70-09151
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO FORM U-1
APPLICATION/DECLARATION WITH RESPECT TO
PROPOSED AMENDMENT OF A CREDIT
FACILITY FOR NUCLEAR FUEL FINANCING
Under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
THE CONNECTICUT LIGHT AND POWER COMPANY
107 Selden Street
Berlin, Connecticut 06037
WESTERN MASSACHUSETTS ELECTRIC COMPANY
107 Selden Street
Berlin, Connecticut 06037
(Name of companies filing this statement and address of
principal executive offices)
NORTHEAST UTILITIES
(Name of top registered holding company)
Robert P. Wax, Esq.
Vice President, Secretary and General Counsel
Northeast Utilities Service Company
P.O. Box 270
Hartford, Connecticut 06141-0270
(Name and address of agent for service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
David R. McHale Jeffrey C. Miller, Esq.
Assistant Treasurer Northeast Utilities Service Company
Northeast Utilities Service Company P.O. Box 270
P.O. Box 270 Hartford, Connecticut 06141-0270
Hartford, Connecticut 06141-0270
Paula Lacey Herman, Esq.
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
<PAGE>
70-09151
The Application/Declaration in File No. 70-09151 is hereby amended as
follows:
1. The following paragraph is amended in "ITEM 1. DESCRIPTION OF
PROPOSED TRANSACTION":
8. The Facility was scheduled to mature on February 19, 1998. In
light of the Lessees' inability to receive required regulatory
approvals by February 19, 1998, the banks have waived the Event
of Default under the Credit Agreement which would have occurred
on that date if the Trustee did not pay in full the outstanding
balance under the Credit Agreement. Such waiver is effective
through March 5, 1998. The Applicants seek the Commission's
approval for the Trust to pay additional fees and interest under
the Facility so that it can be extended through July 31, 1998.
The amount which the Applicants are presently seeking from the
banks under the Facility will be up to $100,000,000. This is an
amount which is realistic in light of the Applicants' current
financial and operational conditions including outages at the
Millstone Nuclear Plants, but may have to be increased after the
Millstone Units are placed back in operation up to an amount not
exceeding the $230,000,000 presently authorized. It is expected
that a more permanent restructuring of the Facility may occur
after the Millstone Units begin to return to service in 1998. In
the interest of greater financial flexibility, the Applicants
seek the Commission's approval to effect future extensions for
any intervals for up to two years through December 31, 2003 with
the consent of the banks and with terms at least as favorable as
those approved by the Commission herein with respect to interest
rates. The banks have also required as a condition to the
extension of the Facility beyond February 19, 1998 that the
Applicants agree to provide them and the holders of the Trust's
Intermediate Term Notes with collateral (in addition to their
collateral interest in the nuclear fuel being financed at the
Millstone Units) in the form of first mortgage bonds
(the "Bonds") by May 1, 1998. Should this additional collateral
not be provided by May 1, 1998, the Facility will terminate at
that date. The Applicants are not seeking the Commission's
approval to issue the Bonds at this time, but will be submitting
an Application/Declaration and/or request for disclaimer of
jurisdiction with respect thereto in the near future. The
issuance by the Applicants of such Bonds requires the approval of
the DPUC and the DTE, which approval will be sought in the near
future.
2. Clause (ii) of paragraph 9 in "ITEM 1. DESCRIPTION OF PROPOSED
TRANSACTION" is amended as follows to correct a typographical error:
(ii) increase the maximum spread over the Fixed CD Rate from 0.625% to
1.75%"
3. The following paragraph is amended in "ITEM 5. PROCEDURE":
16. The Applicants request that the Commission issue its order in
this matter forthwith and prior to the issuance of the DPUC's and
DTE's orders referred to in Item 4, the effectiveness of such
Commission order to be conditioned, however, upon the issuance of
such other orders and their filing with the Commission as
exhibits in this File pursuant to the requirements of
Rule 24(c)(2). The Applicants represent that neither the DPUC nor
the DTE has been asked to approve or has any jurisdiction over
the acquisition of nuclear fuel by the Trust in the dockets which
are referenced in this File.
4. The following exhibits are added to "ITEM 6. EXHIBITS AND FINANCIAL
STATEMENTS" and are filed herewith:
A.1 Form of Third Amendment and Waiver to Credit Agreement dated
as of February 19, 1998 with exhibits (draft of February 18,
1998). (Revised)
F. Form of opinion of Day, Berry & Howard.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, each of the undersigned companies has duly caused this statement to
be signed on its behalf by the undersigned officer or attorney thereunto
duly authorized.
Date: February 26, 1998
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT AND POWER COMPANY
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By: /s/ Paula Lacey Herman
Paula Lacey Herman
Their Attorney
Exhibit A.1
Draft of 2/18-3/98
THIRD AMENDMENT AND WAIVER
THIRD AMENDMENT AND WAIVER dated as of February 19, 1998 (this "Third
Amendment") to the Credit Agreement dated as of February 11, 1992, as
amended pursuant to a First Amendment dated as of April 30, 1993 and a
Second Amendment dated as of May 12, 1995, among Bankers Trust Company, not
in its individual capacity but solely as trustee of the Niantic Bay Fuel
Trust under the Trust Agreement dated as of January 4, 1982, as amended and
restated by the Amendment to and Restatement of Trust Agreement dated as of
February 11, 1992, between it, State Street Bank and Trust Company of
Connecticut, National Association (which is the successor trustor to the
New Connecticut Bank and Trust Company, National Association, as assignee
of the Federal Deposit Insurance Corporation, as receiver of The
Connecticut Bank and Trust Company, National Association), as Trustor, and
the Connecticut Light and Power Company and Western Massachusetts Electric
Company, as Beneficiaries, each of the financial institutions party
thereto, and The First National Bank of Chicago, as agent for such
financial institutions (as so amended and as it may have been otherwise
supplemented or modified through the date hereof, the "Existing Credit
Agreement").
RECITALS:
A. The Lessees and the Trustee have requested that the Maturity Date
be extended.
B. The Banks are willing to agree to the requested extension provided
that the Trustee and the Lessees agree to certain amendments to the
Existing Credit Agreement.
C. The Trustee and the Lessees are unable to obtain all required
regulatory approvals for such an extension prior to the current Maturity
Date.
D. The Trustee and the Lessees have requested that the Banks
temporarily waive any Event of Default which will otherwise occur on the
current Maturity Date if the Trustee does not pay all of the Bank Notes and
the Banks are willing to grant such a temporary waiver subject to the
conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, all terms
used herein which are defined in the Existing Credit Agreement shall have
the meanings assigned to them therein.
2. WAIVER. Upon the satisfaction on or before February 19, 1998 of
the conditions precedent set forth in Section 5 of this Third Amendment,
each of the Banks hereby waives through March 5, 1998 the Event of Default
under Section 7.2.1 which will otherwise occur on February 19, 1998 if the
Trustee does not pay in full the aggregate principal amount of the Bank
Notes on February 19, 1998. The foregoing waiver expires at 12:00
(midnight) on March 5, 1998 and the continuing effectiveness thereof prior
to such expiration is in all events conditioned upon (i) the Trustee's
continuing agreement (as evidenced by its execution of this Third
Amendment) that so long as the foregoing waiver is in effect it will not
request any Advances under the Existing Credit Agreement, (ii) payment when
due of all interest and fees payable under the Existing Credit Agreement,
and (iii) the non-occurrence of any other Event of Default.
