Exhibit B.4
K&S DRAFT
5/14/97
FIRST AMENDMENT AND WAIVER
Dated as of May , 1997
This FIRST AMENDMENT AND WAIVER dated as of May , 1997 (the "Amendment")
among NORTHEAST UTILITIES ("NU"), THE CONNECTICUT LIGHT AND POWER COMPANY
("CL&P") and WESTERN MASSACHUSETTS ELECTRIC COMPANY ("WMECO"; NU, CL&P and
WMECO, each being a "Borrower", and collectively, the "Borrowers"), the
various financial institutions listed on the signature pages hereto and
CITIBANK, N.A., as administrative agent and collateral agent (the
"Administrative Agent").
WHEREAS, the Borrowers, certain Banks and the Administrative Agent have
entered into a Credit Agreement dated as of November 21, 1996 (as amended to
the date hereof, being the "Existing Credit Agreement"; and the Existing
Credit Agreement as amended by this Amendment, being the "Amended Credit
Agreement"; capitalized terms used herein unless otherwise defined herein
shall have the meanings set forth in the Existing Credit Agreement);
WHEREAS, pursuant to a Letter Waiver dated February 12, 1997 from the
Majority Lenders to NU, as extended by those certain letters dated March 1,
1997, March 25, 1997 and April 2, 1997 from the Majority Lenders to certain
Borrowers, the Lenders temporarily waived compliance by NU with the interest
coverage ratio set forth in Section 7.03(b) of the Existing Credit Agreement
in respect of the Fiscal Quarter ended December 31, 1996;
WHEREAS, pursuant to a Letter Waiver dated March 26, 1997 from the Majority
Lenders to CL&P, as extended by that certain letter dated April 2, 1997 from
the Majority Lenders to certain Borrowers, the Lenders temporarily waived
compliance by CL&P with the interest coverage ratio set forth in Section
7.03(b) of the Existing Credit Agreement in respect of the Fiscal Quarter
ended March 31, 1997;
WHEREAS, pursuant to that certain Interim Waiver dated March 25, 1997 from
the Lenders to the Borrowers, the Borrowers and the Lenders agreed to extend
the expiration date of the above referenced Letter Waivers until May 30, 1997
in order to, among other things, (i) amend the Existing Credit Agreement as
provided for herein and (ii) permanently waive compliance with the interest
coverage ratio covenant set forth in Section 7.03(b) of the Existing Credit
Agreement by NU, with respect to the Fiscal Quarter ended December 31, 1996,
and CL&P, with respect to the Fiscal Quarter ended March 31, 1997; and
WHEREAS, the Majority Lenders and the Borrowers have agreed to amend the
Existing Credit Agreement and permanently waive compliance with the interest
coverage ratio covenant set forth in Section 7.03(b) of the Existing Credit
Agreement by NU and CL&P with respect to certain Fiscal Quarters as
hereinafter set forth;
NOW THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
SECTION 1. Waiver. (a) Effective as of December 31, 1996 and subject to
the satisfaction of the conditions precedent set forth in Section 3 hereof,
the Lenders hereby permanently waive compliance by NU with the interest
coverage ratio covenant set forth in Section 7.03(b) of the Existing Credit
Agreement in respect of the Fiscal Quarter ended December 31, 1996.
(b) Effective as of March 31, 1997 and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, the Lenders hereby
permanently waive compliance by CL&P with the interest coverage ratio
covenant set forth in Section 7.03(b) of the Existing Credit Agreement in
respect of the Fiscal Quarter ended March 31, 1997.
(c) Effective as of November 21, 1996 and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, the Lenders hereby
permanently waive any Event of Default resulting from the failure of the
Borrowers to include on Schedule III to the Credit Agreement the Indebtedness
listed under the caption "The Rocky River Realty Company" on Schedule III
attached to the Amended Credit Agreement.
SECTION 2. Amendment and Restatement of the Existing Credit Agreement. The
Existing Credit Agreement, including, without limitation, the schedules and
exhibits thereto, is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof,
hereby amended and restated in its entirety to read as set forth in Exhibit A
attached hereto.
