Exhibit 4.11
================================================================================
SUPPLEMENTAL INDENTURE
Dated as of May 1, 1997
To
First Mortgage Indenture and Deed of Trust
Dated as of August 1, 1954
-----------------------
WESTERN MASSACHUSETTS ELECTRIC COMPANY
TO
STATE STREET BANK AND TRUST COMPANY, Trustee
1997 Series A Bonds, Due November 21, 1999
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXX XXXXXXXXXXXXX ELECTRIC COMPANY
Supplemental Indenture, Dated as of May 1, 1997
TABLE OF CONTENTS
Page
Parties........................................................... 1
Recitals.......................................................... 1
Granting Clause................................................... 3
Habendum.......................................................... 4
Grant in Trust.................................................... 4
ARTICLE I
DESCRIPTION AND ISSUE OF THE 1997 SERIES A BONDS
(S)1.01. Provisions of the 1997 Series A Bonds; Interest Accrual; Effect
of Payment on Credit Borrowings................................. 4
(S)1.02. Transfer and Exchange of the 1997 Series A Bonds; Agent as
Registered Holder; Restriction on Transfer of the 1997 Series A
Bonds........................................................... 6
(S)1.03. Conditions Under Which the 1997 Series A Bonds Not Entitled to
Benefits of Mortgage............................................ 7
(S)1.04. Issuance of Bonds Against Bonds to be Retired or Redeemed....... 7
ARTICLE II
DIVIDEND COVENANT
(S)2.01. Dividend Covenants.............................................. 7
ARTICLE III
REPAYMENT OF THE 1997 SERIES A BONDS
(S)3.01. Repayment Upon Repayment of Credit Borrowings................... 8
ARTICLE IV
DIVIDEND COVENANT
(S)4.01. Trustee......................................................... 8
i
ARTICLE V
DEFEASANCE
(S)5.01 Defeasance...................................................... 8
ARTICLE VI
MISCELLANEOUS PROVISIONS
(S)6.01. Effect of Recitals.............................................. 8
(S)6.02. Counterparts.................................................... 10
(S)6.03. Benefits of Supplemental Indenture and the 1997 Series A Bonds.. 10
(S)6.04. Effect of Table of Contents and Headings........................ 10
(S)6.05. Payment Due on Holidays......................................... 10
TESTIMONIUM.....................................................................
SIGNATURES......................................................................
ACKNOWLEDGMENTS.................................................................
SCHEDULE A - Form of Bond for the 1997 Series A; Form of Trustee's Certificate..
SCHEDULE B - Property Subject to the Lien of the Indenture......................
SCHEDULE C - Detail of Filing and Recording of First Mortgage Indenture and Deed
of Trust...........................................................
ii
SEVENTY-NINTH SUPPLEMENTAL INDENTURE dated as of the first day of May,
1997, made and entered into by and between WESTERN MASSACHUSETTS ELECTRIC
COMPANY, a corporation organized under the laws of the Commonwealth of
Massachusetts, with its principal place of business at 000 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter generally called the
Company), and STATE STREET BANK AND TRUST COMPANY, a trust company organized
under the laws of the Commonwealth of Massachusetts, as successor to The First
National Bank of Boston, as TRUSTEE under the Mortgage Indenture described
below, with its principal corporate trust office at Two International Place, 4th
Floor, Boston, MA 02110 (said State Street Bank and Trust Company or, as applied
to action antedating the effective date of said succession, said The First
National Bank of Boston, or its predecessor by merger, Old Colony Trust Company,
being hereinafter generally called the Trustee).