3. AMENDMENTS TO EXISTING CREDIT AGREEMENT. Upon the satisfaction
on or before March 6, 1998 of the conditions precedent set forth in Section
6 of this Third Amendment, the Existing Credit Agreement shall be amended
as follows:
(a) The definition of "Eurodollar Rate" set forth in Article I
of the Existing Credit Agreement shall be amended by deleting the
phrase "1/2% per annum" where it appears therein and inserting the
phrase "1-5/8% per annum" in lieu thereof.
(b) The definition of "Fixed CD Rate" set forth in Article I of
the Existing Credit Agreement shall be amended by deleting the phrase
"5/8% per annum" where it appears therein and inserting the phrase "1-
3/4% per annum" in lieu thereof.
(c) The definition of "Floating Rate" set forth in Article I of
the Existing Credit Agreement shall be amended by deleting clause (b)
thereof and inserting in lieu thereof the following new clause (b):
"(b) the Corporate Base Rate plus 1/2% per annum"
(d) The definition of "Maturity Date" set forth in Article I of
the Existing Credit Agreement shall be amended by deleting it in its
entirety and substituting in lieu thereof the following new
definition:
"'Maturity Date' means July 31, 1998."
(e) Section 2.4.3 of the Existing Credit Agreement shall be
amended by deleting the phrase ".135% per annum" where it appears
therein and inserting the phrase ".50% per annum" in lieu thereof.
(f) Sections 2.5.5 and 2.5.6 of the Existing Credit Agreement
shall be amended by deleting them in their entirety and substituting
in lieu thereof the following new Sections 2.5.5 and 2.5.6:
"2.5.5. MANDATORY REDUCTION OF THE AGGREGATE COMMITMENT.
On each date on which the Trustee makes any payment of principal
on any of the IT Notes or purchases or otherwise acquires any of
the IT Notes, the Aggregate Commitment shall be automatically and
permanently reduced by an amount equal to (i) the Aggregate
Commitment in effect immediately prior to such payment, purchase
or other acquisition, times (ii) a fraction, (A) the numerator of
which equals the excess, if any, of (1) the aggregate principal
amount of the IT Notes paid, purchased or otherwise acquired by
the Trustee on such date, over (2) the aggregate principal amount
of the IT Notes issued on such date, and (B) the denominator of
which equals the aggregate principal amount of the IT Notes
outstanding immediately prior to such payment, purchase or
acquisition. Simultaneously with any such reduction in the
Aggregate Commitment, the Commitment of each Bank shall be
automatically and permanently reduced by such Bank's ratable
portion (based on the ratio between such Bank's Commitment and
the Aggregate Commitment) of such reduction.
"2.5.6. MANDATORY PRINCIPAL PAYMENTS.
(a) If at any time (whether as a result of a reduction of
the Aggregate Commitment pursuant to Section 2.5.5 or otherwise)
the aggregate unpaid principal amount of all outstanding Advances
(including both the Ratable Advances and the Competitive Bid
Advances) exceeds the Aggregate Commitment minus the aggregate
principal amount (before discount) of outstanding CP Notes (other
than CP Notes for the payment of which moneys are on deposit in
the Commercial Paper Account, except moneys which represent
provisional credits still subject in any manner to charge-back or
which are subject to any writ, judgment, warrant of attachment,
execution or similar process), the Trustee shall immediately (i)
make a prepayment of principal on the Advances in an amount equal
to such excess, (ii) pay all interest accrued to the date of such
prepayment on the amount prepaid, and (iii) pay all amounts, if
any, due under Section 3.3 as a result of such prepayment.
(b) In the event that the Lessees make any payment pursuant
to Section 5(a) or 5(c) (other than Daily Lease Charges (as
defined in Section 1 of the Lease Agreement)) or 12(b) of the
Lease Agreement, the Trustee shall immediately pay such amount to
the Collateral Agent for application to the Secured Obligations
in the order of priority specified in Section 7.4 of the Security
Agreement."
(g) Section 6.1 of the Existing Credit Agreement shall be
amended by adding thereto the following new Section 6.1.11 immediately
after the existing Section 6.1.10:
"6.1.11. FIRST MORTGAGE BOND COLLATERAL.
(a) On or before May 1, 1998 the Trustee shall (a) cause
CL&P to secure its obligations under the Lease Agreement by
issuing to the Trustee pursuant to documentation satisfactory in
form and substance to the Collateral Agent and all of the Banks a
single bond of a special series issued under CL&P's first
mortgage bond indenture in a principal amount of not less than
$72,900,000 for the purpose of securing $72,900,000 (plus Daily
Lease Charges accruing with respect thereto) of CL&P's obligation
to pay Stipulated Loss Value under the Lease Agreement, (b) cause
WMECO to secure its obligations under the Lease Agreement by
issuing to the Trustee pursuant to documentation satisfactory in
form and substance to the Collateral Agent and all of the Banks a
single bond of a special series issued under WMECO's first
mortgage bond indenture in a principal amount of not less than
$17,100,000 for the purpose of securing $17,100,000 (plus Daily
Lease Charges accruing with respect thereto) of WMECO's
obligation to pay Stipulated Loss Value under the Lease
Agreement, (c) pursuant to such documentation as may be required
by the Collateral Agent or any of the Banks (which amendment and
such other documentation shall be satisfactory in form and
substance to the Collateral Agent and all of the Banks), pledge
such bonds and all of its rights with respect to such bonds to
the Collateral Agent for the ratable benefit of the Secured
Parties, (d) cause the Lessees to deliver to the Collateral Agent
(x) such evidences of consents to the issuance of such bonds and
the Trustee's pledge of such bonds to the Collateral Agent for
the ratable benefit of the Secured Parties as may be required by
the Collateral Agent or any Bank, (y) such evidences of corporate
and regulatory authorization and approval by or with respect to
the Lessees of such bonds and pledge (including, without
limitation, certified copies of the resolutions of the Board of
Directors of each of the Lessees authorizing such bonds and
pledge and each authorization, license, permit, consent, order or
approval of, or registration, declaration or filing with, the
Securities and Exchange Commission, the Commonwealth of
Massachusetts and the State of Connecticut and any applicable
agency of either thereof) as may be required by the Collateral
Agent or any Bank, and (z) such opinions of counsel to the
Lessees and the Trustor with respect to the validity of such
bonds and pledge and such consents and corporate and regulatory
authorizations and approvals as may be required by the Collateral
Agent or any Bank, and (e) deliver to the Collateral Agent (x)
such evidences of the Trustee's authorization and approval of
such pledge as may be required by the Collateral Agent or any
Bank, and (y) such opinions of counsel to the Trustee with
respect to the validity of such pledge and such authorizations as
may be required by the Collateral Agent or any Bank. Each such
bond shall (i) rank pari passu with all other first mortgage
bonds of CL&P or WMECO, as the case may be, and be entitled to
all of the benefits of the relevant first mortgage indenture,
(ii) mature no later than February 19,1999, (iii) be for such
principal amount and bear interest in such amounts and payable at
such times as shall be sufficient to pay $72,900,000 (in the case
of the CL&P bond) or $17,100,000 (in the case of the WMECO bond)
of the obligations of the Lessees to pay Stipulated Loss Value
under the Lease Agreement plus the Daily Lease Charges accruing
with respect to such amounts, (iv) provide that 81% (in the case
of the CL&P bond) or 19% (in the case of the WMECO bond) of the
payments of principal or interest made by the Trustee under this
Credit Agreement shall be deemed to satisfy the corresponding
payment obligations under the applicable bond, (v) provide that
upon any acceleration of the Bank Obligations such bond shall
immediately become due and payable, and (vi) otherwise be in form
and substance satisfactory to the Collateral Agent and its
counsel.
(b) If, after giving effect to any reduction or
cancellation of the Aggregate Commitment (whether pursuant to
Section 2.5.5, Section 2.5.14 or by any other means) and the
making of any repayment of the Advances required (whether
pursuant to Section 2.5.6 or otherwise) as a result of such
reduction or cancellation, the sum of the Aggregate Commitment
and the outstanding principal amount of the IT Notes equals less
than $90,000,000, the Banks shall pursuant to documentation
satisfactory in form and substance to the Banks and the
Collateral Agent agree to a reduction in the principal amount of
the bonds pledged pursuant to Section 6.1.11(a) so that, after
giving effect to such agreed reduction and any contemporaneous
reduction or cancellation of the Aggregate Commitment, payment of
the Lessees' obligations under the Lease Agreement with respect
to Stipulated Loss Value, repayment of the Advances and/or
repayment of any of the IT Notes, (i) the CL&P bond held by the
Collateral Agent for the ratable benefit of the Secured Parties
shall be for such principal amount and bear interest in such
amounts and payable at such times as shall be sufficient to pay
100% of CL&P's obligations to pay Stipulated Loss Value under the
Lease Agreement plus the Daily Lease Charges accruing with
respect thereto, and (ii) the WMECO bond held by the Collateral
Agent for the ratable benefit of the Secured Parties shall be for
such principal amount and bear interest in such amounts and
payable at such times as shall be sufficient to pay 100% of
WMECO's obligations to pay Stipulated Loss Value under the Lease
Agreement plus the Daily Lease Charges accruing with respect
thereto.
(c) The Trustee shall also reimburse the Bank Agent and the
Collateral Agent for any and all reasonable costs, internal
charges and out-of-pocket expenses (including attorneys' fees and
time charges of attorneys for the Bank Agent or the Collateral
Agent, which attorneys may be employees of the Bank Agent or
special counsel engaged in connection with the issuance, pledge
or release of pledge of the bonds referred to in this Section
6.1.11) paid or incurred by the Bank Agent or the Collateral
Agent in connection with the issuance, pledge or release of the
bonds referred to in this Section 6.1.11."
(h) Section 7.2 of the Existing Credit Agreement shall be
amended by adding the word "or" at the end of Section 7.2.12 thereof
and deleting therefrom all of the language which appears after the end
of Section 7.2.12 and substituting in lieu thereof the following new
Section 7.2.13 and the language set forth below:
"7.2.13. Default by the Trustee in the observance or
performance of any provision of Section 6.1.11 and the
continuance of the same unremedied after written notice thereof
shall have been given to the Trustee by the Bank Agent or any one
Bank;
then, and in any such event, the Bank Agent may, and shall if so
instructed by the Required Banks (or by any one Bank if an Event
of Default described in Section 7.2.13 occurs), by notice of
default given to the Trustee (a copy of which shall be sent to
the Lessees and, if any CP Notes are outstanding, also to the
Dealer), at the same or different times, take one or more of the
following steps (1) terminate forthwith the Commitments, and/or
(2) declare the unpaid principal amount of the Bank Notes
outstanding hereunder to be forthwith due and payable, whereupon
such principal amount, together with accrued interest thereon,
and all commitment and other fees and all other amounts owing
hereunder, shall become immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, anything contained herein or
in any Bank Note to the contrary notwithstanding."
(i) Schedule "I" attached to the Existing Credit Agreement shall
be amended by deleting it in its entirety and substituting in lieu
thereof the Schedule "I" attached hereto.
4. REPRESENTATIONS AND WARRANTIES. The Trustee hereby (i) confirms,
reaffirms and restates as of the Waiver Effective Date (as defined in
Section 5 of this Third Amendment) the representations and warranties set
forth in Article V of the Existing Credit Agreement provided that such
representations and warranties shall be and are hereby amended as follows:
each reference therein to "this Credit Agreement" shall be deemed to be a
collective reference to the Existing Credit Agreement, this Third Amendment
and the Existing Credit Agreement as modified by the waiver set forth in
Section 2 of this Third Amendment, and (ii) confirms, reaffirms and
restates as of the Amendment Effective Date (as defined in Section 6 of
this Third Amendment) the representations and warranties set forth in
Article V of the Existing Credit Agreement provided that such
representations and warranties shall be and are hereby amended as follows:
each reference therein to "this Credit Agreement" shall be deemed to be a
collective reference to the Existing Credit Agreement, this Third Amendment
and the Existing Credit Agreement as amended by this Third Amendment.
5. WAIVER CONDITIONS PRECEDENT. This Third Amendment and the waiver
set forth in Section 2 hereof shall become effective on the date (the
"Waiver Effective Date") on or before February 19, 1998 on which all of the
following conditions precedent shall have been satisfied:
(a) This Third Amendment shall have been duly executed and
delivered by the Bank Agent and the Trustee on one or more
counterparts and all the Banks shall have signed a counterpart or
counterparts hereof and notified the Bank Agent by telex or telecopy
that such action has been taken and that such executed counterpart or
counterparts will be mailed or otherwise delivered to the Bank Agent.
(b) (i) The representations and warranties of the Trustee
contained in Article V of the Existing Credit Agreement, in the
Depositary Agreement, and in the Trust Agreement shall be true and
correct in all material respects on and as of the Waiver Effective
Date with the same effect as if made on and as of the Waiver Effective
Date, (ii) no Event of Default, Unmatured Event of Default or Event of
Termination shall be in existence on the Waiver Effective Date or
shall occur as a result of the execution and delivery of this Third
Amendment, and (iii) each of the Basic Agreements shall be in full
force and effect without amendment or modification, except as approved
in writing by the Bank Agent and the Required Banks.
(c) The representations and warranties of the Lessees contained
in Sections 2 and 35 of the Lease Agreement shall be true and correct
in all material respects on and as of the Waiver Effective Date with
the same effect as if made on and as of the Waiver Effective Date.
