<PAGE>
File No. 70-9109
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION/DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
NEW ENGLAND ELECTRIC SYSTEM
25 Research Drive
Westborough, Massachusetts 01582
(Name of company filing this statement and
address of principal executive office)
NEW ENGLAND ELECTRIC SYSTEM
(Name of top registered holding company parent of applicant)
Michael E. Jesanis Robert King Wulff
Treasurer Corporation Counsel
25 Research Drive 25 Research Drive
Westborough, Massachusetts 01582 Westborough, Massachusetts 01582
(Names and addresses of agents for service)
<PAGE>
Form U-1 Application/Declaration under the Public Utility
Holding Company Act of 1935, File No. 70-9109, is hereby amended
as follows:
1. The Background section of Item 1 is amended by (a)
deleting the second paragraph thereof and substituting the
following:
By supplying the following exhibits:
B-2 Draft Credit Agreement
F Opinion of Counsel
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
statement to be signed on its behalf by the undersigned officer
thereunto duly authorized.
NEW ENGLAND ELECTRIC SYSTEM
s/Michael E. Jesanis
___________________________
Michael E. Jesanis
Vice President and
Treasurer
Date: November 26, 1997
The name "New England Electric System" means the trustee or
trustees for the time being (as trustee or trustees but not
personally) under an agreement and declaration of trust dated
January 2, 1926, as amended, which is hereby referred to, and a
copy of which as amended has been filed with the Secretary of The
Commonwealth of Massachusetts. Any agreement, obligation or
liability made, entered into or incurred by or on behalf of New
England Electric System binds only its trust estate, and no
shareholder, director, trustee, officer or agent thereof assumes
or shall be held to any liability therefor.
<PAGE>
Exhibit Index
-------------
Exhibit Description Page
- ------- ----------- ----
B-2 Draft Credit Agreement Filed herewith
F Opinion of Counsel Filed herewith
<PAGE>
S&S DRAFT 11/6/97
U.S. $500,000,000
CREDIT AGREEMENT
Dated as of ___________________, 1997
Among
NEW ENGLAND ELECTRIC SYSTEM
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
MERRILL LYNCH CAPITAL CORPORATION
as Arranger and
Syndication Agent
and
BANKBOSTON, N.A.
as Administrative Agent
and
CREDIT SUISSE FIRST BOSTON
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. . . . . . . . . . . . .
SECTION 1.02. Computation of Time Periods. . . . . . . . . . .
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . . .
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. . . . . . . . . .
SECTION 2.02. Making the Advances. . . . . . . . . . . . . . .
SECTION 2.03. The Competitive Bid Advances . . . . . . . . . .
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.05. Termination or Reduction of the Commitments. . .
SECTION 2.06. Repayment of Advances. . . . . . . . . . . . . .
SECTION 2.07. Interest on Revolving Credit Advances. . . . . .
SECTION 2.08. Interest Rate Determination. . . . . . . . . . .
SECTION 2.09. Optional Conversion of Advances. . . . . . . . .
SECTION 2.10. Optional Prepayments of Revolving Credit Advances
SECTION 2.11. Increased Costs. . . . . . . . . . . . . . . . .
SECTION 2.12. Illegality . . . . . . . . . . . . . . . . . . .
SECTION 2.13. Payments and Computations. . . . . . . . . . . .
SECTION 2.14. Taxes. . . . . . . . . . . . . . . . . . . . . .
SECTION 2.15. Sharing of Payments, Etc.. . . . . . . . . . . .
SECTION 2.16. Use of Proceeds. . . . . . . . . . . . . . . . .
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03 . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing
SECTION 3.04. Determinations Under Section 3.01. . . . . . . .
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower .
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. . . . . . . . . . . . . .
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . .
SECTION 5.03. Financial Covenant . . . . . . . . . . . . . . .
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . .
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action . . . . . . . . . . . .
SECTION 7.02. Agent's Reliance, Etc. . . . . . . . . . . . . .
SECTION 7.03. BankBoston, MLCC, Credit Suisse and Affiliates .
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . .
SECTION 7.05. Indemnification. . . . . . . . . . . . . . . . .
SECTION 7.06. Successor Agents . . . . . . . . . . . . . . . .
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . . . .
SECTION 8.02. Notices, Etc.. . . . . . . . . . . . . . . . . .
SECTION 8.03. No Waiver; Remedies. . . . . . . . . . . . . . .
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . . . .
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . . . .
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . . . .
SECTION 8.07. Assignments, Designations and Participations . .
SECTION 8.08. Confidentiality. . . . . . . . . . . . . . . . .
SECTION 8.09. Governing Law. . . . . . . . . . . . . . . . . .
SECTION 8.10. Execution in Counterparts. . . . . . . . . . . .
SECTION 8.11. Jurisdiction, Etc. . . . . . . . . . . . . . . .
SECTION 8.12. Waiver of Jury Trial . . . . . . . . . . . . . .
<PAGE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(k) - Material Subsidiaries
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of ___________, 1997 (the "Agreement"), among
NEW ENGLAND ELECTRIC SYSTEM, a Massachusetts trust (the "Borrower"), THE
BANKS, FINANCIAL INSTITUTIONS AND OTHER INSTITUTIONAL LENDERS (the "Initial
Lenders") listed on the signature pages hereof, MERRILL LYNCH CAPITAL
CORPORATION ("MLCC"), as arranger and syndication agent (in such capacities,
the "Syndication Agent"), BANKBOSTON, N.A., as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders (as hereinafter
defined), and CREDIT SUISSE FIRST BOSTON ("Credit Suisse"), as documentation
agent (in such capacity, the "Documentation Agent" and together with the
Administrative Agent and the Syndication Agent, the "Agents").
PRELIMINARY STATEMENT:
The Borrower has requested that the Lenders lend to the Borrower up to
$500,000,000 in order to provide working capital, for other general corporate
purposes and for certain stock purchases. The Lenders have indicated their
willingness to agree to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 5%
or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Administrative Agent
maintained by the Administrative Agent at BankBoston with its office at
____________________, Boston, Massachusetts _____, Account
No. __________, Attention: _______________.
"Agents" has the meaning specified in the recital of parties to
this Agreement.
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"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and, in the case of a Competitive Bid Advance, the office
of such Lender notified by such Lender to the Agent as its Applicable
Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Implied Debt Rating in effect on such
date as set forth below:
Implied Debt Rating Applicable Margin for
S&P/Moody's Eurodollar Rate Advances
-------------------- ------------------------
Level 1
AA-/Aa3 or above 0.110%
Level 2
A+/A1 or A/A2 0.115%
Level 3
A-/A3 0.145%
Level 4
BBB+Baa1 0.175%
Level 5
BBB/Baa2 0.200%
Level 6
BBB-/Baa3 or below 0.250%
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Implied Debt Rating in effect on
such date as set forth below:
Implied Debt Rating Applicable Margin for
S&P/Moody's Eurodollar Rate Advances
-------------------- ------------------------
Level 1
AA-/Aa3 or above 0.065%
Level 2
A+/A1 or A/A2 0.085%
Level 3
A-/A3 0.105%
Level 4
BBB+Baa1 0.125%
Level 5
BBB/Baa2 0.150%
Level 6
BBB-/Baa3 or below 0.200%
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"BankBoston" has the meaning specified in the recital of parties
to this Agreement.