WITNESSETH that:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee its First Mortgage Indenture and Deed of Trust/1/ dated as of August 1,
1954 (hereinafter as amended by a First Supplemental Indenture dated as of
October 1, 1954, called the Original Indenture, the Original Indenture with all
indentures supplemental thereto being hereinafter generally called the
Indenture), conveying certain property therein described in trust as security
for the Bonds of the Company to be issued thereunder as therein provided and for
other purposes more particularly specified therein, and the Trustee has accepted
said Trust; and
WHEREAS, there are outstanding $244,800,000 aggregate principal amount
of Bonds which have been issued at various times and in various amounts and with
various dates of maturity and rates of interest and have been denominated Series
G, Series V, Series W, Series X and Series Y; and
WHEREAS, pursuant to the Credit Agreement dated as of November 21,
1996 (the "Original Agreement") among Northeast Utilities ("NU"), The
Connecticut Light and Power Company ("CL&P"), the Company, the Lenders and Co-
Agents named therein (collectively, the "Lenders") and Citibank, N.A. as
administrative agent, as amended and restated by a First Amendment and Waiver
dated as of May 30, 1997 (the Original Agreement, as so amended and restated,
herein called the "Credit Agreement"), the Company has the right, upon meeting
the conditions thereof, to obtain up to $150,000,000 of Advances (as that term
and all other capitalized terms used but not otherwise defined in this
Supplemental Indenture are defined in the Credit Agreement) under the Credit
Agreement; and
WHEREAS, in consideration of the line of credit being provided by the
Banks under the Credit Agreement and pursuant to the provisions thereof, the
Company has agreed to issue up to $90,000,000 principal amount of its First
Mortgage Bonds, 1997 Series A (hereinafter generally referred to as the "1997
Series A Bonds" or the
----------------------
/1/ For details as to the filing and recording of this instrument in
Massachusetts, see Schedule C.
"bonds of 1997 Series A") to evidence and secure the Company's obligation under
the Credit Agreement to repay Advances as provided in the Credit Agreement, to
provide security for the borrowings by the Company under the Credit Agreement,
to provide security for up to $955,000 in interest on Advances (representing the
amount of interest that would accrue on the Borrower Sublimit for a period of 94
days at an interest rate equal to the difference between 11.0% and the 8.563%
maximum interest rate on the 1997 Series A Bonds, such amount being referred to
herein as "Excess Interest") and to secure the Company's obligation to pay the
Facility Fee under Section 2.02(b) of the Credit Agreement; provided however
that such obligation shall not exceed $196,000 (the "Facility Fee Obligation");
and
WHEREAS, pursuant to the terms of the Credit Agreement the entire
$90,000,000 principal amount of the 1997 Series A Bonds shall be made available
to the Agent as potential collateral for the aggregate unpaid amount of Advances
to the Company outstanding under the Credit Agreement from time to time plus the
Facility Fee Obligation plus any Excess Interest together with accrued and
unpaid interest thereon then payable by the Company thereunder (collectively, as
of any time for determining the same, the "Credit Borrowings"), it being
understood that the actual indebtedness evidenced by the 1997 Series A Bonds as
of any time shall be limited to the Credit Borrowings as determined at such
time, that at no time shall any claim be made for principal and interest on the
1997 Series A Bonds in excess of the Credit Borrowings as determined at such
time, and that, to the extent that the outstanding principal amount of the 1997
Series A Bonds exceeds such amount, neither the Lenders nor the Agent shall have
any right under, or right to exercise any right granted to the holders of such
excess 1997 Series A Bonds under, the Indenture; and
WHEREAS, in consideration of the Advances to be provided by the
Lenders under the Credit Agreement, and pursuant to the provisions of the Credit
Agreement, the Company has agreed to issue, and by appropriate and sufficient
corporate action in conformity with the provisions of the Indenture has duly
determined to create, to evidence and secure the Company's obligation under the
Credit Agreement to make loan payments as aforesaid and to provide security for
the Credit Borrowings, a further series of bonds under the Indenture, the 1997
Series A Bonds, to consist of fully registered bonds containing terms and
provisions duly fixed and determined by the Board of Directors of the Company
and expressed in this Supplemental Indenture, including terms and provisions
with respect to maturity, interest payment, interest rate and repayment as
provided herein, such fully registered bonds and the Trustee's certificate of
its authentication thereof to be substantially in the forms thereof respectively
set forth in Schedule A appended hereto and made a part hereof; and
WHEREAS, the Company has authorized the issue pursuant to (S)3.04 of
the Original Indenture of an additional series of its fully registered First
Mortgage Bonds without coupons, to be issued under the Indenture, to be
designated "First Mortgage Bonds, 1997 Series A, due November 21, 1999" and to
be limited (except as provided in (S)2.13 of the original Indenture) in
aggregate principal amount not exceeding $90,000,000, being the entire issue of
the 1997 Series A Bonds; and
2
WHEREAS, the Company, pursuant to resolutions duly and legally adopted
by its Board of Directors at a meeting duly called and held for the purpose, has
