affect the enforceability
of certain rights and remedies provided in the documents referred to
therein, none of which laws and judicial decisions, however, will make the
rights and remedies provided in such documents inadequate for the practical
realization of the benefits provided therein and (ii) assumes the binding
effect of all documents referred to therein on all parties thereto other
than the Company.
(D) We note further that, in addition to the effect of general
principles of equity described in subparagraph (C) above, courts have
imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may
also apply public policy considerations in limiting the right of parties
seeking to obtain indemnification against violations of securities laws or
under circumstances where the conduct of such parties in the circumstances
in question is determined to have constituted negligence.
(E) We express no opinion herein as to (i) Section 10.05 of the
Reimbursement Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, and (iv)
the enforceability of waivers by parties of their respective rights and
remedies under law.
(F) We express no opinion as to the validity, perfection, or
priority of any security interest or lien created or granted under any of
the Documents.
(G) With respect to our opinion in Paragraph 6 below, our opinion
is limited solely to the transactions contemplated by the Reimbursement
Agreement, and we express no opinion as to any other business or
transactions in which the Issuing Bank, the Agent, or any Participating
Bank may engage in the State of New Hampshire.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Hampshire and has
the requisite corporate power and authority to own its property and assets
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 4
and to carry on its business as now conducted in the State of New
Hampshire.
2. The execution, delivery, and performance by the Company of the
Documents are within the Company's corporate powers, have been duly
authorized by all necessary corporate or other similar action and do not
and will not contravene any law of the State of New Hampshire.
3. The Documents have been duly executed and delivered by the
Company.
4. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of New Hampshire
(other than in connection with or in compliance with the provisions of the
state securities or "Blue Sky" laws of any jurisdiction, as to which we
express no opinion) is required to be obtained or made in connection with
the execution, delivery, or performance by the Company of the Documents or
the grant and perfection of any security interest contemplated by the
Pledge Agreement, except for those that have been obtained or made and are
in full force and effect, and any post-closing filings required thereby,
and the transactions contemplated by the Documents may be validly
consummated prior to the expiration of the rehearing period described in
Schedule II of the Reimbursement Agreement.
5. The Documents are the legal, valid, and binding obligations of
the Company enforceable against the Company in accordance with their
respective terms. Upon execution and delivery by the parties thereto, the
Reimbursement Agreement and the Letter of Credit will be, without further
act or deed on the part of any person, the "Series E PCRB Reimbursement
Agreement" and the "Series E PCRB Credit Facility," respectively, as those
terms are used in the Series G First Mortgage Bonds and will be secured by
and entitled to benefits of the Series G First Mortgage Bonds and the First
Mortgage Indenture.
6. Neither the Issuing Bank, the Agent, nor any Participating Bank
is required to qualify to do business in the State of New Hampshire, or to
comply with the requirement of any foreign lender statute in the State of
New Hampshire, by virtue solely of the execution, delivery, performance, or
enforcement of the Letter of Credit or the Reimbursement Agreement or as a
condition or requirement to avail itself of the remedies provided by the
Reimbursement Agreement, the Pledge Agreement, or any of the other Loan
Documents.
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 5
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
RATH, YOUNG AND PIGNATELLI, P.A.