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"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by BankBoston
in Boston, Massachusetts, from time to time, as BankBoston's base
rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower's Account" means the account of the Borrower maintained
at __________ with its offices at __________, Account No. _____,
Attention: __________.
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in Boston, Massachusetts or New
York City and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"Closing Date" means __________ __, 1997.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to any Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to such Agent or such Lender from a source other than the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
<PAGE>
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations
of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (g) all obligations
of such Person in respect of Hedge Agreements, (h) all Debt of others
referred to in clauses (a) through (g) above or clause (i) below
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Debt or to assure the holder of such Debt against loss, (3) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (i) all Debt referred to in
clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means an Eligible Assignee that (i) is
organized under the laws of the United States or any State thereof,
(ii) shall have become a party hereto pursuant to Section 8.07(d), (e)
and (f) and (iii) is not otherwise a Lender.
"Designation Agreement " means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Administrative Agent, in substantially the
form of Exhibit D hereto.
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
<PAGE>
"Eligible Assignee" means with respect to the Revolving Credit
Facility, (a) a Lender; (b) an Affiliate of a Lender; (c) a commercial
bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $500,000,000; (d) a
savings and loan association or savings bank organized under the laws of
the United States, or any State thereof, and having total assets in
excess of $500,000,000; (e) a commercial bank organized under the laws
of any other country that is a member of the OECD or has concluded
special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (f) the central bank of any country that
is a member of the OECD; (g) a finance company, insurance company or
other financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and having total assets in excess of $500,000,000; and (h) any
other Person approved by the Administrative Agent and, unless a Default
has occurred and is continuing at the time any assignment is effected in
accordance with Section 8.07, the Borrower, such approval not to be
unreasonably withheld or delayed, provided, however, that neither the
Borrower nor any Affiliate of the Borrower shall qualify as an Eligible
Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory authority
or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
<PAGE>
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section 4041(a)(2)
of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with respect
to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, a
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 Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and
the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum at which deposits in U.S. dollars are offered by
the principal office of BankBoston 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 in an amount
substantially equal to BankBoston's Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
<PAGE>
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to
which the interest rate on Eurodollar Rate Advances or LIBO Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"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 for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Funded Debt" of any Person means Debt in respect of the Advances,
in the case of the Borrower, and all other Debt of such Person that by
its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible,
at the option of such Person, to a date more than one year after such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more
than one year after such date, including, without limitation, all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Generating Business" means the non-nuclear power generating
business of NEP and Narra Electric, including, without limitation, the
assets subject to the Asset Purchase Agreement by and among NEP, Narra
Electric, and USGen New England, Inc. (formerly USGen Acquisition
Corporation), dated as of August 5, 1997, as amended from time to time.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Implied Debt Rating" means, as of any date, one level lower than
the lowest of (i) the rating that has been most recently announced by
either S&P or Moody's, as the case may be, for any class of non-credit
enhanced senior secured debt of Mass. Electric, (ii) the rating that has
most recently been announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced senior secured debt of Narra
Electric and (iii) the rating that has most recently been announced by
<PAGE>
either S&P or Moody's, as the case may be, for any class of non-credit
enhanced senior secured debt of NEP or, if no such rating exists, for
any class of non-credit enhanced senior debt of NEP. For purposes of
the foregoing, (a) if only one of S&P and Moody's shall have in effect a
senior secured debt rating or senior debt rating, as applicable, the
Applicable Margin and the Applicable Percentage shall be determined by
reference to the available rating; (b) if neither S&P nor Moody's shall
have in effect any rating described in the preceding clauses (i), (ii)
or (iii), the Applicable Margin and the Applicable Percentage will be
set in accordance with Level 6 under the definition of "Applicable
Margin" or "Applicable Percentage", as the case may be; (c) if the
ratings established by S&P and Moody's shall fall within different
levels, the Applicable Margin and the Applicable Percentage shall be
based upon the lower rating; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to a rating announced by
S&P or Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be.
"Information Memorandum" means the information memorandum dated
October 1997 used by the Syndication Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (Boston,
Massachusetts time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that
ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
<PAGE>
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to a Revolving Credit Advance, a Revolving
Credit Borrowing, a Revolving Credit Note, a Commitment or a related
term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum at which deposits in U.S. dollars are offered by
the principal office of BankBoston 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 in an amount
substantially equal to the amount that would be BankBoston's ratable
share of such Borrowing if such Borrowing were to be a Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period by (b) a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage for such Interest Period.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Margin Regulations" means Regulations G, U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Margin Stock" has the meaning specified in the Margin
Regulations.
"Mass. Electric" means Massachusetts Electric Company, a
Massachusetts corporation.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations or properties
of the Borrower and its Material Subsidiaries, taken as a whole;
provided that any change disclosed in (a) Form 10-Q of the Borrower for
the period ended March 31, 1997 or June 30, 1997 which was filed with
the Securities and Exchange Commission prior to October 2, 1997 or (b)
Form 8-K of the Borrower dated April 14, 1997, May 20, 1997 or August 6,
1997 which was filed with the Securities and Exchange Commission prior
to October 2, 1997 shall not constitute a Material Adverse Change.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations or
properties of the Borrower and its Material Subsidiaries, taken as a
whole, (b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
<PAGE>
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower whose assets at such time exceed 10% of the assets of the
Borrower and its Subsidiaries or whose income at such time is more than
10% of the income of the Borrower and its Subsidiaries, in each case on
a consolidated basis, excluding however, Connecticut Yankee Atomic Power
Company, Maine Yankee Atomic Power Company, Vermont Yankee Nuclear Power
Corporation and Yankee Atomic Electric Company.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than
the Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Narra Electric" means The Narragansett Electric Company, a Rhode
Island corporation.
"NEP" means New England Power Company, a Massachusetts
corporation.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
"Nuclear Generation Assets" means NEP's interests in Yankee Atomic
Electric Company, Vermont Yankee Nuclear Power Corporation, Maine Yankee
Atomic Power Company, Connecticut Yankee Atomic Power Company, the
Millstone 3 nuclear generating unit in Connecticut and the
Seabrook nuclear generating units.
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens, and other
similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days;
(c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not
<PAGE>
render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present
purposes; and (e) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the purpose
of financing the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such acquisition
that were not incurred to finance the acquisition of such property) or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than the real
property or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not theretofore
subject to the Lien being extended, renewed or replaced.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pro Rata Share" of any amount means, at any time, the product of
such amount multiplied by a fraction, the numerator of which is the
amount of such Lender's Commitment at such time and the denominator
which is the Revolving Credit Facility at such time.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended from time to time, and the rules and regulations promulgated
thereunder.
"RCRA" Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), as amended or supplemented from time to time.
"Register" has the meaning specified in Section 8.07(g).