(d) The Trustee and the Bank Agent shall have received a
Confirmation of Lessees' Consent and Agreement in substantially the
form of Exhibit "B-1" hereto, appropriately completed and signed by a
Vice President, Treasurer or Assistant Treasurer of each Lessee.
(e) The Lessees shall have paid to the Bank Agent for pro rata
distribution to the Banks based on their respective Commitments after
giving effect to the amendments to the Existing Credit Agreement
provided for in Section 3 of this Third Amendment a fee equal to 3/8%
of the Aggregate Commitments of the Banks after giving effect to the
amendments to the Existing Credit Agreement provided for in Section 3
of this Third Amendment.
(f) The Lessees shall have paid to First Chicago Capital
Markets, Inc. for its own account the arrangement fee provided for in
the letter agreement among the Lessees, the Bank Agent and First
Chicago Capital Markets, Inc. with respect to the extension of the
Maturity Date.
(g) The Bank Agent shall have received with sufficient copies
for each of the Banks all of the following documents:
(i) A certificate of incumbency dated the Waiver Effective
Date and signed by an authorized employee of Bankers Trust
Company which shall certify the names of the employees of Bankers
Trust Company authorized to execute any document hereunder on
behalf of the Trustee, together with specimen signatures of each
such employee, and the Bank Agent and each Bank may conclusively
rely on such certificate until it shall receive a further
certificate of an authorized employee of Bankers Trust Company
cancelling or amending the prior certificate and submitting the
signatures of the employees named in such further certificate.
(ii) A copy of the consent or waiver given pursuant to the
Credit Agreement dated as of November 21, 1996, as amended, among
Northeast Utilities, the Lessees, the Banks and Co-Agents party
thereto, and Citibank, N.A., as administrative agent, pursuant to
which the Lessees are permitted to reduce the Aggregate
Commitment to $100,000,000.
(iii) Copies of the articles or certificate of
incorporation of each Lessee, together with all amendments, and a
certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation within
ten days of the Waiver Effective Date.
(iv) Copies, certified as of the Waiver Effective Date by
the Secretary or an Assistant Secretary of each Lessee, of its
by-laws and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the Lessees'
execution of all the agreements and other documents to be
executed by the Lessees pursuant to this Third Amendment.
(v) An incumbency certificate, dated the Waiver Effective
Date and executed by the Secretary or an Assistant Secretary of
each Lessee, which shall identify by name and title and bear the
signatures of the officers of the respective Lessees authorized
to sign the agreements and other documents to be executed by the
Lessees pursuant to this Third Amendment, upon which certificate
the Bank Agent, the Collateral Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the
Lessees.
6. AMENDMENT CONDITIONS PRECEDENT. The amendments to the Existing
Credit Agreement set forth in Section 3 of this Third Amendment shall
become effective on the date (the "Amendment Effective Date") on or before
March 6, 1998 on which all of the following conditions precedent shall have
been satisfied:
(a) The Waiver Effective Date shall have occurred.
(b) A Ratable Note payable to the order of each Bank shall have
been duly executed and delivered by the Trustee to the Bank Agent.
(c) The Majority Lenders (as defined in the Security Agreement)
shall have executed and delivered to the Collateral Agent a letter
agreement in substantially the form attached hereto as Exhibit "A",
and the Lessor and the Lessees shall have executed and delivered to
the Collateral Agent the waiver letter attached to such letter
agreement as Annex "I".
(d) (i) The representations and warranties of the Trustee
contained in Article V of the Existing Credit Agreement, in the
Depositary Agreement, and in the Trust Agreement shall be true and
correct in all material respects on and as of the Amendment Effective
Date with the same effect as if made on and as of the Amendment
Effective Date, (ii) no Event of Default, Unmatured Event of Default
or Event of Termination shall be in existence on the Amendment
Effective Date or shall occur as a result of the execution and
delivery of this Third Amendment, and (iii) each of the Basic
Agreements shall be in full force and effect without amendment or
modification, except as approved in writing by the Bank Agent and the
Required Banks.
(e) The representations and warranties of the Lessees contained
in Sections 2 and 35 of the Lease Agreement shall be true and correct
in all material respects on and as of the Amendment Effective Date
with the same effect as if made on and as of the Amendment Effective
Date.
(f) The Trustee and the Bank Agent shall have received a
Confirmation of Lessees' Consent and Agreement in substantially the
form of Exhibit "B-2" hereto, dated the Amendment Effective Date and
otherwise appropriately completed and signed by a Vice President,
Treasurer or Assistant Treasurer of each Lessee.
(g) The Trustee and the Bank Agent shall have received a
certificate of the Lessees in substantially the form of Exhibit "C"
hereto, dated the Amendment Effective Date and otherwise appropriately
completed and signed by a Vice President, Treasurer or Assistant
Treasurer of each Lessee.
(h) The Bank Agent shall have received with sufficient copies
for each of the Banks all of the following documents:
(i) Copies, certified as of the Amendment Effective Date,
of each authorization, license, permit, consent, order or
approval of, or registration, declaration or filing with, any
governmental authority (including without limitation, the
Commonwealth of Massachusetts, the State of Connecticut, any
applicable agency of either thereof and the Securities and
Exchange Commission) obtained or made or required to be obtained
or made in connection with the transactions contemplated by this
Third Amendment.
(ii) A certificate dated the Amendment Effective Date of
the Secretary or an Assistant Secretary of each Lessee confirming
that the board resolutions referred to in the certificate
delivered pursuant to Section 5(g)(iv) of this Third Amendment
remain in full force and effect.
(iii) An opinion of Messrs. Cahill Gordon & Reindel,
counsel for the Trustee, dated the Amendment Effective Date and
in form and substance satisfactory to all of the Banks.
(iv) An opinion of Messrs. Day, Berry and Howard, counsel
for the Lessees, dated the Amendment Effective Date and in form
and substance satisfactory to all of the Banks.
(v) An opinion of Messrs. Day, Berry and Howard, or other
counsel for the Trustor satisfactory to the Banks, dated the
Amendment Effective Date and in form and substance satisfactory
to all of the Banks.
7. AMENDMENT TO FORM U-7D. The Trustee hereby agrees that (i)
within 30 days after the Amendment Effective Date the Trustee and the
Lessees shall file an amendment (acceptable in form and substance to the
Bank Agent and its counsel) to the Form U-7D previously filed with the
Securities and Exchange Commission in connection with the Lease Agreement
and the Existing Credit Agreement reflecting the extension of the Maturity
Date and the other amendments to the Existing Credit Agreement provided for
herein, and (ii) any failure to file such amendment in accordance with
clause (i) of this Section 7 shall constitute an immediate Event of Default
under the Existing Credit Agreement as amended by this Third Amendment.
8. EFFECT ON THE EXISTING CREDIT AGREEMENT. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants
and conditions of the Existing Credit Agreement and the Bank Notes (a)
shall remain unaltered, (b) shall continue to be, and shall remain, in full
force and effect in accordance with their respective terms, and (c) are
hereby ratified and confirmed in all respects. Upon the effectiveness of
this Third Amendment, all references in the Existing Credit Agreement
(including references in the Existing Credit Agreement as amended by this
Third Amendment) to "this Credit Agreement" (and all indirect references
such as "hereby", "herein", "hereof" and "hereunder") shall be deemed to be
references to the Existing Credit Agreement as amended by this Third
Amendment.