SECTION 3. Conditions of Effectiveness. (a) This Amendment shall become
effective when, and only when, the Administrative Agent shall have received
all of the following documents, each document (unless otherwise indicated)
being dated the date of receipt thereof by the Administrative Agent (which
date shall be the same for all such documents), in form and substance
satisfactory to the Administrative Agent and in sufficient copies for each
Lender:
(i) Counterparts of this Amendment, duly executed by each Borrower and by
the Majority Lenders;
(ii) Finalized Collateral FMBs (as defined in the Amended Credit Agreement)
of CL&P and WMECO, duly executed by CL&P or WMECO, as the case may be, and
authenticated by the applicable trustee;
(iii) Counterparts of the Collateral Agency Agreement entered into among
the Borrowers, the Lenders and Citibank, N.A., as collateral agent, duly
executed by each party thereto;
(iv) A certificate of the Secretary or Assistant Secretary of each Borrower
certifying:
(A) the names and true signatures of the officers of such Borrower
authorized to sign this Amendment, the applicable Collateral FMB (in the case
of CL&P and WMECO) and the other documents to be delivered by such Borrower
hereunder;
(B) that, in the case of NU, its Declaration of Trust, and in the case of
CL&P and WMECO, its Articles of Incorporation and By-laws, together with all
amendments thereto, as in effect on such date, have not been amended,
supplemented or otherwise modified since November 21, 1996, except, in the
case of the Articles of Incorporation of CL&P, that attached thereto are true
and correct copies of all amendments, supplements and other modifications
made thereto since November 21, 1996;
(C) that attached thereto are true and correct copies of: (1) in the case of
NU, the resolutions of its Board of Trustees and, in the case of CL&P and
WMECO, the resolutions of their respective Boards of Directors, in each case
approving this Amendment, the applicable Collateral FMB (in the case of CL&P
and WMECO) and the other documents to be delivered by or on behalf of such
Borrower hereunder; (2) all documents evidencing other necessary corporate or
other similar action, if any, with respect to the execution, delivery and
performance by such Borrower of this Amendment, the applicable Collateral FMB
(in the case of CL&P and WMECO) and the other documents to be delivered by or
on behalf of such Borrower hereunder; and (3) true and correct copies of all
Governmental Approvals referred to in clauses (i) and (ii) of the definition
of "Governmental Approval" required to be obtained or made by such Borrower
in connection with the execution, delivery and performance by such Borrower
of this Amendment, the applicable Collateral FMB (in the case of CL&P and
WMECO) and the other documents to be delivered by or on behalf of such
Borrower hereunder;
(D) that the resolutions referred to in the foregoing clause (C)(2) have not
been modified, revoked or rescinded and are in full force and effect on such
date; and
(E) with respect to CL&P and WMECO only, that attached thereto are true and
complete copies of its First Mortgage Indenture, together with any
modifications, amendments or supplements delivered subsequent thereto and in
effect on the date hereof;
(v) Favorable opinions of:
(A) Day, Xxxxx & Xxxxxx, counsel to the Borrowers, as to such matters as the
Administrative Agent may reasonably request;
(B) Peabody & Xxxxx, counsel to WMECO, as to such matters as the
Administrative Agent may reasonably request; and
(C) Xxxxxxx X. Xxxxxx, Assistant General Counsel of NUSCO, as to such
matters as the Administrative Agent may reasonably request; and
(vi) Such financial, business and other information regarding each Borrower
and its Principal Subsidiaries, as any Agent shall have reasonably requested.
(b) The Administrative Agent shall have received such other approvals,
opinions and documents as the Majority Lenders, through the Administrative
Agent, shall have reasonably requested as to the legality, validity, binding
effect or enforceability of this Amendment and the Collateral FMBs, or the
financial condition, operations, properties or prospects of each Borrower and
their respective Principal Subsidiaries.
SECTION 4. Representations and Warranties of the Borrower. Each Borrower
represents and warrants as follows:
(a) the representations and warranties of such Borrower contained in Section
6.01 of the Amended Credit Agreement are correct, in all material respects,
on and as of the date hereof; and
(b) no Event of Default or Unmatured Default with respect to such Borrower
has occurred and is continuing under the Amended Credit Agreement.
SECTION 5. Reference to and Effect on the Loan Documents. (a) Upon the
effectiveness of this Amendment, on and after the date hereof, reference in
the Loan Documents (as defined in Amended Credit Agreement) to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and be a reference to the Amended
Credit Agreement.
(b) Except as specifically amended above, the Existing Credit Agreement and
the other Loan Documents, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided in Sections 1 and 2 hereof, operate as a waiver
of any right, power or remedy of any Lender or the Administrative Agent under
any of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
SECTION 6. Costs, Expenses and Taxes. The Borrowers agree to pay on demand:
(i) all costs and expenses of the Administrative Agent 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 (including, in each case, the
reasonable fees and expenses of counsel to the Administrative Agent); and
(ii) all costs and expenses of the Administrative Agent and each Lender
(including all fees and expenses of counsel) in connection with the
enforcement, whether through negotiations, legal proceedings or otherwise, of
the Loan Documents. In addition, the Borrowers agree to pay on demand any
and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment, the Collateral
FMBs and the other instruments and documents to be delivered hereunder, and
agree to save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and
the same agreement.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
NORTHEAST UTILITIES
By:
Name:
Title:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent, Collateral Agent and
Lender
By:
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as Co-Agent and Lender
By:
Name:
Title:
FLEET NATIONAL BANK,
as Co-Agent and Lender
By:
Name:
Title:
CIBC INC.,
as Co-Agent and Lender
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By:
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Lender
By:
Name:
Title:
BARCLAYS BANK PLC,
as Lender
By:
Name:
Title:
MELLON BANK, N.A.,
as Lender
By:
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH,
as Lender
By:
Name:
Title:
By:
Name:
Title:
SWISS BANK CORPORATION,
as Lender
By:
Name:
Title:
By:
Name:
Title:
THE YASUDA TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH,
as Lender
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By:
Name:
Title:
