U.S. $90,000,000
TERM CREDIT AGREEMENT
Dated as of November 9, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ENERGY CORPORATION
as Borrower
THE BANKS NAMED HEREIN
as Banks
BANK ONE, N.A.
as Administrative Agent
TERM CREDIT AGREEMENT
Dated as of November 9, 2001
THIS TERM CREDIT AGREEMENT (the "Agreement") is made by and
among:
(i) NORTH ATLANTIC ENERGY CORPORATION, a corporation duly
organized and validly existing under the laws of the State of New
Hampshire (the "Borrower");
(ii) The financial institutions (the "Banks") listed on the
signature pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto;
(iii) BANK ONE, N.A. (main office Chicago) ("Bank One") as
administrative agent (the "Administrative Agent") for the Lenders
hereunder.
PRELIMINARY STATEMENT
The Borrower wishes to refinance the indebtedness
outstanding under its Term Credit Agreement, dated as of November
9, 2000 (the "Existing Debt" and the "Existing Credit Agreement",
respectively). Subject to the conditions and upon the terms of
this Agreement and the Notes referred to herein, the Borrower
wishes to borrow, and the Banks have agreed, severally and not
jointly, to lend, an aggregate amount of up to $90,000,000 for
such purpose.
Based upon the foregoing and subject to the conditions and
upon the terms set forth in this Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Adjusted Net Income" of the Borrower, for any period,
means the Borrower's net income for such period, determined
in accordance with generally accepted accounting principles
on a basis consistent with the standards referred to in
Section 1.03 hereof, and:
(i) increased by the amount of current and deferred
federal and state income taxes for such period (calculated on
a basis consistent with footnote 5 to the Borrower's financial
statements included in its 2000 Annual Report);
(ii) decreased by the amount of Income Taxes-credit (as
included under "Other Income") for such period; and
(iii) increased by the Borrower's Interest Expense
for such period.
"Advance" means an Advance by a Lender to the Borrower
pursuant to Section 3.01 hereof, and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be
a "Type" of Advance). The Type of an Advance may change
from time to time as and when such Advance is Converted.
For purposes of this Agreement, all Advances of a Lender (or
portions thereof) made of, or Converted into, the same Type
and Interest Period on the same day shall be deemed to be a
single Advance by such Lender until repaid or next
Converted.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of
the management and policies of such entity, whether through
the ownership of voting securities, by contract or
otherwise.
"Alternate Base Rate" means, for any Interest Period or
any other period, a fluctuating interest rate per annum
equal at all times to the highest from time to time of:
(a) the rate of interest announced publicly by Bank One,
Chicago, Illinois, from time to time, as Bank One's corporate
base rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate from time to time.
Each change in the Alternate Base Rate shall take
effect concurrently with any change in such base rate or
Federal Funds Rate.
"Applicable Lending Office" means, with respect to each
Lender, (i)(A) such Lender's "Domestic Lending Office" in
the case of a Base Rate Advance, and (B) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance, in each case as specified opposite such Lender's
name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender, or (ii) such other
office or affiliate of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative
Agent.
"Applicable Margin" means, on any date for any
Eurodollar Rate Advance, the applicable percentage per
annum set forth below, based on the then Applicable Rating
Level.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
1.125% 1.375% 1.50% 2.00%
Any change in the Applicable Margin caused by a change in
the Applicable Rating Level shall take effect immediately
upon such change in the Applicable Rating Level.
"Applicable Rate" means:
(i) in the case of each Base Rate Advance, a rate per
annum equal at all times to the Alternate Base Rate in effect
from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising
part of the same Borrowing, a rate per annum during each Interest
Period equal at all times to the sum of the Eurodollar Rate for
such Interest Period plus the Applicable Margin in effect from
time to time during such Interest Period.
"Applicable Rating Level" on any date for any
Eurodollar Rate Advance, shall be determined in accordance
with the following table on the basis of the ratings of
Moody's and S&P, respectively, then applicable to the senior
secured debt of PSNH:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇/▇▇▇▇ Baa2/BBB Ba1/BB+ Below Ba1 or
or higher or higher or higher Below BB+
In the event that the rating assigned by S&P to the senior
secured debt of PSNH and the rating assigned by Moody's to
the senior secured debt of PSNH do not correspond to the
same Applicable Rating Level, then the lower of the two
ratings shall determine the Applicable Rating Level, except
that if such ratings from S&P and Moody's differ by two
levels, the Level that is one Level higher than the Level
corresponding to the lower of such ratings shall determine
the Applicable Rating Level.
"Arranger" means Banc One Capital Markets, Inc.
"Base Rate Advance" means an Advance in respect of
which the Borrower has selected in accordance with
Article III hereof, or this Agreement otherwise provides
for, interest to be computed on the basis of the Alternate
Base Rate.
"Borrowing" means a borrowing consisting of Advances of
the same Type and Interest Period made on the same day by
the Lenders, ratably in accordance with their respective
Commitments. For purposes of this Agreement: (i) each
Borrowing shall be deemed to be of the same "Type" as the
Advances comprising such Borrowing, and (ii) all Advances
made of, or Converted into, the same Type and Interest
Period on the same day shall be deemed a single Borrowing
hereunder until repaid or next Converted.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City, or
Chicago, Illinois and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings
are carried on in the London interbank market.
"Closing Date" means the day upon which each of the
conditions precedent enumerated in Section 5.01 hereof shall
be fulfilled to the satisfaction of the Lenders, the
Administrative Agent and the Borrower. All transactions
contemplated to occur on the Closing Date shall take place
on or prior to November 9, 2001, at the offices of King &
▇▇▇▇▇▇▇▇, ▇▇▇▇ Avenue of the Americas, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 A.M. (New York City time), or such other
place and time as the parties hereto may mutually agree.
"Commitment" means, for each Lender, the amount set
forth opposite such Lender's name on Schedule IV hereto, or,
if such Lender has entered into one or more Lender
Assignments, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to
Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders'
Commitments hereunder.
"Common Equity" means, as of any day, the aggregate of
all amounts that would, in accordance with generally
accepted accounting principles applied on a basis consistent
with the standards referred to in Section 1.03 hereof,
appear on the balance sheet of the Borrower as of such day
as the sum of (i) the aggregate of the par value of, or
(ii) stated capital represented by, the outstanding shares
of common stock of the Borrower and the surplus, paid-in,
earned and other, if any, of the Borrower.
"Common Equity Ratio" means, as of any day, the ratio
of (i) Common Equity as of such day to (ii) Total
Capitalization as of such day.
"Confidential Information" has the meaning assigned to
that term in Section 10.08.
"Conversion", "Convert" or "Converted" each refers to a
conversion of Advances pursuant to Section 3.02, including,
but not limited to any selection of a longer or shorter
Interest Period to be applicable to such Advances or any
conversion of an Advance as described in Section 3.02(c).
"Debt" means, for any Person, without duplication
(including, for example, Debt evidenced by notes or
securities that are supported by letters of credit and
reimbursement obligations in respect of such letters of
credit), (i) indebtedness of such Person for borrowed money,
(ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) obligations of such Person to pay the deferred
purchase price of property or services, (iv) obligations of
such Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
principles, recorded as capital leases, (v) obligations
(contingent or otherwise) of such Person under reimbursement
or similar agreements with respect to the issuance of
letters of credit, (vi) net obligations (contingent or
otherwise) of such Person under interest rate swap, "cap",
"collar" or other hedging agreements, (vii) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (vi), above,
and (viii) liabilities in respect of unfunded vested
benefits under ERISA Plans.
"Disclosure Documents" means the Borrower's 2000 Annual
Report, the Borrower's Annual Report on Form 10-K for the
year ended December 31, 2000, the Borrower's Quarterly
Reports on Form 10-Q for the quarter ended March 31 and the
financial statements previously delivered pursuant to
Section 7.03(ii) of the Existing Credit Agreement.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which is
a "commonly controlled entity" of the Borrower within the
meaning of the regulations under Section 414 of the Internal
Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
an ERISA Multiemployer Plan) maintained for employees of the
Borrower or any ERISA Affiliate and covered by Title IV of
ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under such
regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of the Borrower
or any of its ERISA Affiliates from an ERISA Plan or an
ERISA Multiemployer Plan during a plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to
terminate an ERISA Plan or an ERISA Multiemployer Plan or
the treatment of an ERISA Plan or an ERISA Multiemployer
Plan under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any ERISA Plan or ERISA Multiemployer
Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest 1/100 of 1% per annum) of the
rate per annum at which deposits in U.S. Dollars are offered
by the principal office of each of the Reference Banks in
London, England in the amount of such Reference Bank's
Eurodollar Rate Advance to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period and for a
period equal to such Interest Period. The Eurodollar Rate
for the Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by
the Administrative Agent on the basis of the applicable
rates (averaged as set forth above) furnished to and
received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of
Sections 3.05(d) and 4.03(g).
"Eurodollar Rate Advance" means an Advance in respect
of which the Borrower has selected in accordance with
Article III hereof, and this Agreement provides for,
interest to be computed on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender for each
Interest Period for each Eurodollar Rate Advance means the
reserve percentage applicable during such Interest Period
(or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so
applicable) under Regulation D or other regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement, without benefit of or credit for proration,
exemptions or offsets) for such Lender with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 8.01.
"Existing Credit Agreement" has the meaning assigned to
that term in the Preliminary Statement.
"Existing Debt" has the meaning assigned to that term
in the Preliminary Statement.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published on the next succeeding Business Day the average of
the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Final Settlement" means the Agreement to Settle PSNH
Restructuring, dated August 2, 1999 and subsequently revised
and conformed in compliance with Order No. 23,549 of the New
Hampshire Public Utilities Commission ("NHPUC") and executed
on September 22, 2000 by or on behalf of the Governor and
Attorney General of the State of New Hampshire, the NHPUC,
PSNH and others, together with the transactions contemplated
thereby.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body, including any
renewal thereof. For purposes of this Agreement,
Chapter 362-C of the Revised Statutes Annotated of New
Hampshire, in effect on the date hereof, shall be deemed to
be a Governmental Approval.
"Hazardous Substance" means any waste, substance or
material identified as hazardous or toxic by any office,
agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Interest Coverage Ratio" means, for any period, the
ratio of (i) Adjusted Net Income for such period to
(ii) Interest Expense for such period.
"Interest Expense" means, for any period, the aggregate
interest expense of the Borrower for such period, determined
in accordance with generally accepted accounting principles
on a basis consistent with the standards referred to in
Section 1.03 hereof.