duly authorized the execution and delivery of this Seventy-ninth Supplemental
Indenture and the issue of the 1997 Series A Bonds in the aggregate principal
amount not exceeding $90,000,000; and
WHEREAS, the issue of the 1997 Series A Bonds in said aggregate
principal amount not exceeding $90,000,000 and the execution and delivery of
this Seventy-ninth Supplemental Indenture have been duly approved to the extent
required by law by the Department of Public Utilities of said Commonwealth and
by the Department of Public Utility Control of the State of Connecticut; and
WHEREAS, all requirements of law and of the articles of organization,
as amended, and of the by-laws of the Company, including all requisite action on
the part of directors and officers, and all things necessary to make the 1997
Series A Bonds, when duly executed by the Company and delivered, the valid,
binding, and legal obligations of the Company, and the covenants and
stipulations herein contained valid and binding obligations of the Company, have
been done and performed, and the execution and delivery hereof have been in all
respects duly authorized; and
NOW, THEREFORE, THIS SEVENTY-NINTH SUPPLEMENTAL INDENTURE WITNESSETH:
In consideration of the premises and of the mutual covenants herein contained
and of the purchase and acceptance by the registered owners thereof of the 1997
Series A Bonds at any time issued hereunder, and of one dollar ($1) duly paid to
the Company by the Trustee and for other good and valuable considerations, the
receipt whereof at or before the ensealing and delivery of these presents is
hereby acknowledged, and in confirmation of and supplementing the Indenture, and
in the performance and observance of the provisions thereof, and in order to
establish the form and characteristics of the 1997 Series A Bonds, and to secure
the payment of the principal of and premium, if any, and interest on all Bonds
from time to time outstanding under the Indenture according to their tenor and
effect, and to secure the performance and observance of all the covenants and
conditions contained therein and in this Seventy-ninth Supplemental Indenture,
the Company has executed and delivered this Seventy-ninth Supplemental
Indenture, and does hereby confirm the conveyance, transfer, assignment, and
mortgage of the franchises and properties as set forth in the Original Indenture
and in all supplemental indentures prior hereto, excepting only such as have
been released in accordance with Article VII of the Indenture and has granted,
bargained, sold, conveyed, assigned, transferred, mortgaged, and confirmed, and
by these presents does grant, bargain, sell, convey, assign, transfer, mortgage,
and confirm unto State Street Bank and Trust Company, as Trustee, as provided in
the Indenture, its successors in the trusts thereof and hereof, and its and
their assigns, all and singular the franchises and properties of the Company of
the character described and defined in the Original Indenture as Mortgaged
Property (including all and singular such franchises and properties which may
hereafter be acquired by the Company) acquired after the execution of the
Original Indenture including all real
3
property conveyed to the Company prior to the date hereof, including, but not
limited to, the property set forth in Schedule B appended hereto, subject,
however, to Permitted Encumbrances and to any mortgages or other liens or
encumbrances thereon of the character described in (S)4.10 of the Indenture
existing at the time of the acquisition of such franchises and properties by the
Company or created contemporaneously to secure or to raise a part of the
purchase price thereof and to any renewals or extensions of such Permitted
Encumbrances, mortgages or other liens or encumbrances.
There is furthermore expressly excepted and excluded from the lien and
operation of this Seventy-ninth Supplemental Indenture, and from the definition
of the Mortgaged Property, all the property of the Company described in clauses
A to J, both inclusive, of the granting clauses of the Original Indenture,
whether owned at the time of the execution of this Seventy-ninth Supplemental
Indenture or thereafter acquired by it.
TO HAVE AND TO HOLD all and singular the above described franchises
and properties unto the said State Street Bank and Trust Company, as Trustee
under the Indenture, its successors in the trusts thereof and hereof, and its
and their assigns, to its and their own use forever.
BUT IN TRUST, NEVERTHELESS, upon the terms and trusts set forth in the
Indenture for the equal pro rata benefit, security, and protection of the
bearers or registered owners of the Bonds from time to time certified, issued,
and outstanding under the Indenture, without any discrimination, preference,
priority, or distinction of any Bond or coupon over any other Bond or coupon by
reason of series, priority in the time of issue, sale, or negotiation thereof,
or otherwise howsoever, except as otherwise provided in the Indenture;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and the premium, if any, and interest on the Bonds outstanding
under the Indenture at the times and in the manner stipulated therein and in the
Indenture and shall keep, perform, and observe all and singular the covenants
and promises in said Bonds and in the Indenture expressed to be kept, performed,
and observed by or on the part of the Company, then this Seventy-ninth
Supplemental Indenture and the estate and rights hereby granted shall, pursuant
to the provisions of Article XV of the Original Indenture, cease, determine and
be void, but only if the Indenture shall have ceased, determined and become
void, as therein provided, otherwise to be and remain in full force and effect.
ARTICLE I
DESCRIPTION AND ISSUE OF THE 1997 SERIES A BONDS.
(S)1.01. Provisions of the 1997 Series A Bonds; Interest Accrual;
Effect of Payment on Credit Borrowings. The 1997 Series A Bonds and the
certificate of authentication of the Trustee upon said Bonds shall be
substantially in the forms
4
thereof respectively set forth in Schedule A appended hereto, with such changes
therein as shall be approved by the Company and the Trustee. The 1997 Series A
Bonds shall be designated as the First Mortgage Bonds, 1997 Series A, due
November 21, 1999 of the Company, shall be issuable in the aggregate principal
amount not exceeding ninety million dollars ($90,000,000) and no more except as
provided in (S)2.13 of the Original Indenture. The Bonds shall be issued in
fully registered form in denominations of one thousand dollars ($1,000) and any
multiple thereof, and shall be redeemable in the manner provided in Article III
of this Seventy-ninth Supplemental Indenture. Notwithstanding the provisions of
(S)2.11 of the Original Indenture, no charge, except for taxes or governmental
charges, shall be made by the Company upon any registration of transfer or
exchange of the 1997 Series A Bonds.
The 1997 Series A Bonds shall mature on November 21, 1999 and, subject
to the provisions of the Credit Agreement, shall bear interest, payable on the
dates on which interest payments are payable by the Company to the Lenders from
time to time under the Credit Agreement (each such date on which interest is so
payable by the Company to the Lenders under the Credit Agreement being an
interest payment date applicable to the 1997 Series A Bonds), until the
Company's obligation in respect of the principal thereof shall be discharged, in
amounts equal to the interest payments payable by the Company to the Lenders
pursuant to the Credit Agreement on such interest payment dates applicable to
the 1997 Series A Bonds; provided, however, that in no event shall the interest
-------- -------
rate payable on the 1997 Series A Bonds exceed 8.563%; and shall be payable both
as to principal and interest at the office or agency of the Company in the
Borough of Manhattan, New York, New York, in any coin or currency of the United
State of America which at the time of payment is legal tender for the payment of
public and private debts. The interest on the 1997 Series A Bonds, whether in
temporary or definitive form, shall be payable without presentation of such
bonds; and only to or upon the written order of the registered holders thereof
of record at the applicable record date.
If, pursuant to the Credit Agreement, the Company's right to obtain
Advances thereunder shall be terminated and all or any portion of the Credit
Borrowings shall become or be declared immediately due and payable by the
Company, a like principal amount of the 1997 Series A Bonds, together with all
accrued interest thereon, shall without notice or demand of any kind, become
immediately due and payable. In addition, the 1997 Series A Bonds, shall be
repayable in whole or in part according to the terms and provisions provided
herein in Article III.
Subject to the provisions of the Credit Agreement and subject to the
Company's right to repay Advances and thereafter obtain new Advances, in each
case collateralized by the 1997 Series A Bonds, thereunder, anything in the
Indenture, this Supplemental Indenture or any bond of 1997 Series A to the
contrary notwithstanding, the bonds of 1997 Series A shall be deemed paid, and
all obligations of the Company to pay at the times provided herein the principal
of, premium, if any, and interest on the bonds of 1997 Series A shall be
satisfied and discharged, when and to the extent that the Credit Borrowings
shall have been
5
indefeasibly paid in full in accordance with the terms thereof and the
obligations of the several Lenders to make Advances to the Company under the
Credit Agreement shall have been terminated, it being understood that the actual
indebtedness evidenced by the 1997 Series A Bonds as of any time shall be
limited to the Credit Borrowings as determined at such time, that at no time
shall any claim be made for principal and interest on the 1997 Series A Bonds in
excess of the Credit Borrowings as determined at such time, and that, to the
extent that the outstanding principal amount of the 1997 Series A Bonds exceeds
such amount, neither the Lenders nor the Agent shall have any right under, or
right to exercise any right granted to the holders of such excess 1997 Series A
Bonds under, the Indenture. Unless the Trustee shall have received written
notice to the contrary from the Company or the Collateral Agent, the Trustee
shall be entitled to assume that the Company has made all payments required
under the Credit Agreement.
Notwithstanding the provisions of (S)2.01 and (S)2.12 of the Original
Indenture, each bond of 1997 Series A shall be dated as of May 30, 1997 and
shall bear interest on the principal amount thereof as provided herein and in
the Credit Agreement.