9. EXPENSES. The Trustee shall reimburse the Bank Agent for any and
all reasonable costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Bank
Agent, which attorneys may be employees of the Bank Agent) paid or incurred
by the Bank Agent in connection with the preparation, review, execution and
delivery of this Third Amendment.
10. ENTIRE AGREEMENT. This Third Amendment, the Existing Credit
Agreement as amended by this Third Amendment, and the Bank Notes embody the
entire agreement and understanding between the parties hereto and supersede
any and all prior agreements and understandings between the parties hereto
relating to the subject matter hereof.
11. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
12. COUNTERPARTS. This Third Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Third Amendment
by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed as of the date first above written.
BANKERS TRUST COMPANY,
not in its individual capacity but solely as trustee
of the Niantic Bay Fuel Trust under the Trust
Agreement dated as of January 4, 1982, as
amended and restated by the Amendment to and
Restatement of Trust Agreement dated as of
February 11, 1992, between it and the Trustor
and the Beneficiaries named therein
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Bank Agent
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
THE BANK OF NEW YORK
By:
Title:
BANKBOSTON, N.A.
By:
Title:
BANK OF MONTREAL
By:
Title:
CIBC, INC.
By:
Title:
THE TORONTO-DOMINION BANK
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
BARCLAYS BANK PLC
By:
Title:
MELLON BANK, N.A.
By:
Title:
FLEET BANK, N.A.
By:
Title:
SWISS BANK CORPORATION
By:
Title:
By:
Title:
<PAGE>
Draft of 2/18-3/98
SCHEDULE "I"
TO
CREDIT AGREEMENT
COMMITMENTS
BANK COMMITMENT
The First National Bank of Chicago $ 15,428,571.43
The Bank of Nova Scotia $ 12,571,428.57
BankBoston, N.A. $ 10,857,142.86
The Bank of New York $ 10,857,142.86
Bank of Montreal $ 8,571,428.57
CIBC, Inc. $ 8,571,428.57
The Toronto-Dominion Bank $ 8,571,428.57
Union Bank of California, N.A. $ 6,285,714.29
Barclays Bank PLC $ 4,571,428.57
Mellon Bank, N.A. $ 4,571,428.57
Fleet Bank, N.A. $ 4,571,428.57
Swiss Bank Corporation $ 4,571,428.57
TOTAL $ 100,000,000.00
<PAGE>
Draft of 2/18-3/98
<PAGE>
Draft of 2/18-3/98
EXHIBIT "B-1"
to Third Amendment and Waiver
CONFIRMATION OF
LESSEES' CONSENT AND AGREEMENT
Confirmation of Lessees' Consent and Agreement dated as of February
19, 1998 executed and delivered by The Connecticut Light and Power Company,
a Connecticut corporation, and Western Massachusetts Electric Company, a
Massachusetts business trust, (collectively, the "Lessees") to The First
National Bank of Chicago, as Collateral Agent.
W I T N E S S E T H:
WHEREAS, the Lessees executed and delivered an Amended and Restated
Lessees' Consent and Agreement dated as of February 11, 1992 (as amended,
supplemented or otherwise modified through the date hereof, the "1992
Lessees' Consent") to The First National Bank of Chicago, as Collateral
Agent;
WHEREAS, the Banks party to the Credit Agreement referred to in the
1992 Lessees' Consent are simultaneously with the execution of this
Confirmation of Lessees' Consent and Agreement granting a waiver under such
Credit Agreement pursuant to a Third Amendment and Waiver dated as of
February 19, 1998 (the "Third Amendment") among the parties to such Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Lessees hereby agree as
follows:
1. Unless the context otherwise requires, all terms used herein which
are defined in the 1992 Lessees' Consent or the Security Agreement and
Assignment of Contracts dated as of January 4, 1982, as amended and
restated by an Amendment to and Restatement of Security Agreement and
Assignment of Contracts dated as of February 11, 1992, referred to in the
1992 Lessees" Consent shall have the meanings assigned to them therein.
2. Effective as of the Waiver Effective Date (as defined in the Third
Amendment) and in order to induce the Bank Agent and the Banks to enter
into the Third Amendment, each of the Lessees hereby (i) acknowledges
notice of and consents to all of the terms and provisions of the Third
Amendment (a copy of which Third Amendment has been received by the
Lessees) and the Credit Agreement as modified or supplemented pursuant to
the waiver set forth in Section 2 of the Third Amendment, (ii) ratifies and
confirms all of the terms and conditions of the 1992 Lessees' Consent and
the Lease Agreement, (iii) confirms to and agrees with the Collateral
Agent, for the ratable benefit of the Secured Parties, that in accordance
with the terms of the Security Agreement and the Lease Agreement, all
representations, warranties, indemnities and agreements of the Lessees
contained in the Lease Agreement and the Assignments shall continue to
inure to the benefit of, and shall be enforceable by, the Collateral Agent,
for the ratable benefit of the Secured Parties, to the same extent as if
the Collateral Agent and the Secured Parties were originally parties to or
named in the Lease Agreement as the "Lessor" or in the Assignments as the
"Assignee", and (iv) confirms to the Collateral Agent, for the ratable
benefit of the Secured Parties, that none of the terms of the Third
Amendment or any other agreement or document executed in connection
therewith or contemplated therein shall release, discharge, or otherwise
limit or affect in any manner any of its obligations under the 1992
Lessees' Consent or the Lease Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Confirmation of Lessees' Consent and Agreement as of the date first
set forth above.
THE CONNECTICUT LIGHT AND POWER COMPANY
By:
Title:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By:
Title:
ACCEPTED AND AGREED TO:
THE FIRST NATIONAL BANK OF CHICAGO,
as Collateral Agent
By:
Title:
<PAGE>
Draft of 2/18-3/98
EXHIBIT "B-2"
to Third Amendment and Waiver
CONFIRMATION OF
LESSEES' CONSENT AND AGREEMENT
Confirmation of Lessees' Consent and Agreement dated as of ________,
1998 executed and delivered by The Connecticut Light and Power Company, a
Connecticut corporation, and Western Massachusetts Electric Company, a
Massachusetts business trust, (collectively, the "Lessees") to The First
National Bank of Chicago, as Collateral Agent.