"Interest Period" has the meaning assigned to that term
in Section 3.05(a) hereof.
"Joint Ownership Agreement" means the Agreement for
Joint Ownership, Construction and Operation of New Hampshire
Nuclear Units, among PSNH and the other parties named
therein, dated as of May 1, 1973, as amended from time to
time.
"Lender Assignment" means an assignment and agreement
entered into by a Lender and an assignee, and accepted by
the Administrative Agent, in substantially the form of
Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on
the signature pages hereof, and each assignee that shall
become a party hereto pursuant to Section 10.07(a).
"Lien" has the meaning assigned to that term in
Section 7.02(a) hereof.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) hold at least
66-2/3% of the then aggregate unpaid principal amount of the
Advances owing to the Lenders or (ii) if no Advances are
then outstanding, represent at least 66-2/3% of the
Commitments. Determination of those Lenders satisfying the
criteria specified above for action by the Majority Lenders
shall be made by the Administrative Agent and shall be
conclusive and binding on all parties absent manifest error.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"NHPUC Settlement Order" means Order 23,549 dated
September 8, 2000 of the New Hampshire Public Utilities
Commission issued in Docket DE 99-099.
"2000 Annual Report" means the Annual Report of the
Borrower included in the Borrower's Annual Report on
Form 10-K for the year ended December 31, 2000.
"Note" means a promissory note of the Borrower payable
to the order of a Lender, in substantially the form of
Exhibit 1.01A hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Advances
made by such Lender.
"Note of Borrowing" has the meaning assigned to that
term in Section 3.01(a) hereof.
"Notice of Conversion" has the meaning assigned to that
term in Section 3.02(a) hereof.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation and a wholly-owned subsidiary of NU.
"NU System Money Pool" means the money pool described
in the application/declaration, as amended, of NU and
certain of its Subsidiaries, filed with the Securities and
Exchange Commission in File No. 70-8875, 70-9711 and 70-
9755, as amended from time to time.
"Other Taxes" has the meaning assigned to that term in
Section 4.05(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Permitted Investments" means each and any of the
following; provided that no such Permitted Investment shall
have a final maturity not later than 12 months from the date
of investment therein.
(i) direct obligations of the United States of America,
or obligations guaranteed as to principal and interest by the
United States of America;
(ii) certificates of deposit, eurodollar certificates of
depositor bankers' acceptances issued, or time deposits held,
or investment contracts guaranteed, by (A) any Bank; or
(B) anyother commercial bank, trust company, savings and loan
association or savings bank organized under the laws of the
United States of America, or any State thereof, or of any
other country which is a member of the Organization for Economic
Cooperation and Development (or a political subdivision of any
such country) having outstanding unsecured indebtedness that is
rated (on the date of acquisition thereof) AA- or better by S&P
or Aa3 or better by Moody's (or an equivalent rating by another
nationally recognized credit rating agency of similar standing
if neither of such corporations is then in the business of rating
unsecured bank indebtedness);
(iii) obligations with any Lender, or any other bank or
trust company described in clause (ii), above, in respect of the
repurchase of obligations of the type described in clause (i),
above, provided that such repurchase obligations shall be fully
secured by obligations of the type described in said
clause (i) and the possession of such obligations shall be
transferred to, and segregated from other obligations owned by,
such Lender or such other bank or trust company;
(iv) commercial paper rated (on the date of acquisition
thereof) A-1 or P-1 or better by S&P or Moody's, respectively
(or an equivalent rating by another nationally recognized credit
rating agency of similar standing if neither of such corporations
is then in the business of rating commercial paper).
(v) deposits with or loans to the NU System Money Pool on
the terms and conditions from time to time applicable to other
participants therein, but in no event on terms less favorable to
the Borrower than are applicable to such other participants.
(vi) investments in securities of industrial and other
nonutility local enterprises described in Rule 40(a)(5) under
PUHCA; provided, however, that the total amount invested shall
not exceed (i) $1,000,000 in any calendar year and (ii) $5,000,000
at any one time outstanding.
(vii) United States Securities and Exchange Commission
registered money market mutual funds conforming to Rule 2a-7 of
the Investment Company Act of 1940 in effect in the United
States, that invest primarily in direct obligations issued by the
United States Treasury and repurchase obligations backed by those
obligations, and rated in the highest category by S&P and
Moody's.
"Permitted Liens" has the meaning ascribed to that term
in Section 7.02(a).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
estate, unincorporated association, joint venture or other
entity, or a government or any political subdivision or
agency thereof.
"PSNH" means Public Service Company of New Hampshire, a
corporation organized under the laws of the State of New
Hampshire.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Reference Banks" means, initially, Bank One, Barclays,
Fleet and Union, and shall include any other or different
Lender(s) as may from time to time agree to act as Reference
Banks hereunder with the consent of the Borrower.
"Register" has the meaning specified in
Section 10.07(c).
"S&P" means Standard & Poor's Rating Group or any
successor thereto.
"Seabrook" means the nuclear-fueled, steam-electric
generating plant at a site located in Seabrook, New
Hampshire, and all real property interests, fixtures, and
other assets related thereto.
"Seabrook Interests" means all of the Borrower's right,
title and interest in and to Seabrook, presently
constituting 35.98201% of Seabrook.
"Significant Contracts" means the Unit Contract and the
Tax Allocation Agreement.
"Tax Allocation Agreement" means the Tax Allocation
Agreement dated as of January 1, 1990 among NU and the
members of the consolidated group of which NU is the common
parent, including the Borrower, as amended and as the same
may be further amended, modified or supplemented in
accordance with the terms hereof and thereof.
"Taxes" has the meaning assigned to that term in
Section 4.05(a) hereof.
"Termination Date" means the earliest to occur of
(i) November 8, 2002, (ii) the date of termination in whole
of the Commitments pursuant to Section 8.02 or (iii) the
date of acceleration of all amounts payable hereunder and
under the Notes pursuant to Section 8.02.
"Total Capitalization" means, as of any day, the
aggregate of all amounts that would, in accordance with
generally accepted accounting principles applied on a basis
consistent with the standards referred to in Section 1.03
hereof, appear on the balance sheet of the Borrower as of
such day as the sum of (i) the principal amount of all Debt
of the Borrower on such day, (ii) the par value of, or
stated capital represented by, the outstanding shares of all
classes of common and preferred shares of the Borrower on
such day and (iii) the surplus of the Borrower, paid-in,
earned and other, if any, on such day.
"Type" has the meaning assigned to such term (i) in the
definition of "Advance" when used in such context and
(ii) in the definition of "Borrowing" when used in such
context.
"Unit Contract" means the Unit Contract, dated as of
June 1, 1992, between the Borrower and PSNH, as amended by
that First Revised Unit Contract dated as of January 12,
2001, as the same may from time to time be amended, modified
or supplemented in accordance with the terms hereof and
thereof.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default.
SECTION 1.02. Computation of Time Periods.
In the computation of periods of time under this Agreement
any period of a specified number of days or months shall be
computed by including the first day or month occurring during
such period and excluding the last such day or month. In the
case of a period of time "from" a specified date "to" or "until"
a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles applied on a basis consistent with the financial
statements included in the Borrower's 2000 Annual Report, except
for such changes, if any, as are consistent with generally
accepted accounting principles and are disclosed to the Lenders.
Any such change that would affect the calculation of any figure
or ratio contained in any covenant or agreement herein to be
performed or observed by the Borrower shall be disregarded for
such purpose unless and until the Borrower and the Majority
Lenders shall have agreed upon a replacement figure or ratio
that, after giving effect to such change, reflects the original
intent of the parties. The parties agree to negotiate in good
faith to reach any such agreement.
SECTION 1.04. Computations of Outstandings.
Whenever reference is made in this Agreement to the
principal amount outstanding on any date under this Agreement,
such reference shall refer to the sum of the aggregate principal
amount of all Advances outstanding on such date, after giving
effect to all Advances to be made on such date and the
application of the proceeds thereof.
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments.
Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower on the
Closing Date in an aggregate amount not to exceed such Lender's
Commitment. In no event may any Advance repaid or prepaid
hereunder be reborrowed.
SECTION 2.02. Fees.
The Borrower agrees to pay to the Arranger and the
Administrative Agent, for their respective accounts, such other
fees in such amounts and payable at such times, as agreed among
them from time to time in writing.
SECTION 2.03. Termination of the Commitments.
(a) The Commitment of each Lender shall automatically
terminate upon the first to occur of (i) the making of the
Advances and (ii) 5:00 P.M. (New York City time) on
November 9, 2001.
ARTICLE III
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 3.01. Initial Funding.
(a) All Borrowings (other than Borrowings resulting solely
from Conversions) shall be made simultaneously on the Closing
Date and shall consist of Advances of the same Type and Interest
Period made on such day by the Lenders ratably according to their
respective Commitments. The Borrower may request that more than
one Borrowing, but no more than six Borrowings, be made on the
Closing Date, within the limits of the Commitments. All such
Borrowings shall be made on notice, given not later than
10:00 A.M. (New York City time) three Business Days prior to the
date of the proposed Closing Date, by the Borrower to the
Administrative Agent, who shall give to each Lender prompt notice
thereof on the same day such notice is received. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be in
substantially the form of Exhibit 3.01A hereto, specifying
therein the requested (i) Closing Date, (ii) Type of Advances
comprising such Borrowing and (iii) Interest Period for each such
Advance. Each requested Borrowing shall be subject to the
provisions of Sections 3.03, 4.03 and 5.02 hereof.
(b) Each Lender shall, before 12:00 noon (New York City
time) on the Closing Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's address referred to in Section 10.02, in
same day funds, such Lender's ratable portion of each Borrowing
to be made on such date. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Section 5.02, the Administrative Agent
will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received
notice from a Lender prior to the Closing Date that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of all or any Borrowings to be made on such date,
the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on such date
in accordance with subsection (b) of this Section 3.01 and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
If and to the extent that any such Lender (a "non-performing
Lender") shall not have so made such ratable portion available to
the Administrative Agent, the non-performing Lender and the
Borrower severally agree to repay (but without duplication) to
the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. Nothing herein shall in any way
limit, waive or otherwise reduce any claims that any party hereto
may have against any non-performing Lender.
(d) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
as a part of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender.
SECTION 3.02. Conversion of Advances.
