EXHIBIT C.5.a
FIFTH SUPPLEMENTAL LOAN AGREEMENT
Between
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
and
NEW ENGLAND POWER COMPANY
Dated as of August 1, 1998
Supplementing the Loan Agreement between
Massachusetts Industrial Finance Agency and
New England Power Company
dated as of March 15, 1980,
as Heretofore Amended by
a First Supplemental Loan Agreement
dated as of January 15, 1983,
a Second Supplemental Loan Agreement
dated as of September 15, 1983,
a Third Supplemental Loan Agreement
dated as of October 1, 1992, and
a Fourth Supplemental Loan Agreement
dated as of September 1, 1993
TABLE OF CONTENTS
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Amendments to Original Loan Agreement. . . . . . . . . . . 1
Section 3. Severability . . . . . . . . . . . . . . . . . . . . . . . 3
Section 4. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 3
Section 5. Captions . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Binding Effect . . . . . . . . . . . . . . . . . . . . . . 4
Section 8. Obligations of the Company Under the Indenture . . . . . . 4
FIFTH SUPPLEMENTAL LOAN AGREEMENT
This Fifth Supplemental Loan Agreement dated as of August 1, 1998 (the
"Fifth Supplemental Loan Agreement") is between Massachusetts Industrial
Finance Agency, a body politic and corporate and a public instrumentality of
The Commonwealth of Massachusetts established under Chapter 23A of the General
Laws of Massachusetts (the "Agency"), and New England Power Company, a
corporation organized and existing under the laws of The Commonwealth of
Massachusetts (the "Company"). The Agency is authorized by Massachusetts
General Laws, Chapter 23A, sec. 29-38C and, to the extent made applicable by
sec. 35(a) thereof, Chapter 40D (the "Act") to finance pollution control
facilities through the issue of its industrial revenue bonds. The purpose of
this Fifth Supplemental Loan Agreement is to amend a Loan Agreement between
the Agency and the Company dated as of March 15, 1980 (the "Original Loan
Agreement"), to which this instrument is supplemental.
It is hereby agreed as follows:
Section 1. Definitions. For purposes hereof, the following words shall
have the following meanings:
"Loan Agreement" means the Original Loan Agreement as amended and
supplemented by the First Supplemental Loan Agreement dated as of January 15,
1983, the Second Supplemental Loan Agreement dated as of September 15, 1983,
the Third Supplemental Loan Agreement dated as of October 1, 1992, the Fourth
Supplemental Loan Agreement dated as of September 1, 1993 and this Fifth
Supplemental Loan Agreement.
"Sixth Supplemental Indenture" means the Sixth Supplemental Indenture
between the Agency and State Street Bank and Trust Company, as Trustee, dated
as of August 1, 1998, supplementing and amending the Trust Indenture between
the Agency and said Trustee (as successor to Boston Safe Deposit and Trust
Company) dated as of March 15, 1980 (the "Original Indenture" and, as
supplemented and amended by the First Supplemental Indenture dated as of
January 15, 1983, the Second Supplemental Indenture dated as of September 15,
1983, the Third Supplemental Indenture dated as of October 1, 1992, the Fourth
Supplemental Indenture dated as of September 1, 1993, the Fifth Supplemental
Indenture dated as of July 1, 1994 and the Sixth Supplemental Indenture, the
"Indenture").
Capitalized terms which are not defined herein but which are defined in
the Original Loan Agreement shall have the respective meanings attributed to
them therein.
Section 2. Amendments to Original Loan Agreement. Upon the surrender
to the Company of the General and Refunding Mortgage Bonds held by the Trustee
pursuant to Section 16A of the Original Indenture (as added by the Sixth
Supplemental Indenture), the Loan Agreement shall be amended as follows:
A. Section 6(c) of the Original Loan Agreement shall read as
follows:
(c) Maintenance of Corporate Existence;
Assignment of Rights and Obligations; Qualification in
Massachusetts. It will maintain its corporate existence
and will not dissolve, merge or
consolidate into another corporation, or permit one or more other
corporations to merge into it, unless the successor corporation assumes
in writing the Company's obligations under the Loan Agreement and the
Indenture. The Company may assign its rights and obligations under this
Agreement with respect to all or any series or subseries of the Bonds on
or after the date of a mandatory tender of all of the affected Bonds for
purchase pursuant to Section 2.09 of the Fourth Supplemental Indenture
(including the mandatory tender upon which the General and Refunding
Mortgage Bonds are surrendered by the Trustee), provided that the
assignee or assignees of such rights and obligations is a member or are
members of the same affiliated group within the meaning of Code sec.