W I T N E S S E T H:
WHEREAS, the Lessees executed and delivered an Amended and Restated
Lessees' Consent and Agreement dated as of February 11, 1992 (as amended,
supplemented or otherwise modified through the date hereof, the "1992
Lessees' Consent") to The First National Bank of Chicago, as Collateral
Agent;
WHEREAS, simultaneously with the execution of this Confirmation of
Lessees' Consent and Agreement the amendments to the Credit Agreement
referred to in the 1992 Lessees' Consent which are provided for in a Third
Amendment and Waiver dated as of February 19, 1998 (the "Third Amendment")
among the parties to such Credit Agreement are to become effective in
accordance with the terms of the Third Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Lessees hereby agree as
follows:
1. Unless the context otherwise requires, all terms used herein which
are defined in the 1992 Lessees' Consent or the Security Agreement and
Assignment of Contracts dated as of January 4, 1982, as amended and
restated by an Amendment to and Restatement of Security Agreement and
Assignment of Contracts dated as of February 11, 1992, referred to in the
1992 Lessees" Consent shall have the meanings assigned to them therein.
2. Effective as of the Amendment Effective Date (as defined in the
Third Amendment) and in order to induce the Bank Agent and the Banks to
effect the amendments to the Credit Agreement provided for in the Third
Amendment, each of the Lessees hereby (i) acknowledges notice of and
consents to all of the terms and provisions of the Third Amendment (a copy
of which Third Amendment has been received by the Lessees) and the Credit
Agreement as amended pursuant to Section 3 of the Third Amendment, (ii)
ratifies and confirms all of the terms and conditions of the 1992 Lessees'
Consent and the Lease Agreement, (iii) confirms to and agrees with the
Collateral Agent, for the ratable benefit of the Secured Parties, that in
accordance with the terms of the Security Agreement and the Lease
Agreement, all representations, warranties, indemnities and agreements of
the Lessees contained in the Lease Agreement and the Assignments shall
continue to inure to the benefit of, and shall be enforceable by, the
Collateral Agent, for the ratable benefit of the Secured Parties, to the
same extent as if the Collateral Agent and the Secured Parties were
originally parties to or named in the Lease Agreement as the "Lessor" or in
the Assignments as the "Assignee", and (iv) confirms to the Collateral
Agent, for the ratable benefit of the Secured Parties, that none of the
terms of the Third Amendment or any other agreement or document executed in
connection therewith or contemplated therein shall release, discharge, or
otherwise limit or affect in any manner any of its obligations under the
1992 Lessees' Consent or the Lease Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Confirmation of Lessees' Consent and Agreement as of the date first
set forth above.
THE CONNECTICUT LIGHT AND POWER COMPANY
By:
Title:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By:
Title:
ACCEPTED AND AGREED TO:
THE FIRST NATIONAL BANK OF CHICAGO,
as Collateral Agent
By:
Title:
<PAGE>
Draft of 2/18-3/98
EXHIBIT "C"
to Third Amendment and Waiver
CERTIFICATE
OF
THE CONNECTICUT LIGHT AND POWER COMPANY
AND
WESTERN MASSACHUSETTS ELECTRIC COMPANY
This Certificate is being delivered to The First National Bank of
Chicago, as Bank Agent under the Credit Agreement referred to herein (in
such capacity, the "Bank Agent"), and the other financial institutions
party to such Credit Agreement (the "Banks") by The Connecticut Light and
Power Company and Western Massachusetts Electric Company (each of which is
referred to herein individually as a "Company" and collectively as the
"Companies"), pursuant to the Credit Agreement dated as of February 11,
1992 (as amended pursuant to a First Amendment dated as of April 30, 1993,
the Second Amendment dated as of may 12, 1995 and the Third Amendment and
Waiver referred to below, the "Credit Agreement") among the Bank Agent, the
Banks and Bankers Trust Company, not in its individual capacity but solely
as trustee (in such capacity, the "Trustee") of the Niantic Bay Fuel Trust
under the Trust Agreement dated as of January 4, 1982, as amended and
restated by the Amendment to and Restatement of Trust Agreement dated as of
February 11, 1992, between it and the Trustor and Beneficiaries named
therein. Terms defined in the Credit Agreement are used herein with the
same meanings ascribed to them therein, unless otherwise defined herein.
In order to induce the Bank Agent and the Banks to enter into that
certain Third Amendment and Waiver dated as of February 19, 1998 among the
Trustee, the Banks and the Bank Agent (the "Third Amendment") which amends
the Credit Agreement, each Company DOES HEREBY CERTIFY, severally and for
itself alone, that:
1. The execution, delivery and performance, or the acceptance, as
the case may be, by the Trustee, of the Credit Agreement, the Third
Amendment, the Basic Agreements, the Nuclear Fuel Contracts, the Bank Notes
and the CP Notes do not and will not violate any provision of any law or
regulation or of any writ or decree of any court or governmental
instrumentality applicable to the Company or the Trustee, and no consent,
license, approval, order or authorization of, or filing, registration or
declaration with, any governmental authority, bureau or agency or any court
or other Person is or was required in connection with the execution,
delivery, performance, acceptance, validity or enforceability of any of the
above-mentioned documents and instruments or the IT Notes (provided that no
representation is given with respect to the Nuclear Fuel Contracts insofar
as the respective Contractors are concerned), except for (i) a general
license to own Nuclear Fuel from the Nuclear Regulatory Commission
(currently granted under 10 C.F.R. Sections 40.21 and 70.20); (ii) a
license to possess and use special nuclear material granted by the Nuclear
Regulatory Commission; (iii) orders of the Securities and Exchange
Commission ("SEC") under Sections 7 and 10 of the Public Utility Holding
Company Act of 1935; (iv) the approval of the Connecticut Department of
Public Utility Control under Section 16-43 of the Connecticut General
Statutes; (v) the approval of the Massachusetts Department of Public
Utilities; and (vi) a certificate on Form U-7D filed by the Trustee with
the SEC pursuant to the SEC's Rule 7(d), all of which licenses, orders and
approvals have been duly obtained and, are final and are in full force and
effect, and (except as disclosed in the opinion of Day, Berry and Howard
delivered in connection with the Third Amendment) all periods of appeal
relating thereto have expired, and none of such licenses, orders and
approvals is the subject of any pending or, to the best of our knowledge,
any threatened attack by direct proceedings or otherwise with respect to
which there is a reasonable possibility of a decision which would have a
material adverse effect on (A) the financial condition of the Trustee or
the Company, (B) the ability of the Trustee or the Company to carry on its
business, (C) the ability of the Trustee to perform its obligations under
the Credit Agreement, the Third Amendment, the Basic Agreements, the
Nuclear Fuel Contracts, the Bank Notes, the CP Notes or the IT Notes, or
(D) the ability of the Company to perform its obligations under the Basic
Agreements to which it is a party; provided that no representation is given
with respect to Federal, New York or Massachusetts banking or trust laws or
regulations or the securities or blue sky laws or regulations of any State.
2. The Trustee is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. The Trustee is not a "public-
utility company" or a "holding company", or an "affiliate" of a "holding
company", or a "subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended. The
Security Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the creation of the security
interest in the Collateral in favor of the holders of the CP Notes under
the Security Agreement did not require an indenture to be qualified under
said Act.
3. The representations and warranties of the Company contained in
Sections 2 and 35 of the Lease Agreement are true and correct in all
material respects on and as of the date hereof.
4. Each of the Basic Agreements is in full force and effect without
amendment or modification, except as approved in writing by the Bank Agent
and the Required Banks.