So long as no Event of Default shall have occurred and be
continuing, the Borrower may from time to time after the Closing
Date elect to Convert any one or more Advances of any Type to one
or more Advances of the same or any other Type on the following
terms and subject to the following conditions:
(a) Each such Conversion shall be made as to all Advances
comprising a single Borrowing, on notice given not later than
10:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion by the Borrower to the
Administrative Agent, who shall give to each Lender prompt notice
thereof. Each such notice of Conversion (a "Notice of
Conversion") shall be in substantially the form of Exhibit 3.02A
hereto, specifying therein the requested (i) date of such
Conversion, (ii) Type of, and Interest Period applicable to, the
Advances proposed to be Converted, (iii) except in the case of a
Conversion described in subsection (c) below, Type of Advances to
which such Advances are proposed to be Converted, (iv) except in
the case of a Conversion to Base Rate Advances, the initial
Interest Period to be applicable to the Advances resulting from
such Conversion and (v) aggregate amount of Advances proposed to
be Converted. No Conversion may be requested by the Borrower
hereunder (and no Notice of Conversion shall be effective) unless
made in compliance with Section 3.03 hereof.
(b) The Borrower may not select an Interest Period of
greater than one month (in the case of Conversions to Eurodollar
Rate Advances) during the continuance of an Unmatured Default or
an Event of Default.
(c) If no Notice of Conversion in respect of an Advance is
received by the Administrative Agent as provided in
subsection (a) above with respect to any Eurodollar Rate Advance,
the Administrative Agent shall treat such absence of notice as a
deemed Notice of Conversion providing for each such Advance to be
Converted to a Base Rate Advance on the last day of the Interest
Period then in effect for such Advance.
SECTION 3.03. Other Terms Relating to the Making and
Conversion of Advances.
(a) Notwithstanding anything in Section 3.01 or 3.02 above
to the contrary:
(i) at no time shall more than six different
Borrowings be outstanding hereunder;
(ii) each Borrowing hereunder which is to be comprised
of Base Rate Advances shall be in an aggregate principal
amount of no less than $1,000,000.
(iii) each Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in the
aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Each Notice of Borrowing and Notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 3.04. Repayment of Advances.
The Borrower shall repay the entire principal amount of all
Advances together with all accrued and unpaid interest thereon on
the Termination Date.
SECTION 3.05. Interest.
(a) Interest Periods. The period between the date of each
Advance and the date of payment in full of such Advance shall be
divided into successive periods of months or days ("Interest
Periods") for purposes of computing interest applicable thereto.
The initial Interest Period for each Advance shall begin on the
day such Advance is made, and each subsequent Interest Period
shall begin on the last day of the immediately preceding Interest
Period for such Advance. All Advances comprising part of the
same Borrowing shall have the same Interest Period, as selected
by the Borrower in accordance with this Section 3.05(a). The
duration of each Interest Period shall be (i) in the case of any
Base Rate Advance, until the earlier of repayment of such Advance
in full or the Termination Date, and (ii) in the case of any
Eurodollar Rate Advance, 1, 2, 3, or 6 months, in each case as
the Borrower may, upon notice received by the Administrative
Agent in accordance with Sections 3.01(a) and 3.02, select;
provided, that, to assist the Borrower in minimizing breakage
costs in connection with any Mandatory Prepayment under Section
4.02(c) hereof, the Borrower may, during the 30-day period
preceding the anticipated closing date of the transaction giving
rise to such prepayment and for up to 30 days thereafter, elect
Interest Periods of one day, one week or other periods of less
than one month in respect of the principal amount of Eurodollar
Rate Advances to be prepaid, so long as dollar deposits of a
maturity corresponding to such Interest Period are available to
the Lenders in the interbank markets. If any such closing date
shall be postponed for more than 30 days, the Borrower may re-
invoke the Interest Period option set forth in the proviso to
this clause (a).
(b) Interest Rates. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender from
the date of such Advance until such principal amount shall be
paid in full, at the Applicable Rate for such Advance (except as
otherwise provided in this subsection (b)), payable as follows:
(i) Base Rate Advances. If such Advance is a Base
Rate Advance, interest thereon shall be payable quarterly in
arrears on the last day of March, June, September and
December in each year, commencing December, 2001, on the
date such Base Rate Advance shall be paid in full and on the
Termination Date; provided that during the continuation of
any Event of Default, each Base Rate Advance shall bear
interest at a rate per annum equal to 2% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances.
(ii) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable
on the last day of each Interest Period thereof and, if any
such Interest Period has a duration of more than three
months, also on the day of the third month during such
Interest Period which corresponds to the first day of such
Interest Period (or, if any such month does not have a
corresponding day, then on the last day of such month);
provided that during the continuation of an Event of
Default, each Eurodollar Rate Advance shall bear interest at
a rate per annum equal to the greater of (A) 2% per annum
above the Applicable Rate for such Advance and (B) 2% per
annum above the Alternate Base Rate.
(c) Other Amounts. Any other amounts payable hereunder
that are not paid when due shall (to the fullest extent permitted
by law) bear interest, from the date when due until paid in full,
at a rate per annum equal at all times to 2% per annum above the
Alternate Base Rate, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of the
Applicable Rate determined from time to time by the
Administrative Agent for each Advance. Each Reference Bank
agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish
such timely information, the Administrative Agent shall determine
such interest rate on the basis of the timely information
furnished by the remaining Reference Banks.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(a) The Borrower shall make each payment hereunder and
under the other Loan Documents not later than 1:00 P.M. (New York
City time) on the day when due in U.S. Dollars to the
Administrative Agent at its address referred to in Section 10.02
in same day funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the
payment of principal, interest, fees or other amounts payable to
the Lenders, to the respective Lenders to whom the same are
payable, for the account of their respective Applicable Lending
Offices, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of a Lender Assignment
and recording of the information contained therein in the
Register pursuant to Section 10.07, from and after the effective
date specified in such Lender Assignment, the Administrative
Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative
Agent, and each Lender, if and to the extent payment owed to the
Administrative Agent, or such Lender, as the case may be, is not
made when due hereunder (or, in the case of a Lender, under the
Note held by such Lender), to charge from time to time against
any or all of the Borrower's accounts with the Administrative
Agent, or such Lender, as the case may be, any amount so due.
(c) All computations of interest and other amounts pursuant
to Section 4.03 shall be made by the Lender claiming such
interest or amount, on the basis of a year of 360 days. All
other computations of interest and fees hereunder shall be made
by the Administrative Agent on the basis of a year of 360 days.
In each such case, such computation shall be made for the actual
number of days (including the first day, but excluding the last
day) occurring in the period for which such interest, fees or
other amounts are payable. Each such determination by the
Administrative Agent or a Lender shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any other Loan
Document shall be stated to be due, or the last day of an
Interest Period hereunder shall be stated to occur, on a day
other than a Business Day, such payment shall be made and the
last day of such Interest Period shall occur on the next
succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest and
fees hereunder; provided, however, that if such extension would
cause payment of interest on, or principal of, Eurodollar Rate
Advances to be made, or the last day of an Interest Period for a
Eurodollar Rate Advance to occur, in the next following calendar
month, such payment shall be made on the next preceding Business
Day and such reduction of time shall in such case be included in
the computation of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to the Lenders hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that
the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender
shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender, together with interest
thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments.
(a) Generally. The Borrower shall have no right to prepay
any principal amount of any Advances except in accordance with
subsections (b) and (c) below.
(b) Optional. The Borrower may, upon at least three
Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of Advances comprising part of the
same Borrowing, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal
amount prepaid and all other amounts, if any, payable in
connection therewith pursuant to Section 4.03(d); provided,
however, that each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000.
(c) Mandatory. Within two Business Days of the sale of the
Seabrook Interest or other termination of the Unit Contract
pursuant to the Final Settlement, the Borrower shall prepay one-
hundred percent (100%) of the aggregate outstanding principal
amount of Advances, together with accrued interest to the date of
such prepayment on the principal amount prepaid and all other
amounts, if any, payable in connection therewith pursuant to
Section 4.03(d).
SECTION 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof, the adoption of or
any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall (i) change
the basis of taxation of payments to any Lender of the principal
of or interest on any Eurodollar Rate Advance made by such Lender
or any fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of
such Lender or its Applicable Lending Office by the jurisdiction
in which such Lender has its principal office or in which such
Applicable Lending Office is located or by any political
subdivision or taxing authority therein), or (ii) shall impose,
modify or deem applicable any reserve, special deposit or similar
requirement against commitments or assets of, deposits with or
for the account of, or credit extended by, such Lender, or
(iii) shall impose on such Lender or the London interbank market
any other condition affecting this Agreement or Eurodollar Rate
Advances made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender of
agreeing to make, making or maintaining any Advance or to reduce
the amount of any sum received or receivable by such Lender
hereunder or under the Notes (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender upon demand
such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any
change after the date hereof in any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after
the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing
or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any
Applicable Lending Office of such Lender) or any Lender's holding
company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect
(i) of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a
consequence of this Agreement, the Commitment of such Lender
hereunder or the Advances made by such Lender pursuant hereto to
a level below that which such Lender or such Lender's holding
company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), or (ii) of increasing
or otherwise determining the amount of capital required or
expected to be maintained by such Lender or such Lender's holding
company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such
Lender pursuant hereto and other similar such commitments,
agreements or assets, then from time to time the Borrower shall
pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender or such Lender's holding company
for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each
Lender upon demand, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the Borrower and the Administrative Agent.
(d) Breakage Indemnity. The Borrower shall indemnify each
Lender against any loss, cost or reasonable expense which such
Lender may sustain or incur as a consequence of (i) any failure
by the Borrower to borrow or Convert any Advance hereunder after
irrevocable Notice of Borrowing or Notice of Conversion has been
given pursuant to Section 3.01 or 3.02, (ii) any payment,
prepayment or Conversion of a Eurodollar Rate Advance required or
permitted by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the
Interest Period applicable thereto, (iii) any default in payment
or prepayment of the principal amount of any Advance or any part
thereof or interest accrued thereon, as and when due and payable
(at the due date thereof, by irrevocable notice of prepayment or
otherwise) or (iv) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to
effect or maintain such Advance or any part thereof as a
Eurodollar Rate Advance. Such loss, cost or reasonable expense
shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Advance being paid, prepaid,
Converted or not borrowed (based on the Eurodollar Rate) for the
period from the date of such payment, prepayment, Conversion or
failure to borrow to the last day of the Interest Period for such
Advance (or, in the case of a failure to borrow, the Interest
Period for such Advance which would have commenced on the date of
such failure) over (B) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender
in reemploying the funds so paid, prepaid, Converted or not
borrowed for such period or Interest Period, as the case may be.