"Release" means the release, emission, disposal, leaching, or
migration into the environment (including, without limitation, the
abandonment or disposal of any barrels, containers or receptacles
containing Hazardous Materials), or into or out of any property owned,
leased or controlled by the Borrower or any of its Material
Subsidiaries.
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having at least a majority in
interest of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Facility" means, at any time, the amount of the
Lenders' Commitments at such time.
<PAGE>
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Termination Date" means the earlier of _______________, 2002 and
the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Total Capital" means, with reference to Borrower, as of any date,
the sum of the following of the Borrower and its Subsidiaries, without
duplication, each as determined on a Consolidated basis and in
accordance with GAAP: (a) total common shareholders equity (inclusive of
common shareholders equity, minority ownership interests, premiums on
preferred stock and retained earnings and less all treasury stock) at
such date; (b) the outstanding cumulative preferred stock at such date;
(c) Funded Debt; and (d) Consolidated Debt.
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Wyman 4 Facility" means NEP's interest in the Wyman 4 generating
unit located in Maine.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
<PAGE>
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Lender's name on the signature pages hereof or, if such Lender
has entered into any Assignment and Acceptance, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to
Section 8.07(g), as such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments
of the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, an aggregate amount equal to the amount by which the aggregate amount of
a proposed Competitive Bid Borrowing requested by the Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by the Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving
Credit Borrowing) and shall consist of Revolving Credit Advances of the same
Type made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Revolving Credit
Borrowing shall be made on notice, given not later than 11:00 A.M. (Boston,
Massachusetts time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, or not later than 9:30 A.M.
(Boston, Massachusetts time) on the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate
Advances, by the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier or telex. Each such notice of
a Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall
be by telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving
Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Revolving Credit Advance. Each Lender shall, before 1:00 P.M. (Boston,
Massachusetts time) on the date of such Revolving Credit Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Administrative Agent will make such
funds available to the Borrower at the Borrower's Account.
<PAGE>
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving
Credit Borrowing is less than $5,000,000 or if the obligation of the Lenders
to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than fifteen separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Borrowing that
the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice
by telegram, telex or telecopier from a Lender prior to the date of any
Revolving Credit Borrowing that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Revolving
Credit Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may (but it shall not be required to), in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Revolving Credit
Advances comprising such Revolving Credit Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Competitive Bid
Advances of all Lenders then outstanding shall not exceed $100,000,000,
(y) the aggregate amount of the Competitive Bid Advances of any one Lender
then outstanding shall not exceed $50,000,000 and (z) the aggregate amount of
the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
<PAGE>
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 7 days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto,
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 10:00 A.M. (Boston, Massachusetts time) (A) at
least four Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum (the Advances comprising any
such Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest be offered by the Lenders are to be based on the LIBO Rate (the
Advances comprising such Competitive Bid Borrowing being referred to
herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower. The
Administrative Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from the Borrower
by sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (Boston,
Massachusetts time) three days prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and before 10:00 A.M. (Boston,
Massachusetts time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of this
Section 2.03(a), exceed such Lender's Commitment, if any), the rate or
rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
of such offer at least 30 minutes before the time and on the date on
which notice of such election is to be given to the Administrative Agent
by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Administrative Agent, before
10:00 A.M. (Boston, Massachusetts time) on the date on which notice of
such election is to be given to the Administrative Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
<PAGE>
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as
part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (Boston,
Massachusetts time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and before 11:00 A.M. (Boston, Massachusetts time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving notice to the Administrative Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent on
behalf of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect. The Borrower shall
accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest
rates of interest offered by such Lenders. If two or more Lenders
have offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated among such Lenders in
proportion to the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii) above
have been accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Administrative Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before
12:00 noon (Boston, Massachusetts time) on the date of such Competitive
Bid Borrowing specified in the notice received from the Administrative
Agent pursuant to clause (A) of the preceding sentence or any later time
when such Lender shall have received notice from the Administrative
Agent pursuant to clause (C) of the preceding sentence, make available
for the account of its Applicable Lending Office to the Administrative
Agent at the Agent's Account, in same day funds, such Lender's portion
of such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the
<PAGE>
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the Administrative Agent's
address referred to in Section 8.02.
(vi) If the Borrower notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders pursuant
to paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date specified in
the related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower
shall be in compliance with the limitations set forth in the proviso to the
first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow
under this Section 2.03, provided that a Competitive Bid Borrowing shall not
be made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note evidencing
such Competitive Bid Advance), the then unpaid principal amount of such
Competitive Bid Advance. The Borrower shall have no right to prepay any
principal amount of any Competitive Bid Advance unless, and then only on the
terms, specified by the Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance
owing to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms
of the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
<PAGE>
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the
Borrower payable to the order of the Lender making such Competitive Bid
Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender (other than the
Designated Bidders) a facility fee on the aggregate amount of such Lender's
Commitment from the date hereof in the case of each Initial Lender and from
the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time of such Lender's Commitment during the preceding
quarter, whether used or unused, payable in arrears quarterly on the last day
of each March, June, September and December, commencing December 31, 1997, and
on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to each Agent for its
own account such fees as may from time to time be agreed between the Borrower
and such Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business
Days' notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of $20,000,000 or an integral multiple of $5,000,000 in excess thereof, and
provided further that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount that is less than the aggregate principal
amount of the Competitive Bid Advances then outstanding.
(b) Mandatory. On the third anniversary of the Closing Date the
Commitments shall automatically reduce, to the extent necessary, so that, on
and after such date, the Commitments of all Lenders shall be no greater than
$400,000,000, and on the fourth anniversary of the Closing Date the
Commitments shall automatically reduce, to the extent necessary, so that, on
and after such date, the Commitments of all Lenders shall be no greater than
$300,000,000.
SECTION 2.06. Repayment of Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Advances then
outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such periods
and on the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default the Borrower shall pay interest on (i) the unpaid
principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to clause (a)(i)
above.
SECTION 2.08. Interest Rate Determination. (a) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Administrative Agent for
purposes of Section 2.07(a)(i) or (ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event
of Default, (i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of Advances. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 12:00 noon (Boston, Massachusetts time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
<PAGE>
Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Revolving Credit
Advances shall result in more separate Revolving Credit Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. No notice of Conversion shall be
required to contain statements of the type contained in clause (A) or clause
(B) on Exhibit B-1 hereto. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
The Borrower may, upon at least three Business Days' notice to the
Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, and, if such notice is given, the Borrower shall prepay the
outstanding principal amount of the Revolving Credit Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and (y) in the event of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances (excluding for purposes of this Section 2.11 any such increased
costs resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall
govern) and (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Administrative Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such amounts submitted to
the Borrower and the Administrative Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error.
<PAGE>
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances
or LIBO Rate Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate
Advance, as the case may be, will automatically, upon such notice, Convert
into a Base Rate Advance or an Advance that bears interest at the rate set
forth in Section 2.07(a)(i), as the case may be, and (ii) the obligation of
the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances or to
Convert Advances into Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or LIBO
Rate Advances, as the case may be, or to continue to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, and would
not be disadvantageous to such Lender in any material respect.