1504 and such assignee or assignees assumes or assume in writing all of
the Company's obligations under the Loan Agreement and the Indenture
with respect to the affected Bonds. The Company shall not dispose of
all or substantially all of its assets, unless either (i) the transferee
or transferees of such assets assumes or assume in writing the Company's
obligations under the Loan Agreement and the Indenture or (ii) such
disposition occurs on or after the date of a mandatory tender for
purchase of all of the affected Bonds pursuant to Section 2.09 of the
Fourth Supplemental Indenture. Any such assignment of rights and
obligations under this Agreement or disposition of assets occurring
after the date of mandatory tender referenced in the two preceding
sentences may only occur if the Bondholders purchasing the affected
Bonds on or after such mandatory tender date were informed on or before
the applicable date of purchase, either through a remarketing circular,
official statement or other disclosure document or information, of the
proposed assignment or disposition. Compliance with the preceding
sentence shall be conclusively evidenced by a certificate of the Company
delivered to the Agency and the Trustee no later than the effective date
of the proposed assignment or disposition to the effect that the Company
has complied with the applicable requirements of such preceding
sentences. So long as the Bonds are outstanding, the Company (including
any successor, assignee, or transferee under this Section 6(c)) shall at
all times either be organized under the laws of Massachusetts or
qualified to do business therein and shall at all times be in good
standing in Massachusetts.
B. Section 6 of the Original Loan Agreement is amended by adding at
the end thereof the following new subsection:
(e) Liens. The Company will not incur, issue, assume, create or
suffer to exist any lien on or with respect to any of its properties or
assets, whether now owned or hereafter acquired, or assign any right to
receive income, other than Permitted Liens, as hereinafter defined,
unless such lien is extended to also secure the Company's obligations
with respect to the Bonds on a parity basis. For purposes of this
subsection, "Permitted Liens" shall mean such of the following as to
which no enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced: (a) liens for taxes, assessments
and governmental charges or levies to the extent not required to be paid
or to the extent any such tax, assessment, charge or claim is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.; (b) liens imposed by law, such as
materialmen's , mechanics', carriers', workmen's and repairmen's liens
and other similar liens arising in the ordinary course of business; (c)
pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely effect the use
of such property for its present purposes; (e) liens created by or
resulting from any litigation or other proceeding which is being
contested in good faith by appropriate proceedings; and (f) purchase
money liens upon or in any real property or equipment acquired or held
by the Company in the ordinary course of business to secure the purchase
price of such property or equipment or to secure debt incurred solely
for the purpose of financing the acquisition of such property or
equipment, or liens existing on such property or equipment at the time
of its acquisition (other than any such liens created in contemplation
of such acquisition that were not incurred to finance the acquisition of
such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such lien shall extend to or cover any properties of any character other
than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the lien being extended, renewed
or replaced.
C. The second sentence of Section 10 of the Original Loan Agreement
is amended to read as follows:
This Agreement shall not be assignable, except as
permitted by Section 6(c) hereof, and except that the
Agency shall assign to the Trustee all of the Agency's
rights under this Agreement (except the rights to receive
payments for its own purposes under Sections 6(d) and 9
hereof).
Section 3. Severability. In the event that any provision of this Fifth
Supplemental Loan Agreement shall be held to be invalid in any circumstance,
such invalidity shall not affect any other provisions or circumstances.
Section 4. Counterparts. This Fifth Supplemental Loan Agreement may be
executed and delivered in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts together shall constitute one
and the same instrument.
Section 5. Captions. The captions in this Fifth Supplemental Loan
Agreement are for convenience only and shall not affect the construction
hereof.
Section 6. Governing Law. This instrument shall be governed by the
laws of The Commonwealth of Massachusetts.
Section 7. Binding Effect. This Fifth Supplemental Loan Agreement
shall inure to the benefit of and be binding on the Agency and the Company and
their respective successors and assigns (including, without limitation, the
Trustee as grantee and assignee under the Indenture in accordance with all the
terms thereof and hereof).
Section 8. Obligations of the Company Under the Indenture. The Company
hereby assumes and agrees to perform all of the obligations imposed upon it
under the Indenture and shall be entitled to all rights and benefits granted
to it or on its behalf thereunder.
IN WITNESS WHEREOF, the parties have caused this Fifth Supplemental Loan
Agreement to be duly executed and their respective seals to be hereunto
affixed, all as of the date first above written.
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
[Seal]
By:______________________________
Title:
NEW ENGLAND POWER COMPANY
[Seal]
s/ Xxxx X. Xxxxxxxx
By:______________________________
Treasurer
Attest:
s/ Xxxx X. Xxxxxxxx
_____________________________
Assistant Clerk