For purposes of this subsection (d), it shall be presumed that
each Lender shall have funded each such Advance with a fixed-rate
instrument bearing the rates and maturities designated in the
determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth
such Lender's claim for compensation hereunder and the amount
necessary to compensate such Lender or its holding company
pursuant to subsections (a) through (d) of this Section 4.03
shall be submitted in writing to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay each
Lender directly the amount shown as due on any such certificate
within 10 days after its receipt of the same. The failure of any
Lender to provide such notice or to make demand for payment under
this Section 4.03 shall not constitute a waiver of such Lender's
rights hereunder; provided that such Lender shall not be entitled
to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or
reserve if such demand is made more than three years following
such Lender's incurrence or sufferance thereof or more than one
year following such Lender's actual knowledge of the event giving
rise to such Lender's rights pursuant to such subsections. Each
Lender shall use reasonable efforts to ensure the accuracy and
validity of any claim made by it hereunder, but the foregoing
shall not obligate any Lender to assert any possible invalidity
or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrower
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Lender hereunder, whereupon the
right of the Borrower to select Eurodollar Rate Advances for
any Borrowing or Conversion shall be forthwith suspended
until such Lender shall withdraw such notice as provided
hereinbelow or shall cease to be a Lender hereunder pursuant
to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate
Advances made by it be Converted to Base Rate Advances, in
which event all such Eurodollar Rate Advances by all Lenders
shall be automatically Converted to Base Rate Advances as of
the effective date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall
promptly notify the other Lenders. Promptly upon becoming aware
that the circumstances that caused such Lender to deliver such
notice no longer exist, such Lender shall deliver notice thereof
to the Borrower and the Administrative Agent withdrawing such
prior notice (but the failure to do so shall impose no liability
upon such Lender). Promptly upon receipt of such withdrawing
notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and
obligations hereunder in accordance with Section 10.07(g)), the
Administrative Agent shall deliver notice thereof to the Borrower
and the Lenders and such suspension shall terminate. Prior to
any Lender giving notice to the Borrower under this subsection
(f), such Lender shall use reasonable efforts to change the
jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole
determination of such Lender, be otherwise disadvantageous to
such Lender. Any notice to the Borrower by any Lender shall be
effective as to each Eurodollar Rate Advance on the last day of
the Interest Period currently applicable to such Eurodollar Rate
Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be
unlawful, such notice shall be effective on the date of receipt
by the Borrower and the Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two
Reference Banks furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for Eurodollar Rate
Advances in connection with any proposed Borrowing or Conversion
or (ii) if the Majority Lenders shall notify the Administrative
Agent that the Eurodollar Rate will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances, the right of the
Borrower to select or receive such Eurodollar Rate Advances for
any Borrowing or Conversion shall be forthwith suspended until
the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist, and until such notification from the Administrative Agent
each requested Borrowing or Conversion into Eurodollar Rate
Advances hereunder shall be deemed to be a request for Base Rate
Advances.
SECTION 4.04. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise, but excluding any proceeds received by assignments or
sales of participations in accordance with Section 10.07 hereof
to a Person that is not an Affiliate of the Borrower) on account
of the Advances owing to it (other than pursuant to Section 4.03
hereof) in excess of its ratable share of payments on account of
the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participation in
the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation. Notwithstanding the foregoing, if
any Lender shall obtain any such excess payment involuntarily,
such Lender may, in lieu of purchasing participation from the
other Lenders in accordance with this Section 4.04, on the date
of receipt of such excess payment, return such excess payment to
the Administrative Agent for distribution in accordance with
Section 4.01(a).
SECTION 4.05. Taxes.
(a) All payments by the Borrower hereunder and under the
other Loan Documents shall be made in accordance with
Section 4.01, free and clear of and without deduction for all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case
of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender
or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 4.05) such Lender or the
Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or under any other Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and any Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 4.05) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. Any Lender's claim for such indemnification shall be
set forth in a certificate of such Lender setting forth in
reasonable detail the amount necessary to indemnify such Lender
pursuant to this subsection (c) and shall be submitted to the
Borrower and the Administrative Agent and shall be conclusive and
binding for all purposes, absent manifest error. The Borrower
shall pay each Lender directly the amount shown as due on any
such certificate within 30 days after its receipt of the same.
If any Taxes or Other Taxes for which a Lender or the
Administrative Agent has received payments from the Borrower
hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as
the case may be, shall promptly forward to the Borrower any such
refunded amount. The Borrower's, the Administrative Agent's and
each Lender's obligations under this Section 4.05 shall survive
the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 10.02, the original or a certified
copy of a receipt evidencing payment thereof.
(e) Each Lender shall, on or prior to the date it becomes a
Lender hereunder, deliver to the Borrower and the Administrative
Agent such certificates, documents or other evidence, as required
by the Internal Revenue Code of 1986, as amended from time to
time (the "Code"), or treasury regulations issued pursuant
thereto, including Internal Revenue Service Form W-8 BEN or W-8
ECI and any other certificate or statement of exemption required
by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by such Lender establishing that it
is (i) not subject to withholding under the Code or (ii) totally
exempt from United States of America tax under a provision of an
applicable tax treaty. Each Lender shall promptly notify the
Borrower and the Administrative Agent of any change in its
Applicable Lending Office and shall deliver to the Borrower and
the Administrative Agent together with such notice such
certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith
efforts to apprise the Borrower as promptly as practicable of any
impending change in its tax status that would give rise to an
obligation by the Borrower to pay any additional amounts pursuant
to this Section 4.05. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments hereunder or under the Notes are not
subject to United States of America withholding tax or are
subject to such tax at a rate reduced by an applicable tax
treaty, the Borrower or the Administrative Agent shall withhold
taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender organized under the laws of
a jurisdiction outside the United States of America. Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrower pursuant to this
Section 4.05, and not superseded by another form supplied by it,
is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 4.05 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Borrower or to change
the jurisdiction of its Applicable Lending Office if the making
of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Closing Date.
The commitments of the Lenders to make Advances under and in
accordance with this Agreement shall not become effective until
the following conditions precedent shall have been fulfilled:
(a) The Administrative Agent shall have received the
following, each dated the date of delivery thereof (unless
otherwise specified below), in form and substance satisfactory to
each Lender and (except for the Notes) in sufficient copies for
each Lender:
(i) Counterparts of this Agreement, duly executed by
each party hereto.
(ii) The Notes to the order of the respective Lenders,
duly executed by the Borrower.
(iii) True and complete photocopies of the
Significant Contracts in effect on the Closing Date and all
amendments, modifications and supplements thereto, in each
case duly executed by the respective parties thereto.
(iv) A certificate of an Assistant Secretary of the
Borrower certifying (A) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement
and the Notes and the other documents to be delivered
hereunder and thereunder and (B) that attached thereto are
true and correct copies of the Articles of Incorporation of
the Borrower, and all amendments thereto, and the By-laws of
the Borrower, in each case as in effect on such date and
(C) that attached thereto are true and correct copies of the
resolutions of the Board of Directors of the Borrower
approving this Agreement and the Notes and the other
documents to be delivered by the Borrower hereunder and
thereunder, and of all documents evidencing other necessary
corporate action, if any, with respect to the execution,
delivery and performance by the Borrower of this Agreement
and the Notes.
(v) A certificate of a duly authorized officer of the
Borrower certifying that, except as set forth in the
Disclosure Documents, there is no pending or known
threatened action or proceeding (including, without
limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the
Borrower or its properties before any court, governmental
agency or arbitrator, which may: (A) purport to affect the
legality, validity or enforceability of the Existing Debt,
any Loan Document or any Significant Contract or
(B) materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a
whole.
(vi) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and warranties
contained in Section 6.01 are correct, in all material
respects, on and as of the Closing Date before and after
giving effect to the initial Advances and the application of
the proceeds thereof, as though made on and as of such date
and (ii) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default, or
would result from such initial Advances or the application
of the proceeds thereof.
(vii) A certificate signed by the Treasurer or
Assistant Treasurer of the Borrower, certifying as to the
absence of any material adverse change in the financial
condition, operations, properties or prospects of the
Borrower since June 30, 2001, except as disclosed in the
Disclosure Documents.
(viii) Copies, certified by the Borrower, of all
Governmental Approvals listed in Schedule II hereof.
(ix) Favorable opinions of:
(A) ▇.▇. ▇▇▇▇▇▇▇, Esq., Senior Counsel of NUSCO,
in substantially the form of Exhibit 5.01A hereto;
(B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Assistant General
Counsel of NUSCO, in substantially the form of
Exhibit 5.01B hereto; and
(C) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel
of PSNH, in substantially the form of Exhibit 5.01C
hereto;
(x) A certificate of PSNH, signed by a duly authorized
officer of PSNH, certifying as to the absence of any
material adverse change in the financial condition,
operations, properties or prospects of PSNH since June 30,
2001, except as disclosed in the disclosure documents
referred to in such certificate.
(xi) Such other approvals, opinions and documents as
any Lender, through the Administrative Agent, may reasonably
request as to the legality, validity, binding effect or
enforceability of this Agreement and the Notes.
(b) There shall exist no injunction or temporary
restraining order which, in the judgment of the Administrative
Agent or the Arranger would prohibit the making of the Advances
or the repayment of the Existing Debt; except as set forth in the
Disclosure Documents, there shall be no pending or known
threatened action or proceeding (including, without limitation,
any action or proceeding relating to any environmental protection
laws or regulations) affecting the Borrower or its properties
before any court, governmental agency or arbitrator, which may:
(i) purport to affect the legality, validity or enforceability of
the Existing Debt, any Loan Document or any Significant Contract
or (ii) materially adversely affect the financial condition,
properties, prospects or operations of the Borrower as a whole.
(c) All other legal and regulatory matters relating to this
Agreement, the Notes, the Advances and the repayment of the
Existing Debt shall be satisfactory to the Arranger and the
Lenders.
(d) No Unmatured Default or Event of Default shall have
occurred and be continuing.
(e) The Borrower shall have paid all fees under or
referenced in Section 2.02 hereof, to the extent then due and
payable.
(f) The Closing Date shall have occurred on or prior to
November 9, 2001.
SECTION 5.02. Reliance on Certificates.
The Lenders and the Administrative Agent shall be entitled
to rely conclusively upon the certificates delivered from time to
time by officers of the Borrower and the other parties to the
Significant Contracts as to the names, incumbency, authority and
signatures of the respective persons named therein until such
time as the Administrative Agent may receive a replacement
certificate, in form acceptable to the Administrative Agent, from
an officer of such Person identified to the Administrative Agent
as having authority to deliver such certificate, setting forth
the names and true signatures of the officers and other
representatives of such Person thereafter authorized to act on
behalf of such Person.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the
Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized and
validly existing under the laws of the State of New Hampshire.