5. No Event of Default or Unmatured Event of Default has occurred
under the Credit Agreement, and no Event of Termination has occurred under
the Lease Agreement.
6. The Security Agreement is effective to create in favor of the
Collateral Agent for the ratable benefit of the Secured Parties a legal,
valid and enforceable first Lien on and security interest in all of the
Collateral, and a legal, valid and enforceable purchase money security
interest in all Nuclear Fuel Contracts and Inventory, and all filings,
recordings and other action that are necessary in order to establish,
preserve and perfect the Collateral Agent's Lien on and security interest
in the Collateral as a legal, valid and enforceable first Lien and security
interest, or purchase money security interest, as the case may be, have
been duly effected, except that the foregoing representation shall not be
deemed to be violated as a result of (i) the existence or priority of any
Lien permitted by Section 17 of the Lease Agreement or (ii) the failure to
file financing statements under the Uniform Commercial Code of the State of
Tennessee prior to the time Lessees are obligated to pay the indebtedness
tax with respect thereto pursuant to Section 36(c)(ii) of the Lease
Agreement.
IN WITNESS WHEREOF, each of the Companies has signed this Certificate,
this ___ day of February, 1998.
THE CONNECTICUT LIGHT AND POWER COMPANY
By:
Title:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By:
Title:
<PAGE>
Draft of 2/18-2/98
EXHIBIT "A"
to Third Amendment and Waiver
February __, 1998
The Lenders Listed on the Schedule
of Addressees Attached Hereto
Re: CONSENT TO WAIVER
Ladies and Gentlemen:
We refer to that certain Security Agreement and Assignment of
Contracts dated as of January 4, 1982, as theretofore amended and as
amended and restated by the Amendment to and Restatement of Security
Agreement and Assignment of Contracts dated as of February 11, 1992 (as so
amended and amended and restated, the "Security Agreement"), made by
Bankers Trust Company, not in its individual capacity but solely as Trustee
of the Niantic Bay Fuel Trust (in such capacity, the "Trustee") under the
Trust Agreement dated as of January 4, 1982, as amended and restated by the
Amendment to and Restatement of Trust Agreement dated as of February 11,
1992, between it, State Street Bank and Trust Company of Connecticut,
National Association (which is the successor trustor to The New Connecticut
Bank and Trust Company, National Association, as assignee of the Federal
Deposit Insurance Corporation, as receiver of The Connecticut Bank and
Trust Company, National Association), as Trustor (the "Trustor"), and The
Connecticut Light and Power Company and Western Massachusetts Electric
Company, as Beneficiaries, to The First National Bank of Chicago, as
pledgee and collateral agent (in such capacity, the "Collateral Agent") for
the ratable benefit of the secured parties referred to therein. Unless the
context otherwise requires, all terms used herein which are defined in the
Security Agreement shall have the meanings assigned to them therein.
The Lessees have requested that the Trustee grant certain waivers
under Section 23 of the Lease Agreement by executing and delivering a
waiver letter in substantially the form attached hereto as Annex "I".
Pursuant to Section 36(a) of the Lease Agreement the Trustee may not grant
a waiver under the Lease Agreement without the prior written consent of the
Collateral Agent.
Accordingly, this is to request that by signing and returning to the
Collateral Agent a copy of this letter agreement you instruct the
Collateral Agent pursuant to Section 11(c) of the Security Agreement to
consent to the Trustee's execution and delivery to the Lessees of a waiver
letter in substantially the form attached hereto as Annex "I".
This letter agreement and the instructions to the Collateral Agent set
forth herein shall become effective as of the date hereof when the
Collateral Agent shall have received counterparts of this letter signed by
the Majority Lenders.
This letter agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this letter agreement.
Please acknowledge your receipt of this letter agreement and your
agreement with the terms and provisions contained herein by signing and
returning a copy of this letter agreement to the Collateral Agent.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO,
as Collateral Agent
By:
Title:
AGREED AND INSTRUCTED:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
THE BANK OF NEW YORK
By:
Title:
BANKBOSTON, N.A.
By:
Title:
BANK OF MONTREAL
By:
Title:
CIBC, INC.
By:
Title:
THE TORONTO-DOMINION BANK
By:
Title:
UNION BANK CALIFORNIA, N.A.
By:
Title:
BARCLAYS BANK PLC
By:
Title:
MELLON BANK, N.A.
By:
Title:
FLEET BANK, N.A.
By:
Title:
SWISS BANK CORPORATION
By:
Title:
By:
Title:
WHITING & CO.
By:
Title:
TRAL & CO.
By:
Title:
THE PRUDENTIAL INSURANCE COMPANY
By:
Title:
SEINE & CO.
By:
Title:
PRINCIPAL MUTUAL LIFE INSURANCE CO.
By:
Title:
AETNA LIFE INSURANCE
By:
Title:
PLAYPORT & CO.
By:
Title:
NEW YORK LIFE INSURANCE CO.
By:
Title:
KANE & CO.
By:
Title:
BOSTON & CO.
By:
Title:
BOUYCHAIN & CO.
By:
Title:
BEING & CO.
By:
Title:
<PAGE>
Draft of 2/18-2/98
SCHEDULE OF ADDRESSEES
THE FIRST NATIONAL BANK OF CHICAGO
THE BANK OF NOVA SCOTIA
THE BANK OF NEW YORK
BANKBOSTON, N.A.
BANK OF MONTREAL
CIBC, INC.
THE TORONTO-DOMINION BANK
UNION BANK OF CALIFORNIA, N.A.
BARCLAYS BANK PLC
MELLON BANK, N.A.
FLEET BANK, N.A.
SWISS BANK CORPORATION
WHITING & CO.
TRAL & CO.
THE PRUDENTIAL INSURANCE COMPANY
SEINE & CO.
PRINCIPAL MUTUAL LIFE INSURANCE CO.
AETNA LIFE INSURANCE
PLAYPORT & CO.
NEW YORK LIFE INSURANCE CO.
KANE & CO.
BOSTON & CO.
BOUYCHAIN & CO.
BEING & CO.
<PAGE>
Draft of 2/18-2/98
ANNEX "I"
to Consent to Waiver
__________, 1998
The Connecticut Light and Power Company
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
107 Selden Street
Berlin, Connecticut 06037
Attn: Assistant Treasurer
Re: WAIVER LETTER
Ladies and Gentlemen:
We refer to that certain Nuclear Fuel Lease Agreement dated as of January
4, 1982 as amended and restated by the Amendment to and Restatement of Nuclear
Fuel Lease Agreement dated as of February 11, 1992 (as amended, supplemented
or otherwise modified through the date hereof, the "Lease Agreement") between
Bankers Trust Company, as Trustee of the Niantic Bay Fuel Trust, as lessor,
and The Connecticut Light and Power Company and Western Massachusetts Electric
Company, as Lessees. Unless the context otherwise requires, each term used
herein which is defined in the Lease Agreement shall have the meaning assigned
to it therein.