By:_____________________________
William F. J. Ardinger
<PAGE>
EXHIBIT 5.01C to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $69,700,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series E)
$44,800,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1993 Tax-Exempt Series E)
Ladies and Gentlemen:
I am Assistant General Counsel of Northeast Utilities Service Company, a
service company affiliate of Public Service Company of New Hampshire (the
"Company"). I am rendering this opinion to you in connection with the
transactions contemplated by (i) the Second Series E Letter of Credit and
Reimbursement Agreement dated as of May 1, 1995 (the "Reimbursement
Agreement"), among the Company, Swiss Bank Corporation, New York Branch, as
the Issuing Bank (the "Issuing Bank") and the Agent (the "Agent") thereunder,
and the Participating Banks referred to therein, pursuant to which the
Issuing Bank is issuing an Irrevocable Letter of Credit dated the date hereof
in support of the $69,700,000 The Industrial Development Authority of the
State of New Hampshire Pollution Control Revenue Bonds (Public Service
Company of New Hampshire Project - 1991 Taxable Series E) (the "Taxable
Bonds") and the $44,800,000 Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds (Public Service Company
of New Hampshire Project - 1993 Tax-Exempt Series E) (the "Tax-Exempt
Bonds"), (ii) the Second Supplement dated as of May 1, 1995 (the "Second
Supplement"), to the Series E Loan and Trust Agreement dated as of May 1,
1991, as previously supplemented by the First Supplement dated as of December
1, 1993, among the Business Finance Authority of the State of New Hampshire
(formerly known as The Industrial Development Authority of the State of New
Hampshire), the Company, and State Street Bank and Trust Company, as trustee,
and (iii) the First Amendment dated as of May 1, 1995 (the "First Pledge
Amendment"), among the Company, Citibank, N.A., the Issuing Bank, and the
Agent to the Series E Pledge Agreement dated as of May 1, 1991, between the
Company and Citibank, N.A. (such Series E Pledge Agreement as so amended by
the First Pledge Amendment, the "Pledge Agreement" and the Reimbursement
Agreement, the Second Supplement, and the Pledge Agreement, collectively, the
"Documents"). Capitalized terms used herein and not otherwise defined are
used as defined in the Reimbursement Agreement.
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
In connection with this opinion, I have examined or caused to be examined
by counsel associated with or engaged by me, including counsel who are
employed by the Company, originals, or copies certified to my satisfaction,
of such corporate records of the Company, certificates of public officials
and of officers of the Company, and agreements, instruments, and other
documents, as I have deemed necessary as a basis for the opinions expressed
below. In my examination of such agreements, instruments, and documents, I
have assumed the genuineness of all signatures, the authenticity of all
agreements, instruments, and documents submitted to me as originals, and the
conformity to original agreements, instruments, and documents of all
agreements, instruments, and documents submitted to me as certified,
conformed, or photostatic copies and the authenticity of the originals of
such copies.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of (i) the United
States of America and (ii) the State of New Hampshire. I am a member of the
bar of the State of New York. I am not a member of the bar of the State of
New Hampshire, and do not hold myself out as an expert in the laws of such
State, although I have made a study of relevant laws of such State. In
expressing opinions about matters governed by the laws of the State of New
Hampshire, I have consulted with counsel who are employed by the Company and
are members of the bar of such State.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. To the best of my knowledge, the execution, delivery, and
performance by the Company of the Documents do not and will not contravene
any contractual restriction contained in any material agreement binding on
or affecting the Company.
2. There is no pending or, to the best of my knowledge, threatened
action or proceeding affecting the Company or its properties before any
court, governmental agency, or arbitrator (a) which affects or purports to
affect the legality, validity or enforceability of the Documents or (b) as
to which there is a reasonable possibility of an adverse determination and
which, if adversely determined, would materially adversely affect the
financial condition, properties, or operations of the Company, except, for
purposes of this clause (b) only, such as is described in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994.
3. All outstanding shares of capital stock having ordinary voting
power for the election of directors of the Company are owned of record and
beneficially by Northeast Utilities ("NU"), free and clear of any Lien. NU
is a "holding company" (as defined in the Public Utility Holding Company
Act of 1935, as amended).