The Borrower is duly qualified to do business in, and is in good
standing in, all other jurisdictions where the nature of its
business or the nature of property owned or used by it makes such
qualifications necessary.
(b) The execution, delivery and performance by the Borrower
of each Loan Document are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and
do not and will not contravene (i) the Borrower's charter or
by-laws or (ii) any law or legal or contractual restriction
binding on or affecting the Borrower; and such execution,
delivery and performance do not or will not result in or require
the creation of any Lien upon or with respect to any of its
properties. Each Significant Contract was duly authorized,
executed and delivered by the Borrower and is in full force and
effect.
(c) No Governmental Approval is required for the execution,
delivery or performance by the Borrower of the Loan Documents,
except for those Governmental Approvals set forth on Schedule II,
each of which has been duly obtained or made and is in full force
and effect and in respect of which all applicable periods of time
for review, rehearing or appeal have expired. No Governmental
Approval is required (i) for the performance by the Borrower of
the Significant Contracts or (ii) in connection with the nature
of the Borrower's business, except in each case for such as have
been duly obtained or made and are in full force and effect and
in respect of which all applicable periods of time for review,
rehearing or appeal have expired, or, in the case of Governmental
Approvals referred to in clause (ii), such as can reasonably be
expected to be obtained in the ordinary course of the Borrower's
business without undue burden or expense.
(d) This Agreement, the Notes and each Significant Contract
are legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their
respective terms; subject to the qualification, however, that the
enforcement of the rights and remedies herein and therein is
subject to bankruptcy and other similar laws of general
application affecting rights and remedies of creditors and that
the remedy of specific performance or of injunctive relief is
subject to the discretion of the court before which any
proceedings therefor may be brought.
(e) The audited balance sheet of the Borrower as of
December 31, 2000, and the related statements of the Borrower
setting forth the results of operations and cash flows of the
Borrower for the fiscal year then ended, and the unaudited
balance sheet of the Borrower as of June 30, 2001, and the
related statements of the Borrower setting forth the results of
operations and cash flows of the Borrower for the fiscal quarter
then ended, copies of which have been furnished to each Bank,
fairly present in all material respects the financial condition,
results of operations and cash flows of the Borrower at and for
the periods ended on such dates, and have been prepared in
accordance with generally accepted accounting principles
consistently applied. Except as reflected in such financial
statements and in the Disclosure Documents, the Borrower has no
material non-contingent liabilities, and all contingent
liabilities have been appropriately reserved. The financial
projections provided previously to the Arranger and the Lenders
were prepared in good faith and on the basis of reasonable
assumptions, and, as of the date of this Agreement, nothing has
come to the attention of the Borrower's senior management to
indicate that such assumptions are no longer reasonable. Since
June 30, 2001, there has been no material adverse change in the
Borrower's financial condition, operations, properties or
prospects, except as disclosed in the Disclosure Documents.
(f) Except as set forth in the Disclosure Documents, there
is no pending or known threatened action or proceeding
(including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations) affecting
the Borrower or its properties before any court, governmental
agency or arbitrator, which may: (i) purport to affect the
legality, validity or enforceability of the Existing Debt, any
Loan Document or any Significant Contract or (ii) materially
adversely affect the financial condition, properties, prospects
or operations of the Borrower as a whole.
(g) The Borrower has title to its assets sufficient for the
operation of its business, subject only to Permitted Liens. All
insurance required by Section 7.01(c) hereof is in full force and
effect.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which
would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower, except as
disclosed to and consented by the Majority Lenders in writing.
Since the date of the most recent Schedule B (Actuarial
Information) to the Annual Report of the Borrower (Form 5500
Series), if any, there has been no material adverse change in the
funding status of the ERISA Plans referred to therein and no
"prohibited transaction" (other than such as may be exempted
under Section 408 of ERISA and applicable regulations thereunder)
has occurred with respect thereto, except as described in the
Disclosure Documents. Neither the Borrower nor any of its ERISA
Affiliates has incurred nor reasonably expects to incur any
material withdrawal liability under ERISA to any ERISA
Multiemployer Plan, except as disclosed to and consented by the
Majority Lenders in writing.
(i) The Borrower has filed all tax returns (federal, state
and local) required to be filed and paid taxes shown thereon to
be due, including interest and penalties, or, to the extent the
Borrower is contesting in good faith an assertion of liability
based on such returns, has provided adequate reserves in
accordance with generally accepted accounting principles for
payment thereof.
(j) No exhibit, schedule, report or other written
information provided by the Borrower or its agents to the
Arranger or the Lenders in connection with the negotiation,
execution and closing of this Agreement knowingly contained when
made any material misstatement of fact or knowingly omitted to
state any material fact necessary to make the statements
contained therein not misleading in light of the circumstances
under which they were made.
(k) No event has occurred and is continuing which
constitutes a material default under any Significant Contract.
(l) All proceeds of the Advances will be applied to the
repayment of the Existing Debt.
(m) No proceeds of any Advance will be used (A) to acquire
any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934 or (B) to buy
or carry any margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System)
or to extend credit to others for such purpose. The Borrower
(i) is not an "investment company" within the meaning ascribed to
that term in the Investment Company Act of 1940 and (ii) is not
engaged in the business of extending credit for the purpose of
buying or carrying margin stock.
(n) The Borrower is in compliance in all material respects
with the requirements of all applicable laws, rules, regulations
and orders of any governmental authority, including without
limitation any such laws, rules, regulations and orders relating
to utilities, zoning, environmental protection, use and disposal
of Hazardous Substances, land use, construction and building
restrictions, and employee safety and health matters relating to
business operations and without limiting the foregoing all
"financial protection" and other requirements of the ▇▇▇▇▇-
▇▇▇▇▇▇▇▇ Act, as amended from time to time and all other laws
relating to nuclear plant owners and operators, except to the
extent (i) that the Borrower is contesting the same in good faith
by appropriate proceedings or (ii) that any such non-compliance,
and the enforcement or correction thereof, would not materially
adversely affect the financial condition, properties, prospects
or operations of the Borrower as a whole or (iii) disclosed in
the Disclosure Documents.
(o) No Unmatured Default or Event of Default has occurred
and is continuing.
ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01. Affirmative Covenants.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 6.01(l) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, all taxes, assessments and
governmental charges, royalties or levies imposed upon it or upon
its property except to the extent the Borrower is contesting the
same in good faith by appropriate proceedings and has set aside
adequate reserves for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-
insurance) covering the Borrower and its properties in effect at
all times in such amounts and covering such risks as may be
required by law and in addition as is usually carried by
companies engaged in similar businesses and owning similar
properties. Such insurance shall in any event include all
"financial protection" required by the ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Act, as
amended from time to time.
(d) Preservation of Existence, Etc. Preserve and maintain
its corporate existence, material rights (statutory and
otherwise) and franchises.
(e) Compliance with Laws, Etc.. Comply in all material
respects with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, including
without limitation any such laws, rules, regulations and orders
relating to utilities, zoning, environmental protection, use and
disposal of Hazardous Substances, land use, construction and
building restrictions, and employee safety and health matters
relating to business operations and without limiting the
foregoing all "financial protection" and other requirements of
the ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Act, as amended from time to time and all
other laws relating to nuclear plant owners and operators, except
to the extent (i) that the Borrower is contesting the same in
good faith by appropriate proceedings or (ii) that any such non-
compliance, and the enforcement or correction thereof, would not
materially adversely affect the financial condition, properties,
prospects or operations of the Borrower as a whole.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice and subject to reasonable coordination
measures agreed upon by the Administrative Agent and the
Borrower, permit the Lenders and their respective agents and
representatives to examine and make copies of and abstracts from
the records and books of account of, and the properties of, the
Borrower and to discuss the affairs, finances and accounts of the
Borrower with the Borrower and with its officers, directors and
accountants.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all
financial transactions of the Borrower and the assets and
business of the Borrower, in accordance with good accounting
practices consistently applied.
(h) Performance of Related Agreements. Perform and observe
all material terms and provisions of each Significant Contract
and take all reasonable steps to enforce each Significant
Contract substantially in accordance with its terms and to
preserve the rights of the Borrower thereunder; provided, that
the foregoing provisions of this Section 7.01(h) shall not
preclude the Borrower from any waiver, amendment, modification,
consent or termination permitted under Section 7.02(h) hereof.
(i) Collection of Accounts Receivable. Promptly ▇▇▇▇, and
diligently pursue collection of, in accordance with customary
utility practices, all accounts receivable owing to the Borrower
and all other amounts that may from time to time be owing to the
Borrower for services rendered or goods sold.
(j) Maintenance of Financial Covenants.
(i) Common Equity Ratio. Maintain at all times a
Common Equity Ratio of not less than 0.25:1.00.
(ii) Interest Coverage Ratio. Maintain at all times an
Interest Coverage Ratio of not less than the 1.50:1.00.
(k) Maintenance of Properties, Etc. Maintain, develop, and
operate in substantial conformity with all laws, material
contractual obligations and prudent practices prevailing in the
industry, all of its properties which are used or useful in the
conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent such non-
conformity would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower as
a whole.
(l) Governmental Approvals. Duly obtain on or prior to such
date as the same may become legally required, and thereafter
maintain in effect at all times, all Governmental Approvals
required (i) for the execution, delivery and performance by the
Borrower of the Loan Documents, (ii) for the performance by the
Borrower of the Significant Contracts and (iii) in connection
with the nature of the Borrower's business, except, in the case
of clause (iii) only, those the absence of which would not
materially adversely affect the financial condition, properties,
prospects or operations of the Borrower as a whole.
SECTION 7.02. Negative Covenants.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will not, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist
any lien, security interest, or other charge or encumbrance
(including the lien or retained security title of a conditional
vendor) of any kind, or any other type of preferential
arrangement the intent or effect of which is to assure a creditor
against loss or to prefer one creditor over another creditor
(other than any preferential arrangement under the Joint
Ownership Agreement with respect to any party thereto) upon or
with respect to any of its properties of any character (any of
the foregoing being referred to herein as a "Lien") whether now
owned or hereafter acquired, or sign or file under the Uniform
Commercial Code of any jurisdiction a financing statement which
names the Borrower as debtor, sign any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign accounts, excluding, however, from the
operation of the foregoing restrictions the following, whether
now existing or hereafter created or perfected ("Permitted
Liens"):
(i) Liens for taxes, assessments or governmental
charges or levies thereon if the same shall not at the time
be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance
with generally accepted accounting principles shall have
been set aside on the Borrower's books.