As you know, the Units have experienced extended outages since various
times in 1995 and 1996. Although the Lessees have informed the Lessor and the
Collateral Agent that they believe all the Units have throughout this period
continued to be in commercial operation and in possession of all necessary
licenses, approvals and consents required for the operation of the Units, the
Lessees have nonetheless requested that the Lessor waive its right during the
Waiver Period (as defined below) under Section 23(a)(vii) or Section 23(a)(ix)
of the Lease Agreement to terminate the Lease Agreement based on the
occurrence of the events described in the immediately following paragraph of
this waiver letter.
Accordingly, this is to advise the Lessees that, subject to the terms and
conditions hereof, the Lessor hereby waives its right during the Waiver Period
to terminate the Lease Agreement under Section 23(a)(vii) or Section 23(a)(ix)
of the Lease Agreement based solely on the following events having occurred on
or prior to the date hereof:
(i) the Units being taken out of service at various times during
1995 and 1996;
(ii) the Nuclear Regulatory Commission's actions prior to the date
hereof in placing the Units on its "watch list"; and
(iii) the Nuclear Regulatory Commission ordering prior to the date
hereof, the Lessees to take certain actions prior to allowing return of
the Units to service, and the Lessees' failure to comply with said orders
prior to the date hereof or during the Waiver Period, including, but not
limited to, (a) resolution of various technical and design basis issues
in order to ensure that the operation and maintenance of the Units is in
accord with each Unit's license, Nuclear Regulatory Commission
regulations and each Unit's updated Final Safety Analysis Report, (b)
development of a comprehensive employee concerns program to handle safety
and quality concerns raised by system employees at the Units, (c)
refinement of licensed operator training programs, and (d) conduct of an
independent Corrective Action Verification program for each Unit.
The waiver set forth herein applies only to the occurrence of the above-
specified events and the Lessor does not waive, and hereby expressly retains,
any and all rights it may have to terminate the Lease Agreement at any time
(x) under any section of the Lease Agreement other than Section 23(a)(vii) or
Section 23(a)(ix), or (y) under Section 23(a)(vii) or Section 23(a)(ix) of the
Lease Agreement based on (1) events or occurrences having already occurred
other than those specifically set forth in subparagraphs (i) through (iii)
above, or (2) events or occurrences of any type (including, without
limitation, those of a type similar to any of the events and occurrences set
forth in subparagraphs (i) through (iii) above) occurring after the date
hereof. The Waiver Period shall be and is hereby defined as the period
commencing as of the date hereof and ending on July 31, 1998 at 5:00 p.m.
(CDT).
All of the terms, conditions and covenants of the Lease Agreement, except
as specifically waived herein, shall remain unaltered and in full force and
effect and shall continue to be binding upon the Lessees.
This waiver letter and the waiver set forth herein shall become effective
as of the Amendment Effective Date (as defined in the Third Amendment and
Waiver referred to in clause (iv) below) when (i) the Collateral Agent shall
have received a copy of this waiver letter signed by the Lessor and both of
the Lessees, (ii) the Collateral Agent shall have consented to this waiver
letter by signing and delivering to the Lessor a copy hereof, (iii) the Lessor
shall have received a copy of this waiver letter signed by both of the Lessees
and consented to by the Collateral Agent, and (iv) the Amendment Effective
Date (as defined therein) shall have occurred under that certain Third
Amendment and Waiver dated as of February 19, 1998 entered into by the parties
to the Credit Agreement which amends the Credit Agreement.
Please acknowledge your acceptance of this waiver letter and of the terms
and provisions contained herein by signing and returning a copy of this waiver
letter to each of the Lessor and the Collateral Agent.
Very truly yours,
BANKERS TRUST COMPANY,
not in its individual capacity but solely as trustee
of the Niantic Bay Fuel Trust under the Trust
Agreement dated as of January 4, 1982, as
amended and restated by the Amendment to and
Restatement of Trust Agreement dated as of
February 11, 1992, between it and the Trustor
and the Beneficiaries named therein
By:
Title:
ACCEPTED:
THE CONNECTICUT LIGHT AND POWER COMPANY
By:
Title:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By:
Title:
CONSENTED:
THE FIRST NATIONAL BANK OF CHICAGO,
as Collateral Agent
By:
Title:
Exhibit F.
February 26, 1998
Securities and Exchange Commission
Judiciary Plaza
Washington, DC 20549
Re:The Connecticut Light and Power Company and Western Massachusetts
Electric Company; Declaration/Application with Respect to Proposed
Amendment of a Credit Facility for Nuclear Fuel Financing
File No. 70-09151
Ladies and Gentlemen:
As counsel to The Connecticut Light and Power Company and Western
Massachusetts Electric Company (the "Companies"), we are furnishing this
opinion to you in connection with the Declaration/Application (the
"Declaration") on Form U-1 of the Companies to the Securities and
Exchange Commission (the "Commission") filed in this proceeding under the
Public Utility Holding Company Act of 1935 (the "Act") with respect to
the proposed changes to the financing arrangements involving the Niantic
Bay Fuel Trust (the "Trust") established pursuant to a Trust Agreement
dated as of January 4, 1982 among The Connecticut Bank and Trust Company
as Trustor, Bankers Trust Company as Trustee (the "Trustee") and the
Companies as beneficiaries, in particular, the proposed credit facility
under a Credit Agreement among the Trustee, the Banks named therein, and
The First National Bank of Chicago as Agent, all as more fully set forth
in the Declaration.
In connection with this opinion, we have examined the Declaration
and the various exhibits thereto including: the proposed Third Amendment
and Waiver to Credit Agreement (the "Credit Agreement"), and the minutes
of meetings of the Companies' Boards of Directors; and we have examined
or caused to be examined such other papers, documents and records, and
have made such examination of law and have satisfied ourselves as to such
other matters as we have deemed relevant or necessary for the purpose of
this opinion. Terms defined in the Declaration are used herein with the
same meanings as therein provided unless otherwise defined herein.
Based upon the foregoing, and assuming that the proposed
transactions are consummated in accordance with the Declaration, we are
of the opinion that:
(a) Upon receipt of approvals of the Connecticut Department of
Public Utility Control and the Massachusetts Department of
Telecommunication and Energy (which approvals have been applied for and
will be received prior to the effectiveness of the Commission's Order),
all state laws applicable to the proposed transactions will have been
complied with;
(b) The obligations to be incurred by the Companies under the
proposed Third Amendment and Waiver to Credit Agreement will be valid and
binding obligations of the Companies in accordance with their terms,
subject to laws of general application with respect to the relief and
rehabilitation of debtors, and provided that equitable remedies are
within the discretion of the court before which enforcement is sought;
and
(c) The consummation of the proposed transactions will not violate
the legal rights of the holders of any securities issued by either of the
Companies or any associate company thereof.
The opinions set forth herein are based solely on the federal laws
of the United States and the laws of the State of Connecticut and The
Commonwealth of Massachusetts, and no opinion is expressed regarding the
laws of any other jurisdiction.
We hereby consent to the use of this opinion in connection with the
filing of the Declaration.
Very truly yours,
/s/ DAY, BERRY & HOWARD
DAY, BERRY & HOWARD
DBH:PLH/mrd
