EXECUTION COPY
THIRD AMENDMENT AND WAIVER TO THE LOAN DOCUMENTS
Dated as of March 3, 1999
This THIRD AMENDMENT AND WAIVER dated as of March 3, 1999 (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 by
the First Amendment and Waiver dated as of May 30, 1997 and the Second
Amendment and Waiver dated as of September 11, 1998 (such Credit Agreement,
as so amended and as otherwise amended, supplemented or otherwise modified
through the date hereof, the "Credit Agreement"; capitalized terms used
herein unless otherwise defined herein shall have the meanings set forth in
the Credit Agreement);
WHEREAS, the Borrowers, certain Banks and the Administrative Agent have
entered into a Collateral Agency Agreement dated as of May 30, 1997 (such
Collateral Agency Agreement, as so amended and as otherwise amended,
supplemented or otherwise modified through the date hereof, the "Collateral
Agency Agreement");
WHEREAS, the Borrowers and the Majority Lenders have agreed to further amend
the Credit Agreement and to waive compliance by CL&P with the common equity
ratio covenant set forth in Section 7.03(a) of the Credit Agreement and to
further amend the Credit Agreement and the Collateral Agency Agreement to
delete NU as a Borrower under the Credit Agreement and as a party to each
such Agreement, in each case as hereinafter set forth;
NOW THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
SECTION 1. Waiver. Subject to the satisfaction of the conditions precedent
in Section 4 hereof, the Lenders hereby waive compliance by CL&P with the
common equity ratio covenant applicable to it set forth in Section 7.03(a) of
the Credit Agreement in respect of the Fiscal Quarter ended December 31,
1998.
SECTION 2. Amendment of Credit Agreement. Subject to the satisfaction of
the conditions precedent in Section 4 hereof the Credit Agreement is hereby
amended as follows:
(a) The recital of parties to the Credit Agreement is hereby amended to
delete subsection (i) therein which reads "(i) NORTHEAST UTILITIES, an
unincorporated voluntary business association organized under the laws of the
Commonwealth of Massachusetts ("NU")" and substitute therefor the phrase
"(i) [Intentionally Deleted]".
(b) The recital of parties to the Credit Agreement is hereby amended further
to amend clause (iii) in its entirety to read as follows:
"(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized
under the laws of the Commonwealth of Massachusetts ("WMECO"); CL&P and
WMECO, each being a "Borrower" and collectively, the "Borrowers");"
(c) The definition of "Borrower Sublimit" in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"'Borrower Sublimit' means: (i) with respect to CL&P, the lesser of (a)
$313,750,000 and (b) the Secured Available Amount and (ii) with respect to
WMECO, the lesser of (a) $150,000,000 and (b) the Secured Available Amount."
(d) The definition of "Consolidated Operating Income" in Section 1.01 of the
Credit Agreement is hereby amended to delete clause (i) thereof and
substitute therefor the following:
"(i) increased by the amount of income taxes accrued less the amount of
income taxes paid by such Borrower and its Subsidiaries during such period,
if and to the extent deducted in the computation of such Borrower's and its
Subsidiaries' consolidated operating income for such period; provided,
however, that income taxes paid shall be excluded from this computation to
the extent that they represent taxes paid on or in respect of amounts
realized from the sale of generating assets auctioned or sold which have not
been or will not be reflected as revenues in the income statements of such
Borrower or its Subsidiaries;"
(e) The definition of "NU" in Section 1.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"'NU' means Northeast Utilities, an unincorporated voluntary business
association organized under the laws of the Commonwealth of Massachusetts."
(f) Section 7.03(a) (the Common Equity Ratio) of the Credit Agreement is
amended to delete the table therein in its entirety and substitute therefor
the following table:
Borrower Period
CL&P 1/1/99 thereafter 0.28:1.00
WMECO 1/1/99 thereafter 0.28:1.00
(g) Section 7.03(b) (the Interest Coverage Ratio) of the Credit Agreement is
amended to delete the table therein in its entirety and substitute therefor
the following table:
Borrower Period
CL&P 1/1/99 through 3/31/99 1.75:1.00
CL&P 4/1/99 and thereafter 1.75:1.00
WMECO 1/1/99 through 3/31/99 1.75:1.00
WMECO 4/1/99 and thereafter 2.00:1.00
(h) Section 8.01 (Events of Default) of the Credit Agreement is amended by
deleting subsection (k) therein (with respect to the Operating Companies of
NU failing to have a minimum Aggregate Dividend Paying Availability) and
substituting therefor the phrase "(k) [Intentionally Deleted]".
(i) Section 8.01 (Events of Default) of the Credit Agreement is amended
further by deleting subsection (l) therein (with respect to the occurrence of
an Event of Default by any other Borrower constituting an Event of Default by
NU) and substituting therefor the phrase "(l) [Intentionally Deleted]".
(j) Section 8.01 (Events of Default) of the Credit Agreement is amended
further by adding at the end of clause (n) before the "." the phrase "; or"
and thereafter new clauses (o), (p) and (q) to read as follows:
"(o) HWP shall sell, transfer or otherwise dispose of (by leave or
otherwise, and whether in one or a series of related transactions) any
portion of its generation, transmission or distribution assets in excess of
10% of its net utility plant assets, in each case as determined on a
cumulative basis from the date of this Agreement through the Termination Date
by reference to its published balance sheets; or
(p) Either of NU or HWP shall cease to conduct its primary business in
substantially the same manner and in substantially the same fields as such
business is conducted on the Closing Date; or
(q) NU shall cease to be a "holding company" (as defined in the Public
Utility Holding Company Act of 1935, as amended)."