(ii) Liens imposed by law (other than ERISA), such as
carriers; warehousemen's and mechanics' liens and other
similar liens arising in the ordinary course of business
which secure payment of obligations not more than 60 days
past due.
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance,
old age pensions, or other social security or retirement
benefits, or similar legislation (other than ERISA).
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are
of a nature generally existing with respect to properties of
a similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower.
(v) Liens in existence on the Closing Date none of
which materially adversely affects or will affect the
ongoing conduct of the Borrower's business and none of which
extends to the Unit Contract.
(vi) attachment, judgment and other similar Liens
arising in connection with court proceedings, provided, the
execution or other enforcement thereof is effectively
stayed, the claims secured thereby are being contested at
the time in good faith and no Event of Default shall have
occurred and be continuing;
(vii) any rights of the Nuclear Regulatory
Commission with respect to Seabrook; and
(viii) Liens against the interest of some other
Person (other than the Borrower) with respect to obligations
which have not been assumed or guaranteed by the Borrower
and on which the Borrower does not customarily pay interest
charges, existing on Seabrook or other property which the
Borrower jointly holds with such other Person (or such
Person and others) or upon property in which the Borrower is
a tenant in common with such other Person (or such Person
and others).
(b) Debt. Create, incur, assume or suffer to exist any
Debt, except for:
(i) Debt arising under the Loan Documents;
(ii) Debt in respect of interest rate swaps, caps and
similar arrangements entered into for purposes of hedging
interest rate risk arising under the Loan Documents;
(iii) Debt consisting of maintenance and similar
obligations arising under the Joint Ownership Agreement; and
(iv) Debt in the form of unsecured borrowings not to
exceed $60,000,000 at any time outstanding;
and then only to the extent that the creation, incurrence,
assumption or existence of such Debt would not result in a
violation of Section 7.01(j).
(c) [Reserved]
(d) Mergers, Etc. Merge with or into or consolidate with
or into, or acquire all or substantially all of the assets of,
any Person.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of all or any part of its assets other than (i)
subject to compliance with Section 4.02(c), the sale of the
Seabrook Interest pursuant to the Final Settlement, and (ii)
dispositions of assets no longer required in the ordinary course
of the Borrower's business. Without limitation of the foregoing,
the Borrower shall not (x) sell, lease, transfer or otherwise
dispose of any of its receivables to any unaffiliated third
party, except for collection in the ordinary course of the
Borrower's business of delinquent accounts, or (y) enter into any
sale-leaseback transaction.
(f) Investments in Other Persons. Make any loan or advance
to any Person or purchase or otherwise acquire any capital stock,
obligations or other securities of, make any capital contribution
to, or otherwise invest in, any Person other than Permitted
Investments and loans, advances, purchases and investments listed
on Schedule III hereto.
(g) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate to terminate, any ERISA Plan so as to result in
any material (in the opinion of the Majority Lenders) liability
of the Borrower to the PBGC, or (ii) permit to exist any
occurrence of any Reportable Event (as defined in Title IV of
ERISA), other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under applicable
regulations, or any other event or condition, which presents a
material (in the opinion of the Majority Lenders) risk of such a
termination by the PBGC of any ERISA Plan and such a material
liability to the Borrower.
(h) Significant Contracts.
(i) Amendments. Amend, modify or supplement or give
any consent, acceptance or approval to any amendment,
modification or supplement or deviation by any party from
the terms of any Significant Contract, except any amendment,
modification or supplement to any Significant Contract that
would not reduce the rights or entitlements of the Borrower
thereunder in any material way and except, in the case of
the Tax Allocation Agreement, for such amendments and
modifications as may be required by applicable law.
(ii) Termination. Cancel or terminate (or consent to
any cancellation or termination of) any Significant Contract
prior to the expiration of its stated term.
(i) Change in Nature of Business. Engage in any material
business activity other than the generation and sale of
electricity.
(j) Ownership in Seabrook and Nuclear Plants.
(i) acquire, directly or indirectly, any additional
ownership interest in Seabrook, or any ownership interest or
any additional ownership interest of any kind in any other
nuclear-powered electric generating plant.
(ii) amend, modify or supplement, or give any consent,
acceptance or approval to any amendment, modification or
supplementation to, the Joint Ownership Agreement which
would cause (a) the Borrower to acquire any additional
ownership interest in Seabrook or (b) increase the
obligations of the Borrower thereunder without increasing
ratably the obligations of the other parties thereto.
(k) Subsidiaries. Create or suffer to exist any
subsidiaries.
SECTION 7.03. Reporting Obligations.
So long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will, unless the
Majority Lenders shall otherwise consent in writing, furnish to
the Administrative Agent in sufficient copies for each Lender,
the following:
(i) as soon as possible and in any event within five
(5) days after the occurrence of each Event of Default or
Unmatured Default continuing on the date of such statement,
a statement of the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Borrower setting forth details of
such Event of Default or Unmatured Default and the action
which the Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within fifty
(50) days after the end of each of the first three quarters
of each fiscal year of the Borrower, (A) if and so long as
the Borrower is required to submit to the Securities and
Exchange Commission a report on Form 10-Q, a copy of the
Borrower's report on Form 10-Q submitted to the Securities
and Exchange Commission with respect to such quarter and
(B) if the Borrower ceases to be required to submit such
report, a balance sheet of the Borrower as of the end of
such quarter and statements of income and retained earnings
and of cash flows of the Borrower for the period commencing
at the end of the previous fiscal year and ending with the
end of such quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the
Chief Financial Officer, Treasurer or Assistant Treasurer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles, in each such case,
delivered together with a certificate of said officer
(X) stating that no Event of Default or Unmatured Default
has occurred and is continuing or, if an Event of Default or
Unmatured Default has occurred and is continuing, a
statement as to the nature thereof and the action which the
Borrower proposes to take with respect thereto and (Y)
demonstrating compliance with Section 7.01(j) for and as of
the end of such fiscal quarter and compliance with Section
7.02(b) as of the dates on which any Debt was created,
issued, incurred or assumed (using the Borrower's most
recent annual actuarial determinations in the computation of
Debt referred to in clause (ix) in the definition of "Debt")
during such quarter and as of the end of such fiscal
quarter, such demonstration to be in a schedule (in form
satisfactory to the Majority Lenders) which sets forth the
computations used by the Borrower in determining such
compliance;
(iii) as soon as available and in any event within
105 days after the end of each fiscal year of the Borrower,
(A) if and so long as the Borrower is required to submit to
the Securities and Exchange Commission a report on Form 10-
K, a copy of the Borrower's report on Form 10-K submitted to
the Securities and Exchange Commission with respect to such
year and (B) in any case, a copy of the annual report for
such year for the Borrower including therein an audited
balance sheet of the Borrower as of the end of such fiscal
year and audited statements of income and retained earnings
and of cash flows of the Borrower for such fiscal year, in
each case certified by a nationally-recognized independent
public accountant and delivered with a certificate of the
Chief Financial Officer, Treasurer or Assistant Treasurer
(X) stating that no Event of Default or Unmatured Default
has occurred and is continuing, or if an Event of Default or
Unmatured Default has occurred and is continuing, a
statement as to the nature thereof and the action which the
Borrower proposes to take with respect thereto and
(Y) demonstrating compliance with Section 7.01(j) for and as
of the end of such fiscal year and compliance with Section
7.02(b) as of the dates on which any Debt was created,
issued, incurred or assumed (using the Borrower's most
recent annual actuarial determinations in the computation of
Debt referred to in clause (viii) of the definition of
"Debt") during the last fiscal quarter of such fiscal year
and as of the end of such fiscal year, such demonstration to
be in a schedule (in form satisfactory to the Majority
Lenders) which sets forth the computations used by the
Borrower in determining such compliance;
(iv) as soon as available and in any event within 60
days prior to March 31 of each fiscal year, a copy of an
operating budget/forecast of operations of the Borrower as
approved by the Board of Directors of the Borrower in form
satisfactory to the Lenders for the next fiscal year of the
Borrower, together with a certificate of the Chief Financial
Officer, Treasurer or Assistant Treasurer of the Borrower
stating that such budget/forecast was prepared in good faith
and on reasonable assumptions;
(v) as soon as possible and in any event (A) within 30
days after the Borrower knows or has reason to know that any
ERISA Plan Termination Event described in clause (i) of the
definition of ERISA Plan Termination Event with respect to
any ERISA Plan or ERISA Multiemployer Plan has occurred and
(B) within 10 days after the Borrower knows or has reason to
know that any other ERISA Plan Termination Event with
respect to any ERISA Plan or ERISA Multiemployer Plan has
occurred, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower describing
such ERISA Plan Termination Event and the action, if any,
which the Borrower proposes to take with respect thereto;
(vi) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from the PBGC, copies of each
notice received by the Borrower or any such ERISA Affiliate
of the PBGC's intention to terminate any ERISA Plan or ERISA
Multiemployer Plan or to have a trustee appointed to
administer any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the
Annual Report of the Borrower (Form 5500 Series) with
respect to each ERISA Plan (if any) to which the Borrower is
a contributing employer;
(viii) promptly after receipt thereof by the
Borrower or any of its ERISA Affiliates from an ERISA
Multiemployer Plan sponsor, a copy of each notice received
by the Borrower or any of its ERISA Affiliates concerning
the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $10,000,000 pursuant
to Section 4202 of ERISA in respect of which the Borrower
may be liable;
(ix) promptly after the Borrower becomes aware of the
occurrence thereof, notice of all actions, suits,
proceedings or other events (A) of the type described in
Section 6.01(f), or (B) which purport to affect the
legality, validity or enforceability of any of the Loan
Documents or Significant Contracts;
(x) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements,
and reports which the Borrower sends to its public security
holders (if any) or files with, and copies of all regular,
periodic and special reports and all registration
statements, if any, which the Borrower files with, the
Securities and Exchange Commission or any governmental
authority which may be substituted therefor, or with any
national securities exchange;
(xi) promptly after the sending or filing thereof,
copies of all such proxy statements, financial statements,
and reports which PSNH sends to its public security holders
(if any) or files with, and copies of all regular, periodic
and special reports and all registration statements, if any,
which PSNH files with, the Securities and Exchange
Commission or any governmental authority which may be
substituted therefor, or with any national securities
exchange;
(xii) promptly after receipt thereof, any assertion
of the character described in Section 8.01(i) hereof and the
action the Borrower proposes to take with respect thereto;
(xiii) promptly after knowledge of any material
default under any Significant Contract, notice of such
default and the action the Borrower proposes to take with
respect thereto;
(xiv) promptly after knowledge of any amendment,
modification or other change to any Significant Contract or
to any Governmental Approval affecting any Significant
Contract, notice of such amendment, modification or other
change; and
(xv) promptly after requested, such other information
respecting the financial condition, operations, properties,
prospects or otherwise, of the Borrower or PSNH as the
Administrative Agent or Majority Lenders may from time to
time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default.