SECTION 2.13. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes not later than 1:00 p.m.
(Boston, Massachusetts time) on the day when due in U.S. dollars to the
Administrative Agent at the Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees
ratably (other than amounts payable pursuant to Section 2.03, 2.11, 2.14 or
8.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(c),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of facility fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
<PAGE>
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances or LIBO
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to a Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the laws
of which such Lender or such Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed
on its overall net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction of such Lender's Applicable Lending Office
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred
to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent for
and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed by any jurisdiction
on amounts payable under this Section 2.14) imposed on or paid by such Lender
or Agent (as the case may be) and any liability (including penalties, interest
and expenses which do not arise from such Lender's failure timely to give
notice thereof or request payment pursuant to this Section 2.14) arising
<PAGE>
therefrom or with respect thereto. This indemnification shall be made within
30 days from the date such Lender or Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701
of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender in the
case of each other Lender, and from time to time thereafter as requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Administrative Agent and the Borrower
with two original Internal Revenue Service forms 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Lender at the time such Lender first becomes
a party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods governed
by such form; provided, however, that, if at the date of the Assignment and
Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a)
in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred
to in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under subsection (e) above), such Lender shall
not be entitled to indemnification under Section 2.14(a) or (c) with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as
the Lender shall reasonably request to assist the Lender to recover such
Taxes.
<PAGE>
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Revolving Credit
Advances owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in
excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Revolving Credit Advances
owing to them as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to provide working capital and for general corporate purposes of the
Borrower and to purchase Margin Stock of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon
the transactions contemplated hereby.
(b) The Borrower shall have notified each Lender and Agent in
writing as to the proposed Effective Date.
(c) The Borrower shall have paid all accrued fees and expenses
of each Agent and the Lenders (including the accrued fees and expenses
of counsel to the Syndication Agent).
(d) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
<PAGE>
(e) The Borrower shall have delivered to the Agents and the
Lenders the statements and other information required described in
Section 4.01(e).
(f) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
(ii) Certified copies of the resolutions of the board of
directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary trust action and
governmental approvals, if any, with respect to this Agreement and
the Notes.
(iii) A certificate of the Secretary of the Borrower
certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the
other documents to be delivered hereunder.
(iv) A favorable opinion of the Assistant General Counsel
for the Borrower, substantially in the form of Exhibit E hereto
and as to such other matters as any Lender through the
Administrative Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel
for the Agents, in form and substance satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance
on the occasion of each Revolving Credit Borrowing (other than a rollover of
an existing Revolving Credit Borrowing) shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing (a) the following statements shall be true (and each of the giving
of the applicable Notice of Revolving Credit Borrowing and the acceptance by
the Borrower of the proceeds of any such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Borrowing, before
and after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is subject
to the conditions precedent that (i) the Administrative Agent shall have
received the
<PAGE>
written confirmatory Notice of Competitive Bid Borrowing with respect thereto,
(ii) on or before the date of such Competitive Bid Borrowing, but prior to
such Competitive Bid Borrowing, the Administrative Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one
or more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such Competitive Bid
Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include an untrue statement of a material fact
or omit to state any material fact or any fact necessary to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the date that the Borrower, by notice to the Lenders, designates as
the proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lenders of the occurrence of
the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a trust duly organized, validly existing
and in good standing under the laws of The Commonwealth of
Massachusetts.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's powers, have been duly
authorized by all necessary action, and do not contravene (i) the
Borrower's agreement and declaration of trust or by-laws or (ii) any law
(including, without limitation, PUHCA) or any contractual restriction
binding on or affecting the Borrower.
<PAGE>
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes except for
the approval of the Securities and Exchange Commission as required by
PUHCA, which approval has been duly obtained and made and is in full
force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Coopers &
Lybrand LLP, independent public accountants, and the Consolidated
balance sheet of the Borrower and its Subsidiaries as at June 30, 1997,
and the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the six months then ended, duly
certified by the chief financial officer or treasurer of the Borrower,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 1997, and said
statements of income and cash flows for the six months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1996,
there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its Material
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(c) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(e) will be Margin Stock.
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(i) Except as would not, individually or in the aggregate, be
reasonably expected to result in material liability to the Borrower or
its Material Subsidiaries: (i) the Borrower and its Material
Subsidiaries have not received any written communication during the
past three years from any government agency or other third party
relating to a Release of Hazardous Materials or relating to violation of
Environmental Laws; (ii) no Hazardous Materials have been Released,
disposed of, discharged or found at or migrating from any property owned
<PAGE>
or operated presently or at any previous time by the Borrower or any
Material Subsidiary; (iii) the Borrower and each Material Subsidiary is
in compliance with all applicable Environmental Laws; (iv) the Borrower
and each Material Subsidiary has not been alleged to be in violation of,
and has not been subject to any administrative or judicial proceeding
pursuant to, any Environmental Law either now or at any time during the
past 3 years; or (v) there are no facts or circumstances that could
form the basis for the assertion of any claims against the Borrower or
any of its Material Subsidiaries relating to environmental matters
including, but not limited to, any claims arising from past or present
environmental practices asserted under CERCLA, RCRA or any other
federal, state or local environmental statute, rule or regulation. As
used in this Section 4.01(i), the term "material" shall refer to any
matter which as of the date of computation thereof could result in
liability of the Borrower or any of its Material Subsidiaries equal to
or greater than ten percent of the amount of the Borrower's or such
Material Subsidiaries' total common share equity as set forth on the
Borrower's or such Material Subsidiaries'most recent balance sheet
(either quarterly or annual) on such date.
(j) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, the application of the proceeds or repayment
thereof by the Borrower nor the consummation of the other transactions
contemplated hereby will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(k) All of the Material Subsidiaries of the Borrower as of the
Closing Date are listed on Schedule 4.01(k) hereto.
(l) Neither the Borrower nor any of its Subsidiaries is or has
been party to a Multiemployer Plan.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Material Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and as
to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
<PAGE>
(c) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Material Subsidiary operates;
provided, however, that the Borrower and its Material Subsidiaries may
self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Material Subsidiary operates and to the
extent consistent with prudent business practice.
(d) Preservation of Existence, Etc. Preserve and maintain, and
cause each of its Material Subsidiaries to preserve and maintain, its
trust or corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Borrower and its Material
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and; provided further that neither the Borrower nor any
of its Material Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Borrower or such Material
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Material Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Borrower, such
Material Subsidiary or the Lenders. Notwithstanding the foregoing, the
Borrower may change its form of organization from a trust to a
corporation only with approval of the Required Lenders, which approval
shall not be unreasonably withheld.
(e) Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and any of its Material Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and any of its Material
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Material Subsidiary in
accordance with generally accepted accounting principles in effect from
time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Material Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Material Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms
that are fair and reasonable and no less favorable to the Borrower or
such Material Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, unless such
transaction is carried out in accordance with PUHCA, in which case such
transaction shall be on terms which are in accordance with PUHCA.