I have not myself checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in Appendix A to
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 3
the Supplement dated May 2, 1995, including the documents incorporated by
reference therein (the "Taxable Supplement"), to the Official Statement dated
May 15, 1991, with respect to the Taxable Bonds and certain other bonds or in
Appendix A to the Supplement dated May 2, 1995, including the documents
incorporated by reference therein (the "Tax-Exempt Supplement"), to the
Official Statement dated December 14, 1993, with respect to the Tax-Exempt
Bonds. I have generally reviewed and discussed with certain officers and
employees of, and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to my check and
verification. On the basis of such review and discussion, but without
independent check or verification, I believe that (except for the financial
statements and other financial or statistical information contained in
Appendix A to the Taxable Supplement, in Appendix A to the Tax-Exempt
Supplement, or in the documents incorporated by reference therein, as to
which I express no belief), Appendix A to the Taxable Supplement and Appendix
A to the Tax-Exempt Supplement, including the documents incorporated by
reference therein, did not as of the dates thereof, and Appendix A to the
Taxable Supplement and Appendix A to the Tax-Exempt Supplement, including the
documents incorporated by reference therein, do not as of the date hereof,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
Jeffrey C. Miller
Assistant General Counsel
<PAGE>
EXHIBIT 5.01D to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $69,700,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series E)
$44,800,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1993 Tax-Exempt Series E)
Ladies and Gentlemen:
We have acted as special Maine counsel to Public Service Company of New
Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series E
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Swiss Bank Corporation, New
York Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the
"Agent") thereunder, and the Participating Banks referred to therein,
pursuant to which the Issuing Bank is issuing an Irrevocable Letter of Credit
dated the date hereof in support of the $69,700,000 The Industrial
Development Authority of the State of New Hampshire Pollution Control Revenue
Bonds (Public Service Company of New Hampshire Project - 1991 Taxable Series
E) and the $44,800,000 Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds (Public Service Company
of New Hampshire Project - 1993 Tax-Exempt Series E), (ii) the Second
Supplement dated as of May 1, 1995 (the "Second Supplement"), to the Series E
Loan and Trust Agreement dated as of May 1, 1991, as previously supplemented
by the First Supplement dated as of December 1, 1993, among the Business
Finance Authority of the State of New Hampshire (formerly known as The
Industrial Development Authority of the State of New Hampshire), the Company,
and State Street Bank and Trust Company, as trustee, and (iii) the First
Amendment dated as of May 1, 1995 (the "First Pledge Amendment"), among the
Company, Citibank, N.A., the Issuing Bank, and the Agent to the Series E
Pledge Agreement dated as of May 1, 1991, between the Company and Citibank,
N.A. (such Series E Pledge Agreement as so amended by the First Pledge
Amendment, the "Pledge Agreement" and the Reimbursement Agreement, the Second
Supplement, and the Pledge Agreement, collectively, the "Documents").
In connection with this opinion, we have examined a certificate of the
Secretary of State of the State of Maine dated ____________ __, 1995,
attesting to the qualification as a foreign corporation and good standing of
the Company in the State of Maine. In addition, we have examined originals,
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
or copies certified to our satisfaction, of such other corporate records of
the Company, certificates of public officials and of officers of the Company,
and agreements, instruments, and other documents, as we have deemed necessary
as a basis for the opinions expressed below. In our examination of such
agreements, instruments, and documents, we have assumed the genuineness of
all signatures (other than those of the Company), the authenticity of all
agreements, instruments, and documents submitted to us as originals, and the
conformity to original agreements, instruments, and documents of all
agreements, instruments, and documents submitted to us as certified,
conformed, or photostatic copies and the authenticity of the originals of
such copies. As to questions of fact material to such opinions, we have
assumed without verification and relied upon the accuracy of the
representations as to factual matters set forth in the Documents and in
certificates of the Company or its officers or of public officials. Nothing
has come to our attention, however, calling into question the accuracy of
such representations.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of the State of
Maine.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly qualified to do business in,
and is in good standing in, the State of Maine.
2. The execution, delivery, and performance by the Company of the
Documents do not and will not contravene any law of the State of Maine.
3. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of Maine (other
than in connection with or in compliance with the provisions of the state
securities or "Blue Sky" laws of any jurisdiction, as to which we express
no opinion) is required to be obtained or made in connection with the
execution, delivery, or performance by the Company of the Documents or the
grant and perfection of any security interest contemplated by the Pledge
Agreement, except for those that have been obtained or made and are in full
force and effect, and any post-closing filings required thereby.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
<PAGE>
EXHIBIT 5.01E to
Reimbursement Agreement
May 2, 1995
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
Re: $69,700,000 The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of
New Hampshire Project - 1991 Taxable Series E)
$44,800,000 Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of
New Hampshire Project - 1993 Tax-Exempt Series E)
Ladies and Gentlemen:
We have acted as special Vermont counsel to Public Service Company of New
Hampshire (the "Company") and we are rendering this opinion to you in
connection with the transactions contemplated by (i) the Second Series E
Letter of Credit and Reimbursement Agreement dated as of May 1, 1995 (the
"Reimbursement Agreement"), among the Company, Swiss Bank Corporation, New
York Branch, as the Issuing Bank (the "Issuing Bank") and the Agent (the
"Agent") thereunder, and the Participating Banks referred to therein,
pursuant to which the Issuing Bank is issuing an Irrevocable Letter of Credit
dated the date hereof in support of the $69,700,000 The Industrial
Development Authority of the State of New Hampshire Pollution Control Revenue
Bonds (Public Service Company of New Hampshire Project - 1991 Taxable Series
E) and the $44,800,000 Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds (Public Service Company
of New Hampshire Project - 1993 Tax-Exempt Series E), (ii) the Second
Supplement dated as of May 1, 1995 (the "Second Supplement"), to the Series E
Loan and Trust Agreement dated as of May 1, 1991, as previously supplemented
by the First Supplement dated as of December 1, 1993, among the Business
Finance Authority of the State of New Hampshire (formerly known as The
Industrial Development Authority of the State of New Hampshire), the Company,
and State Street Bank and Trust Company, as trustee, and (iii) the First
Amendment dated as of May 1, 1995 (the "First Pledge Amendment"), among the
Company, Citibank, N.A., the Issuing Bank, and the Agent to the Series E
Pledge Agreement dated as of May 1, 1991, between the Company and Citibank,
N.A. (such Series E Pledge Agreement as so amended by the First Pledge
Amendment, the "Pledge Agreement" and the Reimbursement Agreement, the Second
Supplement, and the Pledge Agreement, collectively, the "Documents").
In connection with this opinion, we have examined a certificate of the
Secretary of State of the State of Vermont dated ____________ __, 1995,
attesting to the qualification as a foreign corporation and good standing of
the Company in the State of Vermont. In addition, we have examined
<PAGE>
Day, Berry & Howard
May 2, 1995
Page 2
originals, or copies certified to our satisfaction, of such other corporate
records of the Company, certificates of public officials and of officers of
the Company, and agreements, instruments, and other documents, as we have
deemed necessary as a basis for the opinions expressed below. In our
examination of such agreements, instruments, and documents, we have assumed
the genuineness of all signatures (other than those of the Company), the
authenticity of all agreements, instruments, and documents submitted to us as
originals, and the conformity to original agreements, instruments, and
documents of all agreements, instruments, and documents submitted to us as
certified, conformed, or photostatic copies and the authenticity of the
originals of such copies. As to questions of fact material to such opinions,
we have assumed without verification and relied upon the accuracy of the
representations as to factual matters set forth in the Documents and in
certificates of the Company or its officers or of public officials. Nothing
has come to our attention, however, calling into question the accuracy of
such representations.
The opinions set forth below are subject to the qualification that no
opinion is expressed with respect to laws other than those of the State of
Vermont.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly qualified to do business in,
and is in good standing in, the State of Vermont.
2. The execution, delivery, and performance by the Company of the
Documents do not and will not contravene any law of the State of Vermont.
3. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body of the State of Vermont (other
than in connection with or in compliance with the provisions of the state
securities or "Blue Sky" laws of any jurisdiction, as to which we express
no opinion) is required to be obtained or made in connection with the
execution, delivery, or performance by the Company of the Documents or the
grant and perfection of any security interest contemplated by the Pledge
Agreement, except for those that have been obtained or made and are in full
force and effect, and any post-closing filings required thereby.
All parties that are entitled to rely on the opinion you are rendering in
connection with the transactions contemplated by the Documents may rely on
this opinion as if it were addressed specifically to them.