(k) Section 8.02 (Remedies Upon Events of Default) of the Credit Agreement
is amended to add after the phrase "(h) or (j)" in the parenthetical in the
third line therein the following phrase "or (o) through (q)".
SECTION 3. Amendment of Collateral Agency Agreement. Subject to the
satisfaction of the conditions precedent in Section 3 hereof the Collateral
Agency Agreement is hereby amended as follows:
(a) The recital of parties to the Collateral Agency Agreement is hereby
amended to delete subsection (i) therein which reads "(i) NORTHEAST
UTILITIES, an unincorporated voluntary business association organized under
the laws of the Commonwealth of Massachusetts ("NU")" and substitute
therefor the phrase "(i) [Intentionally Deleted]".
(b) The recital of parties to the Collateral Agency Agreement is hereby
amended to amend clause (iii) in its entirety to read as follows:
"(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized
under the laws of the Commonwealth of Massachusetts ("WMECO"); CL&P and
WMECO, each being a "Borrower" and collectively, the "Borrowers");"
SECTION 4. Conditions of Effectiveness. Each Section of this Amendment
shall become effective (the "Amendment Effective Date") as of the date first
above written, when, and only when the Administrative Agent shall have
received counterparts of this Amendment duly executed by each Borrower and by
the Majority Lenders (defined in the Credit Agreement as Lenders who,
collectively, on the date hereof, have Commitment Percentages in the
aggregate of at least 66-2/3 percent) or, as to any Lender, advice
satisfactory to the Administrative Agent that such Lender has executed this
Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a) Upon the
effectiveness of this Amendment, on and after the date hereof, (i) NU shall
relinquish all of its rights and be released from its obligations as a
Borrower under the Credit Agreement (other than its rights and obligations
under the Loan Documents that are specified under the terms of such Loan
Documents to survive the payment in full of the obligations of the Borrowers
under the Loan Documents to the extent any claim thereunder relates to an
event arising prior to the Amendment Effective Date) and NU shall cease to be
a party thereto, (ii) each reference in the Loan Documents and each exhibit
thereto to "the Borrowers" or "any Borrower" or words of like import
referring to a Borrower or the Borrowers collectively, shall be deemed to
exclude NU as a Borrower, (iii) each reference in the Loan Documents to "the
Credit Agreement", "thereunder", "thereof" or words of like import referring
to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment, and (iv) each reference in the Loan
Documents to "the Collateral Agency Agreement", "thereunder", "thereof" or
words of like import referring to the Collateral Agency Agreement, shall mean
and be a reference to the Collateral Agency Agreement, as amended by this
Amendment.
(b) Except as specifically amended above, the Credit Agreement, the
Collateral Agency 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, 2 and 3 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
all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and
amendment of this Amendment and any other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel to the Administrative Agent) in accordance with the terms
of Section 10.04 of the Credit Agreement.
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. Delivery of an executed counterpart of a signature page
to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 9. Limitation of Liability. No shareholder or trustee of NU shall
be held to any liability whatever for the payment of any sum of money or for
damages or otherwise under this Amendment, and this Amendment shall not be
enforceable against any such trustee in their or his or her individual
capacities or capacity and this Amendment shall be enforceable against the
trustees of NU only as such, and every person, firm, association, trust or
corporation having any claim or demand arising under this Amendment and
relating to NU, its shareholders or trustees shall look solely to the trust
estate of NU for the payment or satisfaction thereof.
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: /s/Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Assistant Treasurer
THE CONNECTICUT LIGHT AND POWER COMPANY
By: /s/Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Assistant Treasurer
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By: /s/Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Assistant Treasurer
CITIBANK, N.A.
as Administrative Agent, Collateral Agent and Lender
By: /s/Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Director
TORONTO DOMINION (NEW YORK), INC.,
as Co-Agent and Lender
By: /s/Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as Co-Agent and Lender
By: /s/Xxxxxx X. Xxxxxx
Title:Vice President
CIBC INC.
as Co-Agent and Lender
By:/s/Xxxxx X'Xxxxx
Title: Executive Director
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agent and Lender
By: /s/Xxxxxxxxx X. Ember
Title: Assistant Vice President
BANKBOSTON, N.A.,
as Lender
By: /s/Xxxxxx X. X'Xxxxx
Title:Division Executive
BARCLAYS BANK PLC,
as Lender
By: /s/Sydney X. Xxxxxx
Title: Director
MELLON BANK, N.A.
as Lender
By:
Name:
Title:
UBS AG, NEW YORK BRANCH, as Lender
By: /s/Xxxx Xxxxxxxx
Title:Director
By: /s/Xxxxxx X. Xxxxxx
Title: Associate Director
UBS AG, STANFORD BRANCH, as Lender
By: /s/Xxxx Xxxxxxxx
Title:Director
By: /s/Xxxxxx X. Xxxxxx
Title: Associate Director
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK BRANCH,
as Lender
By: /s/Xxxxxxxxx Xxxxxxxx
Title:Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/Xxxxxx X. Xxxx
Title:Vice President