(i) Reporting Requirements. Furnish to the Lenders:
<PAGE>
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief
financial officer or treasurer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer or
treasurer of the Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements
to GAAP in effect on the Closing Date;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, containing a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Coopers & Lybrand, LLP or other
independent public accountants acceptable to the Required Lenders,
and consolidating statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements
to GAAP in effect on the Closing Date;
(iii) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the date
of such statement, a statement of the chief financial officer of
the Borrower setting forth details of such Default and the action
that the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the sending or filing thereof, copies
of all reports that the Borrower sends to any of its
securityholders generally, and copies of all reports and
registration statements that the Borrower or any Subsidiary files
with the Securities and Exchange Commission or any national
securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Material
Subsidiaries of the type described in Section 4.01(f);
(vi) (A) promptly and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know that
any ERISA Event has occurred, a statement of the chief financial
officer or treasurer of the Borrower describing such ERISA Event
and the action, if any, that the Borrower or such ERISA Affiliate
has taken and proposes to take with respect thereto and (B) on the
<PAGE>
date any records, documents or other information must be furnished
to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information;
(vii) promptly and in any event within two Business
Days after receipt thereof by the Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer
any Plan;
(viii) promptly after the assertion or occurrence thereof,
notice of any Environmental Action against or of any noncompliance
by the Borrower or any of its Subsidiaries with any Environmental
Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect; and
(ix) such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
(j) Ownership of Subsidiaries. Own 100% of the stock or other
ownership interests in NEP, Mass. Electric and Narra Electric, in each
case free and clear of all liens, claims and encumbrances.
(k) Maintenance of Ratings. Maintain (i) a senior secured debt
rating by Moody's or S&P for each of Mass. Electric and Narra Electric
and (ii) a senior debt rating by Moody's or S&P of NEP.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Material Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Material Subsidiaries to
assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto and
(iii) the replacement, extension or renewal of any
Lien permitted by clause (ii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Material Subsidiaries to do so, except that
any Subsidiary of the Borrower may merge or consolidate with or into any
other Subsidiary of the Borrower, and except that any Subsidiary of the
Borrower may merge into the Borrower and the Borrower may merge with any
other Person so long as the Borrower is the surviving corporation,
provided, in each case, that (i) no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom and (ii) the nature of the Borrower's business will not change
after giving effect to such transaction.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Material Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
<PAGE>
other right to purchase, lease or otherwise acquire any assets, except
(i) sales in the ordinary course of its business, (ii) in a transaction
authorized by subsection (b) of this Section, (iii) the sale of all
assets or stock of New England Energy Incorporated, (iv) the sale of all
assets or stock of Narragansett Energy Resources Company, (v) the sale
of NEP's interests in the Nuclear Generation Assets, (vi) the sale of
NEP's interest in the Wyman 4 Facility, (vii) the sale of the Generating
Business and (viii) after giving effect to the sale described in the
preceding clause (vii), 5% of the total assets of the Borrower and its
Subsidiaries, taken as a whole.
(d) Nature of Business. Make, or permit any of its Material
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof (other than after giving effect to the
transactions described in clauses (ii) through (vii) of the immediately
preceding paragraph (d)).
(e) Use of Proceeds. Use of the proceeds of any Advance to
buy Margin Stock (other than Margin Stock issued by the Borrower or a
Subsidiary thereof).
SECTION 5.03. Financial Covenant. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will maintain a ratio of (i) Consolidated Debt to (ii) Total Capital, as of
the last day of each March, June, September and December, of not greater than
0.65 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay
any interest on any Advance or make any other payment of fees or other
amounts payable under this Agreement or any Note within two Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (h), or (j), 5.02 or
5.03, (ii) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(i) on its part to be
performed or observed if such failure shall remain unremedied for five
days after written notice thereof shall have been given to the Borrower
by the Administrative Agent or any Lender or (iii) the Borrower shall
fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 Business Days after written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
<PAGE>
(d) The Borrower or any of its Material Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $20,000,000 in
the aggregate (but excluding Debt outstanding hereunder) of the Borrower
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Material Subsidiaries 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 a
general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or 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, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Material Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$20,000,000 shall be rendered against the Borrower or any of its
Material Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 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
(g) Any material non-monetary judgment or order shall be
rendered against the Borrower or any of its Material Subsidiaries that
could be reasonably expected to have a Material Adverse Effect, and
there shall be any period of 60 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) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting
<PAGE>
Stock) representing 25% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason to constitute a majority of
the board of directors of the Borrower, provided that any person
becoming a director subsequent to the date hereof, whose election, or
nomination for election by the Borrower's shareholders, was approved by
a vote of at least a majority of the directors of the board of directors
of the Borrower as comprised as of the date hereof (other than the
election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the directors of the Borrower) shall be, for
purposes of this provision, considered as though such person were a
member of the board as of the date hereof; or (iii) any Person or two or
more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $20,000,000;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the Notes
as are delegated to such Agent by the terms hereof and thereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters expressly provided for in this Agreement or the Notes as being subject
to the discretion of any Agent, such matters shall be subject to the sole
discretion of such Agent, its directors, officers, agents and employees. As
to any matters not expressly provided for by this Agreement or the Notes
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
<PAGE>
Required Lenders, and such instructions shall be binding upon all Lenders and
all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is
contrary to this Agreement or applicable law. Each Agent agrees to give to
each Lender and each other Agent prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither any Agent nor any
of their respective 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 the Notes, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Agent: (a) may treat the payee of any Revolving Credit Note
as the holder thereof until, in the case of the Administrative Agent, the
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Lender that is the payee of such Revolving Credit Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other
Agent, such Agent has received notice from the Administrative Agent that it
has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including
counsel for any Lender), 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; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or the Notes; (d) 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 Note on the part of any Lender or to
inspect the property (including the books and records) of any Lender;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported
to be created under or in connection with, this Agreement or any Note or any
other instrument or document furnished pursuant thereto; and (f) shall incur
no liability under or in respect of this Agreement or any Note by acting upon
any notice, consent, certificate or other instrument or writing (which may be
by telegram, telecopy or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. BankBoston, MLCC, Credit Suisse and Affiliates.
With respect to its Commitments, the Advances made by it and the Notes issued
to it, each of BankBoston, MLCC and Credit Suisse shall have the same rights
and powers under this Agreement or the Notes as any other Lender and may
exercise the same as though it were not an Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include each of
BankBoston, MLCC and Credit Suisse in its individual capacity. Each of
BankBoston, MLCC and Credit Suisse and their respective affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, any Lender, any of its Subsidiaries and any Person who may do
business with or own securities of any Lender or any such Subsidiary, all as
if BankBoston, MLCC or Credit Suisse, as the case may be, were not an Agent
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agents or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
<PAGE>
SECTION 7.05. Indemnification. Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of this Agreement or the Notes or any
action taken or omitted by such Agent under this Agreement or the Notes;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse such Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that such Agent is not promptly reimbursed for such costs and expenses by the
Borrower. For purposes of this Section 7.05(a), the Lenders' respective
ratable shares of any amount shall be determined, at any time, according to
the sum of (i) the aggregate principal amount of the Advances outstanding at
such time and owing to the respective Lenders and (ii) the aggregate unused
portions of their respective Commitments at such time. In the event that any
Lender shall have failed to make any Advance as required hereunder, such
Lender's Commitment shall be considered to be unused for purposes of this
Section 7.05(a) to the extent of the amount of such Advance. The failure of
any Lender to reimburse an Agent promptly upon demand for its ratable share of
any amount required to be paid by the Lender to such Agent as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse
such Agent for its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse such Agent for
such other Lender's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender hereunder, the agreement and
obligations of each Lender contained in this Section 7.05(a) shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the Notes.
SECTION 7.06. Successor Agents. Any Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent to the Agent which has resigned or been removed. If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders' removal of
such retiring Agent, then such retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement or the Notes.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
<PAGE>
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders (other than
the Designated Bidders), do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect
the rights or duties of such Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or telex communication) and mailed, telecopied, telegraphed, telexed or
delivered, if to the Borrower, at its address at 25 Research Drive,
Westborough, Massachusetts 01582, Attention: Vice President and Director of
Corporate Finance; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at
its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Administrative Agent, at
its address at _________________________, Attention: _______________
Department; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
<PAGE>
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Syndication Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the
reasonable fees and expenses of counsel for the Syndication Agent with respect
thereto and with respect to advising the Syndication Agent as to its rights
and responsibilities under this Agreement. The Borrower further agrees to pay
on demand all costs and expenses of the Agents and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Agents and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless each
Lender, each Agent and each of their Affiliates and their officers, directors,
controlling persons, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses and liabilities,
joint or several, to which any such Indemnified Party may become subject, in
each case arising out of or in connection with or relating to (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower
or any of its Subsidiaries, and to reimburse any Indemnified Party for any and
all reasonable expenses (including, without limitation, reasonable fees and
expenses of counsel) as they are incurred in connection with the investigation
of or preparation for or defense of any pending or threatened claim or any
action or proceeding arising therefrom, whether or not such Indemnified Party
is a party and whether or not such claim, action or proceeding is initiated or
brought by or on behalf of a Borrower or any of its affiliates and whether or
not any of the transactions contemplated hereby are consummated or this
Agreement is terminated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees
not to assert any claim against the Administrative Agent, any Lender, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to
Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, the Borrower shall,
<PAGE>
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
(e) The Borrower agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract or tort or otherwise)
to the Borrower or its respective security holders or creditors related to or
arising out of in connection with the Notes, this Agreement, the Revolving
Credit Facility, the Advances or the use or proposed use of the proceeds
thereof, any of the transactions contemplated by any of the foregoing or in
the loan documentation and the performance by an Indemnified Party by any of
the foregoing except to the extent that any loss, claim, damage, liability or
expense is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence
or willful misconduct.
(f) The Borrower agrees that, without the Syndication Agent's
prior written consent, it will not settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification has been or could be sought under the
indemnification provisions of this Agreement (whether or not the Syndication
Agent or any other Indemnified Party is an actual or potential party to such
claim, action or proceeding), unless such settlement, compromise or consent
(i) either (A) includes an unconditional written release in form and substance
satisfactory to the Indemnified Parties of each Indemnified Party from all
liability arising out of such claim, action or proceeding or (B) would not
reasonably be expected to impair the indemnification of any Indemnified Party
hereunder and (ii) does not include any statement as an admission of fault,
culpability or failure to act by or on behalf of an Indemnified Party.
(g) In the event that an Indemnified Party is requested or
required to appear as a witness in any action brought by or on behalf of or
against a Borrower or any of its affiliates in which such Indemnified Party is
not named as a defendant, the Borrower agrees to reimburse the Arranger for
all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including,
without limitation, the fees and disbursements of its legal counsel, and to
compensate the Arranger in an amount to be mutually agreed upon.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
<PAGE>
Lender agrees promptly to notify the Borrower 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 each Lender and
its Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in
Section 3.01) when it shall have been executed by the Borrower and the Agents
and when the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agents and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations. (a)
Each Lender (other than the Designated Bidders) may assign to one or more
Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under
this Agreement (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 or an integral multiple
of $100,000 in excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with any Revolving Credit
Note subject to such assignment and a processing and recordation fee of $
2,500 (to be paid by the assigning Lender). Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or
<PAGE>
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Revolving Credit Note a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, a new Revolving Credit Note to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(d) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than _____
such designations, (ii) each such Lender making one or more of such
designations shall retain the right to make Competitive Bid Advances as a
Lender pursuant to Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation shall execute
and deliver to the Administrative Agent, for its acceptance and recording in
the Register, a Designation Agreement. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Designation Agreement, the designee thereunder shall be a party hereto with a
right to make Competitive Bid Advances as a Lender pursuant to Section 2.03
and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm
and agree with each other and the other parties hereto as follows: (i) such
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such Lender makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
<PAGE>
the Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such designee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon the Administrative Agent, such
designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been
completed and is substantially in the form of Exhibit D hereto, (i) accept
such Designation Agreement, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and, with respect to
Lenders other than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by
the Borrower therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
<PAGE>
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee,
designee or participant or proposed assignee, designee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided that, prior to any such disclosure, the assignee,
designee or participant or proposed assignee, designee or participant shall
agree to preserve the confidentiality of any Confidential Information relating
to the Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither any Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors, to
an Agent or a Lender and, as contemplated by Section 8.07(i), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process, (c) to any
rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. 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. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York, New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or the Notes, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
<PAGE>
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
<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.
NEW ENGLAND ELECTRIC SYSTEM
By_________________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
By_________________________________
Title:
BANKBOSTON, N.A.,
as Administrative Agent
By_________________________________
Title:
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent
By_________________________________
Title:
<PAGE>
Initial Lenders
Commitment
$ [NAME OF INITIAL LENDER]
By_________________________________
Title:
$ [NAME OF INITIAL LENDER]
By_________________________________
Title:
[ETC.]
$500,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
NEW ENGLAND ELECTRIC SYSTEM
$500,000,000 5 YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 1997
FOR VALUE RECEIVED, the undersigned, NEW ENGLAND ELECTRIC SYSTEM,
a Massachusetts trust (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$ [amount of the
Lender's Commitment in figures] or, if less, the aggregate principal amount of
the Revolving Credit Advances made by the Lender to the Borrower pursuant to
the Credit Agreement dated as of _______________, 1997 among the Borrower, the
Lender and certain other lenders parties thereto, BankBoston, N.A. as
Administrative Agent for the Lender and such other lenders, Merrill Lynch
Capital Corporation, as Syndication Agent, and Credit Suisse First Boston, as
Documentation Agent (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to BankBoston, as Administrative Agent, at
_________________________, ____________________, __________, in same day
funds. Each Revolving Credit Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Revolving Credit Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of Revolving Credit
Advances by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
NEW ENGLAND ELECTRIC SYSTEM
By_________________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Prinicipal Notation
Date Advance or Prepaid Balance Made By
- ---- -------- -------------- ----------------- -------
<PAGE>
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 1997
FOR VALUE RECEIVED, the undersigned, NEW ENGLAND ELECTRIC SYSTEM,
a Massachusetts trust (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement dated as of
_______________, 1997 among the Borrower, the Lender and certain other lenders
parties thereto, BankBoston, N.A., as Administrative Agent for the Lender and
such other lenders, Merrill Lynch Capital Corporation, as Syndication Agent,
and Credit Suisse First Boston, as Documentation Agent (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being
used herein as therein defined)), on _______________, 199_, the principal
amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in
full, at the interest rate and payable on the interest payment date or dates
provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the
United States of America to _________________________ for the account of the
Lender at the office of _________________________, at
_________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
<PAGE>
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
NEW ENGLAND ELECTRIC SYSTEM
By___________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.