Very truly yours,
<PAGE>
EXHIBIT 5.01F to
Reimbursement Agreement
[Form of Opinion of King & Spalding]
May 2, 1995
To Swiss Bank Corporation, New York Branch,
as Agent and as Issuing Bank under the
Reimbursement Agreement referred to below,
and to each Participating Bank thereunder
The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds (Public Service Company of New
Hampshire Project - 1993 Tax-Exempt Series E)
Letter of Credit Substitution
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(f)(vi) of the
Second Series E Letter of Credit and Reimbursement Agreement, dated as of May
2, 1995 (the "Reimbursement Agreement"), among Public Service Company of New
Hampshire (the "Company"), Swiss Bank Corporation, New York Branch, as the
Agent (the "Agent") and Issuing Bank (the "Issuing Bank") thereunder, and the
Participating Banks referred to therein. Unless otherwise defined herein,
terms defined in the Reimbursement Agreement are used herein as therein
defined.
We have acted as special New York counsel to the Agent and the Issuing Bank
in connection with the preparation, execution and delivery of the
Reimbursement Agreement and the issuance by the Issuing Bank of the Letter of
Credit referred to therein.
In that connection, we have examined the following documents:
(a) The Reimbursement Agreement, executed by each of the parties
thereto; and
(b) The documents furnished to you today pursuant to Section 5.01
of the Reimbursement Agreement, including the opinions of counsel delivered
pursuant to Sections 5.01(f)(i) through (v) of the Reimbursement Agreement
(collectively, the "Opinions").
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
<PAGE>
-2-
submitted to us as copies or telecopies. We have also assumed that the
Agent, the Issuing Bank and each Participating Bank have duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the Reimbursement Agreement and that all requisite consents of Participating
Banks have been obtained under Sections 5.01 of the Reimbursement Agreement.
To the extent that our opinions expressed below involve conclusions as to
matters governed by laws other than the laws of the State of New York, we
have relied upon the Opinions and have assumed without independent
investigation the correctness of the matters set forth therein, our opinions
expressed below being subject to the assumptions, qualifications and
limitations set forth in the Opinions. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
1. The Reimbursement Agreement is in substantially acceptable
legal form.
2. The Opinions and the other documents referred to in paragraph
(b), above, are substantially responsive to the requirements of the
sections of the Reimbursement Agreement pursuant to which the same have
been delivered.
Very truly yours,
PKS:GDP:jvn
<PAGE>
File No. 70-8036
Exhibit K-1(1995)
Page 1 of 2
PSNH Letters of Credit Fee Table
The ongoing Letter of Credit (LOC) commissions and fees and the interest rates
applicable to Tender Advances are affected by the credit agency ratings on
PSNH's First Mortgage Bonds (FMB). The table below reflects the commissions,
fees, and interest rates for the new and previous LOCs based on PSNH's current
FMB Moody's rating of Baa3 (investment grade) and S&P's rating of BB+ (below
investment grade).
<TABLE>
<CAPTION>
Interest Rates Applicable to Tender Advances
--------------------------------------------------
Total
Annual Annual LOC Annual Base Rate (d) CD Rate (e) LIBOR (f)
Annual LOC Fronting Commission and Agency Plus Plus Plus
Commission (a) Fee (a) Fronting Fee (a) Fee Applicable Margin Applicable Margin Applicable Margin
-------------- -------- --------------- ------ ----------------- ----------------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C>
Barclays LOC 0.875%(b) 0.150% 1.025% $18,000(c) 0.000% 0.875% 0.750%
Series E Citibank LOC 0.750%(b) 0.125% 0.875% $0 0.250% 1.225% 0.850%
1995 Barclays Series D LOC 0.600% 0.100% 0.700% $15,000 0.000% N/A 0.750%
1995 Swiss Bank Series E LOC 0.600% 0.100% 0.700% $15,000 0.000% N/A 0.750%
</TABLE>
(a) Commissions and fees are payable annually on the full amount available to be
drawn on the LOC.