The following events shall each constitute an "Event of
Default" if the same shall occur and be continuing after the
grace period and notice requirement (if any) applicable thereto:
(a) The Borrower shall fail to pay any principal of any
Note when due or shall fail to pay any interest on any Note or
any other amount due hereunder within two days after the same
becomes due;
(b) Any representation or warranty made by the Borrower (or
any of its officers or agents) in this Agreement, any other Loan
Document, certificate or other writing delivered pursuant hereto
or thereto shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any term
or covenant on its part to be performed or observed contained in
Sections 7.01(a), (d) or (j), Section 7.02 or
Section 7.03(i) hereof; or
(d) The Borrower shall fail to perform or observe any other
term or covenant on its part to be performed or observed
contained in this Agreement or any Loan Document and any such
failure shall remain unremedied, after written notice thereof
shall have been given to the Borrower by the Administrative Agent
or any Lender, for a period of 30 days; or
(e) The Borrower shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt
evidenced by the Notes and excluding other Debt aggregating in no
event more than $10,000,000 in principal amount at any one time)
whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise, and such failure shall continue after the
applicable grace period, if any, specified in any agreement or
instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other
event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to permit
the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment
or as a result of the Borrower's exercise of a prepayment option)
prior to the stated maturity thereof; unless in each such case
the obligee under or holder of such Debt or the trustee with
respect to such Debt shall have waived in writing such
circumstance without consideration having been paid by the
Borrower so that such circumstance is no longer continuing; or
(f) PSNH shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt
aggregating less than $10,000,000 in principal amount at any one
time) whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise, and such failure shall
continue after the applicable grace period, if any, specified in
any agreement or instrument relating to such Debt; or any other
default under any agreement or instrument relating to any such
Debt, or any other event, shall occur and shall continue after
the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment or as a result of PSNH's exercise
of a prepayment option) prior to the stated maturity thereof;
unless in each such case the obligee under or holder of such Debt
or the trustee with respect to such Debt shall have waived in
writing such circumstance without consideration having been paid
by PSNH so that such circumstance is no longer continuing; or
(g) The Borrower or PSNH shall generally not pay its debts
as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make an assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or PSNH seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of
its debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of a proceeding instituted against the
Borrower or PSNH, as the case may be, the Borrower or PSNH, as
the case may be, shall consent thereto or such proceeding shall
remain undismissed or unstayed for a period of 90 days or any of
the actions sought in such proceeding (including without
limitation the entry of an order for relief against the Borrower
or PSNH, as the case may be, or the appointment of a receiver,
trustee, custodian or other similar official for the Borrower or
PSNH, as the case may be, or any of their respective properties)
shall occur; or the Borrower or PSNH shall take any corporate or
other action to authorize any of the actions set forth above in
this subsection (g); or
(h) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Borrower or
its properties, or any judgment or order for the payment of money
in excess of $10,000,000 shall be rendered against PSNH or its
properties, and, in either case, either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order and shall not have been stayed or (ii) there
shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) Any material provision of any Loan Document or any
Significant Contract shall for any reason other than the express
terms thereof or the exercise of any right or option expressly
contained therein cease to be valid and binding on any party
thereto except as otherwise expressly permitted by the exception
contained in Section 7.02(h)(i) hereof; or any party thereto
other than the Lenders shall so assert in writing, provided that
in the case of any party other than the Borrower making such
assertion in respect of any Significant Contract, such assertion
shall not in and of itself constitute an Event of Default
hereunder until (i) such asserting party shall cease to perform
under and in compliance with such Significant Contract, (ii) the
Borrower shall fail to diligently prosecute, by appropriate
action or proceedings, a rescission of such assertion or a
binding determination as to the merits thereof or (iii) such a
binding determination shall have been made in favor of such
asserting party's position; or
(j) The Borrower shall not have in full force and effect
any or all insurance required under Section 7.01(c) hereof or
there shall be incurred any uninsured damage, loss or destruction
of or to the Borrower's properties in an amount not covered by
insurance (including fully-funded self-insurance programs) which
the Majority Lenders consider to be material; or
(k) A default by the Borrower shall have occurred under the
Unit Contract and shall not have been effectively cured within
the time period specified therein for such cure (or, if no such
time period is specified therein, 10 days); or a default by any
party shall have occurred under any Significant Contract such
default shall not have been effectively cured within 30 days
after notice from the Administrative Agent to the Borrower
stating that, in the opinion of the Majority Lenders, such
default may have a material adverse effect upon the financial
condition, operations, properties or prospects of the Borrower as
a whole; or
(l) Any Governmental Approval (whether federal, state or
local) required to give effect to the Unit Contract (including,
without limitation, the Final Settlement) shall be amended,
modified or supplemented, or any other regulatory or legislative
action or change (whether federal, state or local) having the
effect, directly or indirectly, of modifying the benefits or
entitlements of the Borrower under the Unit Contract shall occur,
and in any such case such amendment, modification, supplement,
action or change may have, in the opinion of the Majority
Lenders, a material adverse effect upon the financial condition,
operations, properties or prospects of the Borrower as a whole;
or
(m) NU shall cease to own all of the outstanding common
stock of the Borrower and PSNH, in each case free and clear of
any Liens.
SECTION 8.02. Remedies Upon Events of Default.
Upon the occurrence and during the continuance of any Event
of Default, then, and in any such event, the Administrative Agent
shall at the request, or may with the consent, of the Majority
Lenders, upon notice to the Borrower (i) declare the Commitments
and the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and
(ii) declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the Commitments and the obligation of each
Lender to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. Authorization and Action.
Each Lender hereby (i) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto and (ii) agrees
that the Arranger, in its capacity as such, shall have no duties
or obligations hereunder. As to any matters not expressly
provided for by any Loan Document (including, without limitation,
enforcement or collection thereof), the Administrative Agent
shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; provided,
however, that the Administrative Agent shall not be required to
take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or
applicable law. The Administrative Agent agrees to deliver
promptly to each Lender notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with any Loan Document, except for its or their own gross
negligence or wilful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts a Lender Assignment
entered into by the Lender which is the payee of such Note, as
assignor, and an assignee, as provided in Section 10.07; (ii) may
consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be (nor shall the
Arranger be) responsible to any Lender for any statements,
warranties or representations made in or in connection with any
Loan Document; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of the
Borrower to be performed or observed, or to inspect any property
(including the books and records) of the Borrower; (v) shall not
be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
any Loan Document, Significant Contract or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 9.03. Bank One and Affiliates.
With respect to its Commitment and the Note issued to it,
Bank One shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include
Bank One in its individual capacity. Bank One and its Affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
the Borrower, any of its subsidiaries and any Person who may do
business with or own securities of the Borrower or any such
subsidiary, all as if Bank One were not the Administrative Agent,
and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Arranger or
any Lender and based on the financial information referred to in
Section 6.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 9.05. Indemnification.
The Lenders agree to indemnify the Arranger and the
Administrative Agent, in their respective capacities as such and
to the extent not reimbursed by the Borrower, ratably according
to the respective principal amounts of the Notes then held by
each such Lender (or if no Notes are at the time outstanding or
if any Notes are held by Persons which are not Lenders, ratably
according to the respective Commitments of the Lenders), from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Arranger or the
Administrative Agent in their respective capacities as such in
any way relating to or arising out of this Agreement or any
action taken or omitted by the Arranger or the Administrative
Agent in their respective capacities as such under this
Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Arranger's or the Administrative
Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent and the Arranger promptly upon demand for
its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent and the
Arranger in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement to the extent that the Administrative Agent and the
Arranger are entitled to reimbursement for such expenses pursuant
to Section 10.04 but are not reimbursed for such expenses by the
Borrower.
SECTION 9.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, with any
such resignation to become effective only upon the appointment of
a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, which shall be
a Lender or another commercial bank or trust company reasonably
acceptable to the Borrower organized or licensed under the laws
of the United States, or of any State thereof. If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a Lender or shall be another commercial bank or
trust company organized or licensed under the laws of the United
States or of any State thereof reasonably acceptable to the
Borrower. In addition to the foregoing right of the
Administrative Agent to resign, the Majority Lenders may remove
the Administrative Agent at any time, with or without cause,
concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent and the execution and delivery by the
Borrower and the successor Administrative Agent of an agreement
relating to the fees to be paid to the successor Administrative
Agent under Section 2.02(c) hereof in connection with its acting
as Administrative Agent hereunder, such successor Administrative
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of
this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
No amendment or waiver of any provision of this Agreement or
any Note, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive,
modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitments of the Lenders that may be
maintained hereunder or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the
Notes, any Applicable Margin or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder (other than fees payable to the
Administrative Agent pursuant to Section 2.02(c) hereof),
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders
which shall be required for the Lenders or any of them to take
any action hereunder, (f) amend this Agreement or any Note in a
manner intended to prefer one or more Lenders over any other
Lender or (g) amend this Section 10.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agent under this Agreement or any Note.
SECTION 10.02. Notices, Etc.
All notices and other communications provided for hereunder
and under the other Loan Documents shall be in writing (including
telegraphic, telex, telecopy or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, (i) if to
the Borrower, at its address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy no. 603.669.2438),
Attention: Treasurer, with a copy to NUSCO at its address at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy no.
860.665.5457), Attention: Assistant Treasurer; (ii) if to any
Bank, at its Domestic Lending Office specified opposite its name
on Schedule I hereto; (iii) if to any Lender other than a Bank,
at its Domestic Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; and (iv) if to the
Administrative Agent, at its address at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Electric, Gas
and Telecommunications Department; or, as to each party, at such
other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied or cabled,
be effective five days after when deposited in the mails, or when
delivered to the telegraph company, confirmed by telex
answerback, telecopied or delivered to the cable company,
respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III, IV or IX shall
not be effective until received by the Administrative Agent.
SECTION 10.03. No Waiver of Remedies.
No failure on the part of any Lender or the Administrative
Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable
counsel fees and expenses), of (i) the Administrative Agent and
the Arranger in connection with the preparation, negotiation,
execution and delivery of the Loan Documents, the administration
of the Loan Documents, and any proposed modification, amendment,
or consent relating thereto; and (ii) the Administrative Agent,
the Arranger and each Lender in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of
this Agreement or the Notes.
(b) The Borrower hereby agrees to indemnify and hold each
Lender, the Arranger, the Administrative Agent and their
respective officers, directors, employees, professional advisors
and affiliates (each, an "Indemnified Person") harmless from and
against any and all claims, damages, losses, liabilities, costs
or expenses (including reasonable attorney's fees and expenses,
whether or not such Indemnified Person is named as a party to any
proceeding or investigation or is otherwise subjected to judicial
or legal process arising from any such proceeding or
investigation) which any of them may incur or which may be
claimed against any of them by any person or entity (except to
the extent such claims, damages, losses, liabilities, costs or
expenses arise from the gross negligence or willful misconduct of
the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of any of the Loan Documents or any
transaction contemplated thereby, or the use by the Borrower
of the proceeds of any Advance;
(ii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of the Borrower
or any of its Affiliates or (B) by or on behalf of the
Borrower or any of its Affiliates at any time and in any
place; or
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority by
reason of the execution and delivery of any of the Loan
Documents.
(c) The Borrower's obligations under this Section 10.04
shall survive the assignment by any Lender pursuant to
Section 10.07 and shall survive as well the repayment of all
amounts owing to the Lenders, the Arranger and the Administrative
Agent under the Loan Documents and the termination of the
Commitments. If and to the extent that the obligations of the
Borrower under this Section 10.04 are unenforceable for any
reason, the Borrower agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible under
applicable law.
SECTION 10.05. Right of Set-off.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower
after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each
Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
which such Lender may have.
(b) The Borrower agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations
hereunder, and that the obligations of the Lenders hereunder are
several and not joint. Nothing contained herein shall constitute
a relinquishment or waiver of the Borrower's rights to any
independent claim that the Borrower may have against the
Administrative Agent or any Lender, but no Lender shall be liable
for the conduct of the Administrative Agent or any other Lender,
and the Administrative Agent shall not be liable for the conduct
of any Lender.
SECTION 10.06. Binding Effect.
This Agreement shall become effective when it shall have
been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each
Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 10.07. Assignments and Participation.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under the
Loan Documents (including, without limitation, all or a portion
of its Commitment, the Advances owing to it and the Note or Notes
held by it) with the prior written consent of the Borrower to the
extent the assignee thereunder is not then a Lender or an
Affiliate of a Lender (which consent shall not be unreasonably
withheld); provided, however, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations under this Agreement,
(ii) to the extent the assignee thereunder is not then a Lender
or an Affiliate of a Lender, the amount of the Commitment or
Note(s) to be held by such assignee (after giving effect to such
assignment and any other assignments being made concurrently
therewith to the same assignee by one or more other Lenders)
shall in no event be less than $5,000,000, unless such assignment
is of the entire amount of the assigning Lender's Commitment, and
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, a Lender Assignment, together with any
Note or Notes subject to such assignment and a processing and
recordation fee of $2,500. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Lender Assignment, which effective date shall
be at least five Business Days after the execution thereof,
(x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned
to it pursuant to such Lender Assignment, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it to an assignee pursuant to
such Lender Assignment, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of a
Lender Assignment covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto); provided, however,
if an Event of Default shall have occurred and be continuing and
the Administrative Agent shall have declared all Advances to be
immediately due and payable hereunder a Lender may assign all or
a portion of its rights and obligations without the prior written
consent of the Borrower but otherwise in accordance with this
Section.
(b) By executing and delivering a Lender Assignment, the
Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Lender Assignment,
such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any
Loan Document or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has
received a copy of each Loan Document, together with copies of
the financial statements referred to in Section 6.01(e) and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, the Arranger,
such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the Notes; (v) such
assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement
and the Notes are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 10.02 a copy of each Lender Assignment
delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an
assigning Lender and an assignee, together with any Note or Notes
subject to such assignment and any consent required by
Section 10.07(a), the Administrative Agent shall, if such Lender
Assignment has been completed and is in substantially the form of
Exhibit 10.07 hereto, (i) accept such Lender Assignment,
(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at
its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note to
the order of such assignee in an amount equal to the Commitment
assumed by it pursuant to such Lender Assignment and, if the
assigning Lender has retained a Commitment hereunder, a new Note
to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be
dated the effective date of such Lender Assignment and shall
otherwise be in substantially the form of Exhibit 1.01A hereto.
(e) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under the Loan Documents (including, without
limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and (v) unless the Borrower shall have previously
consented to the sale of such participation, the holder of any
such participation, other than an Affiliate of such Lender, shall
not be entitled to require such Lender to take or omit to take
any action hereunder, except action (A) extending the time for
payment of interest on, or the maturity of the principal amount
of, the Notes or (B) reducing the principal amount of or the rate
or amount of interest payable on the Notes.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 10.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree, in accordance with the terms of Section 10.08, to preserve
the confidentiality of any Confidential Information received by
it from such Lender.
(g) If any Lender shall have delivered a notice to the
Administrative Agent described in Section 4.03 (a), (b), (c) or
(f) hereof, or shall become a non-performing Lender under
Section 3.01(c) hereof, and if and so long as such Lender shall
not have withdrawn such notice or corrected such non-performance
in accordance with Section 3.01(c), the Borrower or the
Administrative Agent may demand that such Lender assign in
accordance with Section 10.07 hereof, to one or more assignees
designated by either the Borrower or the Administrative Agent
(and reasonably acceptable to the other), all (but not less than
all) of such Lender's Commitment, Advances, participation and
other rights and obligations hereunder; provided that any such
demand by the Borrower during the continuance of an Event of
Default or an Unmatured Default shall be ineffective without the
consent of the Majority Lenders. If, within 30 days following
any such demand by the Administrative Agent or the Borrower, any
such assignee so designated shall fail to tender such assignment
on terms reasonably satisfactory to the Lender, or the Borrower
and the Administrative Agent shall have failed to designate any
such assignee, then such demand by the Borrower or the
Administrative Agent shall become ineffective, it being
understood for purposes of this provision that such assignment
shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled
to tender such assignment forthwith, if such assignee (1) shall
agree to such assignment in substantially the form of the Lender
Assignment and (2) shall tender payment to such Lender in an
amount equal to the full outstanding dollar amount accrued in
favor of such Lender hereunder (as computed in accordance with
the records of the Administrative Agent.)
(h) Anything in this Section 10.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 10.08. Confidentiality.
In connection with the negotiation and administration of
this Agreement and the other Loan Documents, the Borrower has
furnished and will from time to time furnish to the
Administrative Agent and the Lenders (each, a "Recipient")
written information which is identified to the Recipient when
delivered as confidential (such information, other than any such
information which (i) was publicly available, or otherwise known
to the Recipient, at the time of disclosure, (ii) subsequently
becomes publicly available other than through any act or omission
by the Recipient or (iii) otherwise subsequently becomes known to
the Recipient other than through a Person whom the Recipient
knows to be acting in violation of his or its obligations to the
Borrower, being hereinafter referred to as "Confidential
Information"). The Recipient will not knowingly disclose any
such Confidential Information to any third party (other than to
those persons who have a confidential relationship with the
Recipient), and will take all reasonable steps to restrict access
to such information in a manner designed to maintain the
confidential nature of such information, in each case until such
time as the same ceases to be Confidential Information or as the
Borrower may otherwise instruct. It is understood, however, that
the foregoing will not restrict the Recipient's ability to freely
exchange such Confidential Information with prospective
participants in or assignees of the Recipient's position herein,
but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such prospective
participant's entering into an understanding as to
confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of
any or all Confidential Information if and to the extent that
such disclosure may be required (iv) by a regulatory agency or
otherwise in connection with an examination of the Recipient's
records by appropriate authorities, (v) pursuant to court order,
subpoena or other legal process or (vi) otherwise, as required by
law; in the event of any required disclosure under clause (ii) or
(iii), above, the Recipient agrees to use reasonable efforts to
inform the Borrower as promptly as practicable.
SECTION 10.09. Waiver of Jury Trial.
The Borrower, the Administrative Agent, and the Lenders each
hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to
this Agreement or any other Loan Document, or any other
instrument or document delivered hereunder or thereunder.
SECTION 10.10. Governing Law.
This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
The Borrower, the Lenders and the Administrative Agent each
(i) irrevocably submits to the jurisdiction of any New York State
Court or Federal court sitting in New York City in any action
arising out of any Loan Document, (ii) agrees that all claims in
such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process by
mail. A final judgment in any such action shall be conclusive
and may be enforced in other jurisdictions. Nothing herein shall
affect the right of any party to serve legal process in any
manner permitted by law or affect its right to bring any action
in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of any Loan Document, or actions taken or to be taken by
any party thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of
them. No term or provision of the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION 10.12. Execution in Counterparts.
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
NORTH ATLANTIC ENERGY
CORPORATION
By:
Name
Title:
BANK ONE, N.A. (main office,
Chicago), as Administrative Agent
and as Bank
By:
Name
Title:
BARCLAYS BANK PLC, as Bank
By:
Name
Title:
FLEET NATIONAL BANK, as Bank
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Bank
By:
Name
Title:
SCHEDULE I
NORTH ATLANTIC ENERGY COMPANY
U.S. $90,000,000 TERM CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Eurodollar
Name of Bank Domestic Lending Office Lending Office
Barclays Bank 75 Wall Street Nassau Branch
PLC ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ c/o Barclays Bank
Attn: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Customer Service ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Team I Attn:
Customer Service
Team 1
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy : ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Same as Domestic
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Lending Office
Attn:
Customer Service
Team 1
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Commercial Loan Services Same as Domestic
Bank ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
M/C: MADE 10008A
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Bank One, N.A. 1 Bank One Plaza Same as Domestic
(of Chicago) ▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Union Bank of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic
California, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE II
GOVERNMENTAL APPROVALS
1. Order No. 23,566 of the New Hampshire Public Utilities
Commission, dated October 6, 2000 in Docket DE 00-176.
SCHEDULE III
INVESTMENTS
None.
SCHEDULE IV
COMMITMENTS
Bank Commitment
Bank One, N.A. (of Chicago) $22,500,000
Barclays Bank PLC $22,500,000
Fleet National Bank $22,500,000
Union Bank of $22,500,000
California, N.A.