<PAGE>
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
BankBoston, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, New England Electric System, refers to the Credit
Agreement, dated as of _______________, 1997 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein
as therein defined), among the undersigned, certain Lenders party thereto,
BankBoston, N.A., as Administrative Agent for said Lenders, Merrill Lynch
Capital Corporation, as Syndication Agent, and Credit Suisse First Boston as
Documentation Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02 of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, 199_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is _____
month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 4.01
of the Credit Agreement Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
<PAGE>
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
Very truly yours,
NEW ENGLAND ELECTRIC SYSTEM
By____________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.
<PAGE>
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
BankBoston, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
____________________
____________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, New England Electric System, refers to the Credit
Agreement, dated as of _______________, 1997 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein
as therein defined), among the undersigned, certain Lenders parties thereto,
BankBoston, N.A., as Agent for said Lenders, Merrill Lynch Capital
Corporation, as Syndication Agent, and Credit Suisse First Boston, as
Documentation Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Competitive
Bid Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result
of which the information concerning the undersigned that has been
provided to the Agent and each Lender by the undersigned in connection
with the Credit Agreement would include an untrue statement of a
material fact or omit to state any material fact or any fact necessary
to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and
<PAGE>
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
Very truly yours,
NEW ENGLAND ELECTRIC SYSTEM
By_____________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.
<PAGE>
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
_______________, 1997 (as amended or modified from time to time, the "Credit
Agreement") among New England Electric System, a Massachusetts trust (the
"Borrower"), the Lenders (as defined in the Credit Agreement), BankBoston,
N.A., as agent for the Lenders (the "Administrative Agent"), Merrill Lynch
Capital Corporation, as Syndication Agent, and Credit Suisse First Boston, as
Documentation Agent. Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified on Schedule
1 hereto of all outstanding rights and obligations under the Credit Agreement
(other than in respect of Competitive Bid Advances and Competitive Bid Notes).
After giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. 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
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the
Revolving Credit Note held by the Assignor and requests that the
Administrative Agent exchange such Revolving Credit Note for a new Revolving
Credit Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Revolving Credit
Notes payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 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 and Acceptance; (ii) agrees that it will, independently and
without reliance upon any Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes each Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to such Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto;
<PAGE>
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue
Service forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it, and the fee set forth in Section 8.07(a) of the Credit Agreement, will be
delivered to the Agent for acceptance and recording by the Administrative
Agent. The effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the Administrative Agent,
unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and
(ii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Revolving Credit Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Revolving Credit Notes for periods prior to
the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit Advances
assigned:$__________
Principal amount of Revolving Credit Note payable to Assignee:
$__________
Principal amount of Revolving Credit Note payable to Assignor:
$__________
Effective Date: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By_____________________________
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By______________________________
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
<PAGE>
Accepted [and Approved] this
__________ day of _______________, 199_
_________________________, as Agent
By________________________________
Title:
[Approved this __________ day
of _______________, 199_
[NEW ENGLAND ELECTRIC SYSTEM
By____________________________
Title:
The name "New England Electric System" means the trustee or trustees for the
time being (as trustee or trustees but not personally) under an agreement and
declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which as amended has been filed with the Secretary
of the Commonwealth of Massachusetts. Any agreement, obligation or liability
made, entered into or incurred by or on behalf of New England Electric System
binds only its trust estate, and no shareholder, director, trustee, officer or
agent thereof assumes or shall be held to any liability therefor.]
<PAGE>
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Credit Agreement dated as of
_______________, 1997 (as amended or modified from time to time, the "Credit
Agreement") among New England Electric System, a Massachusetts trust (the
"Borrower"), the Lenders (as defined in the Credit Agreement), BankBoston,
N.A., as agent for the Lenders (the "Administrative Agent"), Merrill Lynch
Capital Corporation, as Syndication Agent, and Credit Suisse First Boston, as
Documentation Agent. Terms defined in the Credit Agreement are used herein
with the same meaning.
_________________________ (the "Designor") and
_________________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Competitive
Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes
no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. The Designee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and
without reliance upon any Agent, the Designor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is a Designated Bidder;
(iv) appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to such Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; and (v) agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
for this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on
the signature page hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right to make Competitive Bid Advances as a Lender pursuant to Section 2.03 of
the Credit Agreement and the rights and obligations of a Lender related
thereto.
<PAGE>
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation 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. Delivery of an
executed counterpart of a signature page to this Designation Agreement by
telecopier shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly
authorized as of the date first above written.
Effective Date: _______________, 199__
[NAME OF DESIGNOR],
as Designor
By________________________________
Title:
[NAME OF DESIGNEE],
as Designee
By________________________________
Title:
Applicable Lending Office (and
address for notices):
[Address]
Accepted this ____ day
of _______________, 199_
_________________________, as Agent
By________________________________
Title:
<PAGE>
EXHIBIT E - FORM OF
OPINION OF ASSISTANT GENERAL COUNSEL
FOR THE BORROWER
[TO COME]
<PAGE>
[Effective Date]
[To each of the Lenders party
to the Credit Agreement referred to below
and to BankBoston, N.A., as Administrative
Agent thereunder]
NEW ENGLAND ELECTRIC SYSTEM
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(iv)
of the Credit Agreement, dated as of _______________, 1997 (the "Credit
Agreement"), among New England Electric System (the "Borrower"), the Lenders
parties thereto, BankBoston, N.A., as Administrative Agent for said Lenders,
Merrill Lynch Capital Corporation, as Syndication Agent, and Credit Suisse
First Boston, as Documentation Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
The undersigned is the Assistant General Counsel as counsel for
the Borrower in connection with the preparation, execution and delivery of the
Credit Agreement.
In that connection, we have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
(3) The agreement and declaration of trust of the Borrower
and all amendments thereto (the "Charter").
[(4) The by-laws of the Borrower and all amendments thereto
(the "By-laws").]
(5) A certificate of the Secretary of State of
Massachusetts, dated _______________, 1997, attesting to the
continued existence and good standing of the Borrower in that
State.