(b) The Barclays LOC and Series E Citibank LOC annual LOC commissions reflect
upward adjustments based on PSNH's current FMB S&P rating of BB+ ( below
investment grade), as follows:
<TABLE>
<CAPTION>
Barclays Series E Citibank
LOC LOC
------------ -----------------
<S> <C> <C>
Base Commission 0.625% 0.600%
Adjustment 0.250% 0.150%
Adjusted Commission 0.875% 0.750%
</TABLE>
(c) Under the Barclays LOC, the annual Agency Fee was $3,000 per bank
participant (excluding Barclays). There were 6 participating banks (excluding
Barclays).
(d) Base Rate equals the sum of (i) the higher of (A) the bank's prime rate and
(B) 0.5% per annum above the federal funds rate plus (ii) the applicable margin
indicated above. The Series E Citibank LOC applicable margin indicated above
reflects a 0.25% upward adjustment based on PSNH's current FMB S&P rating of BB+
(below investment grade).
<PAGE>
(e) CD Rate equals the sum (adjusted to reflect applicable bank reserve
requirements and FDIC deposit insurance assessments) of (i)the average of three
certificate of deposit rates provided by New York dealers plus (ii) the
applicable margin indicated above. The Series E Citibank LOC applicable margin
indicated above reflects a 0.25% upward adjustment based on PSNH's current FMB
S&Prating of BB+ (below investment grade).
(f) LIBOR equals the sum (adjusted to reflect applicable bank reserve
requirements) of (i) the prime rate offered to banks in the London interbank
market plus (ii) the applicable margin indicated above. The Series Citibank
LOC applicable margin indicated above reflects a 0.25% upward adjustment based
on PSNH's current FMB S&P rating of BB+ (below investment grade).
Page 2 of this Exhibit K-1(1995) sets forth the ongoing LOC commissions, fees
and interest rates that would be applicable for the new LOCs if PSNH's FMB
rating from Moody's or S&P's changes.
<PAGE>
File No. 70-8036
Exhibit K-1(1995)
Page 2 of 2
PSNH Letters of Credit Fee Table
The table below reflects the commissions, fees, and interest rates for the
new LOCs if PSNH's FMB Moody's rating remains at Baa3 and its FMB S&P's
rating improves to BBB-.
<TABLE>
<CAPTION>
Interest Rates Applicable to Tender Advances
- --------------------------------------------
Total
Annual Annual LOC Annual Base Rate (d) CD Rate (e) LIBOR (f)
Annual LOC Fronting Commission and Agency Plus Plus Plus
Commission (a) Fee (a) Fronting Fee (a) Fee Applicable Margin Applicable Margin Applicable Margin
-------------- ------- ---------------- ------ ----------------- ----------------- -----------------
<C> <S> <C> <C> <C> <C> <C> <S> <C>
1995 Barclays Series D LOC 0.550% 0.100% 0.650% $15,000 0.000% N/A 0.700%
1995 Swiss Bank Series E LOC 0.550% 0.100% 0.650% $15,000 0.000% N/A 0.700%
</TABLE>
The table below reflects the commissions, fees and interest rates for the new
LOCs if either (i) PSNH's FMB Moody's rating improves to Baa2 or higher and its
FMB S&P's rating improves to BBB- or higher or (ii) PSNH's FMB S&P's rating
improves to BBB or higher and its FMB Moody's rating remains at Baa3 or
improves.
<TABLE>
<CAPTION>
Interest Rates Applicable to Tender Advances
- --------------------------------------------
Total
Annual Annual LOC Annual Base Rate (d) CD Rate (e) LIBOR (f)
Annual LOC Fronting Commission and Agency Plus Plus Plus
Commission (a) Fee (a) Fronting Fee (a) Fee Applicable Margin Applicable Margin Applicable Margin
-------------- ------- ---------------- ------ ----------------- ----------------- -----------------
<C> <S> <C> <C> <C> <C> <C> <S> <C>
1995 Barclays Series D LOC 0.500% 0.100% 0.600% $15,000 0.000% N/A 0.650%
1995 Swiss Bank Series E LOC 0.500% 0.100% 0.600% $15,000 0.000% N/A 0.650%
</TABLE>
<PAGE>
The table below reflects the commissions, fees and interest rates for the new
LOCs if either Moody's rating or S&P's rating is lower than the current level.