We have also examined the originals, or copies certified to our satisfaction,
of the documents listed in a certificate of the chief financial officer of the
Borrower, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes
and other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect the
Borrower's right to borrow money or the Borrower's obligations under the
Credit Agreement or the Notes. In addition, we have examined the originals,
or copies certified to our satisfaction, of such other corporate records of
the Borrower, certificates of public officials and of officers of the
Borrower, and agreements, instruments and other documents, as we have deemed
necessary as a basis for the opinions expressed below. As to questions of
<PAGE>
fact material to such opinions, we have, when relevant facts were not
independently established by us, relied upon certificates of the Borrower or
its officers or of public officials. We have assumed the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the
Initial Lenders and the Agent.
Our opinions expressed below are limited to the law of the
State of [New York][, the General Corporation Law of the State of Delaware]
and the Federal law of the United States. [Insofar as the opinions expressed
in paragraphs 2, 3 and 4 below relate to matters that are governed by the laws
of the State of New York, we have relied on the opinion of
____________________, special New York counsel for the Borrower, a copy of
which is attached hereto.]
Based upon the foregoing and upon such investigation as we
have deemed necessary, we are of the following opinion:
1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
_______________.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes, and the
consummation of the transactions contemplated thereby, are
within the Borrower's trust powers, have been duly authorized
by all necessary trust action, and do not contravene (i) the
Charter[ or the By-laws] or (ii) any law, rule or regulation
applicable to the Borrower (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) any contractual or legal restriction contained
in any document listed in the Certificate or, to the best of
our knowledge, contained in any other similar document. The
Credit Agreement and the Notes have been duly executed and
delivered on behalf of the Borrower.
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the
due execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, except for the authorizations,
approvals, actions, notices and filings listed on
Schedule 4.01(c) to the Credit Agreement, all of which have
been duly obtained, taken, given or made and are in full force
and effect.
4. The Credit Agreement is, and after giving effect to
the initial Borrowing, the Notes will be, legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
5. To the best of our knowledge, there are no pending or
overtly threatened actions or proceedings against the Borrower
or any of its Subsidiaries before any court, governmental
agency or arbitrator that purport to affect the legality,
validity, binding effect or enforceability of the Credit
Agreement or any of the Notes or the consummation of the
transactions contemplated thereby or that are likely to have a
materially adverse effect upon the financial condition or
operations of the Borrower or any of its Subsidiaries.
<PAGE>
6. In any action or proceeding arising out of or relating to
the Credit Agreement or the Notes in any court of the State of _______________
or in any Federal court sitting in the State of _______________, such court
would recognize and give effect to the provisions of Section 8.09 of the
Credit Agreement wherein the parties thereto agree that the Credit Agreement
and the Notes shall be governed by, and construed in accordance with, the laws
of the State of New York. Without limiting the generality of the foregoing, a
court of the State of _______________ or a Federal court sitting in the State
of _______________ would apply the usury law of the State of New York, and
would not apply the usury law of the State of _______________, to the Credit
Agreement and the Notes. However, if a court of the State of _______________
or a Federal court sitting in the State of _______________ were to hold that
the Credit Agreement and the Notes are governed by, and to be construed in
accordance with, the laws of the State of _______________, the Credit
Agreement and the Notes would be, under the laws of the State of
_______________, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms.]
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 4 above as to enforceability
is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(b) Our opinion in paragraph 4 above as to enforceability
is subject 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).
(c) We express no opinion as to (i) Section 2.14 of the
Credit Agreement insofar as it provides that any Lender
purchasing a participation from another Lender pursuant thereto
may exercise set-off or similar rights with respect to such
participation, (ii) [other provisions that may be added to the
Credit Agreement when it is not clear whether or to what extent
such provisions are enforceable], and (iii) the effect of the
law of any jurisdiction other than the State of _______________
wherein any Lender may be located or wherein enforcement of the
Credit Agreement or the Notes may be sought that limits the
rates of interest legally chargeable or collectible.
Very truly yours,
<PAGE>
EXHIBIT F
November 25, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: New England Electric System File No. 70-9109
Dear Commissioners:
New England Electric System (NEES) filed an
Application/Declaration on Form U-1 on September 23, 1997,
relating to various short-term borrowings by NEES in amounts not
to exceed a maximum aggregate principal amount of $500,000,000
outstanding at any one time.
NEES proposes to enter into a revolving credit agreement
(Credit Agreement) with a group of banks, financial institutions,
and other institutional lenders (Banks) headed by Merrill Lynch
Capital Corporation, as syndication agent, BankBoston, N.A., as
administrative agent, and Credit Suisse First Boston, as
documentation agent, as agents for the Banks. Under the Credit
Agreement, the Banks agree to lend to NEES, on a short-term
revolving credit basis, their respective shares of an aggregate
commitment in the principal amount of up to $500 million. This
commitment would reduce to $400 million after three years and
$300 million after four years. The proposed term of the Credit
Agreement is five years. The terms of the Credit Agreement are
more fully described in Application/Declaration Form U-1 in the
above-mentioned file.
The proceeds from the proposed loan may be applied to
facilitate a share buyback program, investments, contributions to
its subsidiary, New England Power Company, and other general
corporate purposes.
NEES has also requested authority to borrow from banks for
short-term lines of credit, for various purposes, including
support of commercial paper. NEES also proposes to issue and
sell commercial paper directly to commercial paper dealers.
Borrowings from banks will be evidenced by notes maturing in
less than one year from the date of issue. Borrowings through
commercial paper dealers will be evidenced by unsecured
promissory notes with maturities not exceeding 270 days.
<PAGE>
The maximum aggregate amount of debt outstanding, whether
bank debt (including under the Credit Agreement) or commercial
paper, would not exceed $500 million at any one time.
It is my opinion that NEES is a voluntary association duly
created in The Commonwealth of Massachusetts under an Agreement
and Declaration of Trust dated as of January 2, 1926, as amended;
that the Trustee of NEES, State Street Bank and Trust Company,
has power, with the consent or at the direction of the NEES Board
of Directors, to borrow money, and to issue bonds or other
securities or obligations therefor; and that the Board of
Directors of NEES has authorized the proposed borrowing,
including the Credit Agreement, to a maximum of $500,000,000. No
vote of the shareholders of NEES is required, nor is the approval
of any state or Federal commission necessary to permit NEES to
make such borrowings, other than your Commission under the Public
Utility Holding Company Act of 1935.
Based upon the foregoing and subject to necessary action by
the Commission under the Public Utility Holding Company Act of
1935, it is my opinion that, in the event the proposed
transactions are carried out in accordance with the statement on
Form U-1, as amended:
(a) All state laws applicable to the proposed transactions
will have been complied with;
(b) NEES is validly organized and duly existing, and any
notes representing the borrowings, when duly executed
and delivered and when the consideration therefore has
been received, will be valid and binding obligations of
NEES in accordance with their terms, subject to laws of
general application affecting the rights and remedies
of creditors; and
(c) The consummation of the proposed transactions will not
violate the legal rights of the holders of any
securities issued by NEES or any associate company
thereof.
I hereby consent to the use of this opinion in connection
with the statement on Form U-1, as amended, filed with the
Securities and Exchange Commission with reference to said
transactions.
Very truly yours,
s/Robert King Wulff
Robert King Wulff
Corporation Counsel