<TABLE>
<CAPTION>
Interest Rates Applicable to Tender Advances
- --------------------------------------------
Total
Annual Annual LOC Annual Base Rate (d) CD Rate (e) LIBOR (f)
Annual LOC Fronting Commission and Agency Plus Plus Plus
Commission (a) Fee (a) Fronting Fee (a) Fee Applicable Margin Applicable Margin Applicable Margin
-------------- ------- ---------------- ------ ----------------- ----------------- -----------------
<C> <S> <C> <C> <C> <C> <C> <S> <C>
1995 Barclays Series D LOC 0.700% 0.100% 0.800% $15,000 0.000% N/A 1.000%
1995 Swiss Bank Series E LOC 0.700% 0.100% 0.800% $15,000 0.000% N/A 1.000%
</TABLE>
Please refer to Exhibit K-1(1995), Page 1 of 2 for footnote references.
File No. 70-8036
Exhibit K-2(1995)
Page 1 of 1
PSNH - Letter of Credit Substitution
Estimated Expenses for the Replacements
<TABLE>
<S> <C> <C>
Legal:
Bank - Barclays $20,000
Bank - Swiss Bank 20,000
Underwriter 20,000
NHBFA 5,000
Trustee 5,000
PSNH - Day Berry 50,000
PSNH - Other 25,000
Printing 10,000
Rating Agencies 20,000
Miscellaneous 5,000
----------
$180,000
==========
</TABLE>
File No. 70-8036
Exhibit K-3(1995)
Page 1 of 1
PSNH LETTER OF CREDIT SUBSTITUTION
Estimated Annual Net Savings
<TABLE>
<CAPTION>
Series D
--------------------------------------------
Barclays 1995 Barclays Savings/
LOC Series D LOC (Expense)
------------ ------------- -------------
<S> <C> <C> <C> <C>
LOC Commission Fees (a) 0.875% 0.600% $ 324,109.50
LOC Fronting Fees (a) 0.150% 0.100% $ 58,929.00
Agency Fees (a) $ 18,000.00 $ 15,000.00 $ 3,000.00
Arrangement Fees (b) - $ 39,286.00 $ (39,286.00)
Other Fees (c) - $ 30,000.00 $ (30,000.00)
-------------
Annual Net Savings $ 316,752.50
=============
</TABLE>
<TABLE>
<CAPTION>
Series E
---------------------------------------------
Series E 1995 Swiss Bank Savings/
Citibank LOC Series E LOC (Expense)
------------ --------------- --------------
<S> <C> <C> <C> <C>
LOC Commission Fees (a) 0.750% 0.600% $ 178,693.50
LOC Fronting Fees (a) 0.125% 0.100% $ 29,782.25
Agency Fees (a) - $ 15,000.00 $ (15,000.00)
Arrangement Fees (b) - $ 39,709.67 $ (39,709.67)
Other Fees (c) - $ 30,000.00 $ (30,000.00)
Interest Rate Spread (d) 0.100% - $ 114,500.00
------------
Annual Net Savings $ 238,266.08
=============
Combined Annual Net Savings $ 555,018.58
=============
</TABLE>
(a) See Exhibit K-1(1995), Page 1 of 2.
<PAGE>
(b) Represents arrangement fees due upon closing of the LOC substitution
transaction to the bank issuing the substitute LOC. The expense is amortized
over three years.
<PAGE>
(c) See Exhibit K-2(1995), Page 1 of 1. Expenses are amortized over three
years and split evenly between Series D and Series E.
(d) Due to differences in credit ratings, bonds backed by Swiss Bank LOCs
typically trade 10 basis points lower than bonds backed by Citibank LOCs.