Notwithstanding the provisions of (S)2.12 of the Original Indenture
and subject to the provisions of the Credit Agreement, the person in whose name
any bond of 1997 Series A is registered at the close of business on any record
date (as hereinafter defined) with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such bond upon any registration of transfer
or exchange thereof subsequent to the record date and prior to such interest
payment date, except that if and to the extent the Company shall default in the
payment of the interest due on such interest payment date, then such defaulted
interest shall be paid to the person in whose name such bond is registered on a
subsequent record date for the payment of defaulted interest if one shall have
been established as hereinafter provided and otherwise on the date of payment of
such defaulted interest. A subsequent record date may be established by the
Company by notice mailed to the owners of the bonds of 1997 Series A not less
than ten (10) days preceding such record date, which record date shall not be
more than thirty (30) days prior to the subsequent interest payment date. The
term "record date" as used in this Section with respect to any regular interest
payment date shall mean the day next preceding such interest payment date, or if
such day shall not be a Business Day, the next preceding day which shall be a
Business Day.
6
(S)1.02. Transfer and Exchange of the 1997 Series A Bonds; Agent as
Registered Holder; Restriction on Transfer of the 1997 Series A Bonds.
The bonds of 1997 Series A may be surrendered for registration of transfer as
provided in the Indenture at the office or agency of the Company in the Borough
of Manhattan, New York, New York, and may be surrendered at said office for
exchange for a like aggregate principal amount of bonds of 1997 Series A of
other authorized denominations. Pursuant to provisions of (S)2.07 of the
Original Indenture, the Company appoints State Street Bank and Trust Company,
N.A. and its successors as the agency of the Company in the Borough of
Manhattan, City of New York, New York, for the registration of transfer and
exchange of the 1997 Series A Bonds.
The bonds of 1997 Series A shall be issued to and registered in the
name of CITIBANK, N.A. as Collateral Agent for the benefit of the several
Lenders and, anything in the Indenture, this Supplemental Indenture or any bond
of 1997 Series A to the contrary notwithstanding, the bonds of 1997 Series A
shall not be sold, assigned, pledged or transferred, except to effect the
transfer to any successor Collateral Agent under the Credit Agreement or under
the Collateral Agency Agreement.
(S)1.03. Conditions under which the 1997 Series A Bonds Not Entitled
to Benefits of Mortgage. As provided in the Credit Agreement, anything in
the Indenture, this Supplemental Indenture or any bond of the 1997 Series A to
the contrary notwithstanding, (i) the actual indebtedness evidenced by the 1997
Series A Bonds as of any time shall be limited to the Credit Borrowings as
determined at such time; (ii) at no time shall any claim be made for principal
and interest on the 1997 Series A Bonds in excess of the Credit Borrowings as
determined at such time; and (iii) to the extent that the outstanding principal
amount of the 1997 Series A Bonds exceeds such amount, neither the Lenders nor
the Agent shall have any right under, or right to exercise any right granted to
the holders of such excess 1997 Series A Bonds under, the Indenture.
(S)1.04. Issuance of Bonds Against Bonds to be Retired or
Redeemed. Each initial and successive holder of any bond of the 1997 Series
A, solely by virtue of its acquisition thereof, shall have and be deemed to have
given written consent, without the need for any further action or consent by
such holder, to the following amendment to the Original Indenture, and each said
holder hereby authorizes the Trustee, on behalf of the holder, to waive any
notice contemplated by the Indenture and to give written consent to such
amendment. The amendment modifies (S)3.04(h) of the Original Indenture to read
as follows:
(h) in the event that (i) the total annual interest
requirements of the Bonds then to be issued under this Section exceed
the total annual interest requirements of the Bonds in respect of the
payment, retirement, redemption, Cancellation or surrender to the
Trustee for Cancellation of which said Bonds are then to be issued and
(ii) such Bonds in respect of the payment, retirement, redemption,
Cancellation or surrender to the Trustee
7
for Cancellation of which said Bonds are then to be issued are then
Outstanding and mature more than two years from the date of the
Officers' Certificate contemplated by paragraph (d) of this Section,
an Earnings Certificate.
ARTICLE II
DIVIDEND COVENANT.
(S)2.01. Dividend Covenants. This Seventy-ninth Supplemental Indenture
imposes no additional restrictions on the Company's right to declare or pay any
dividends or make any other distributions on or in respect of its common stock
or to purchase or otherwise acquire for a consideration any shares of its common
stock beyond those created by prior supplemental indentures and those in the
Company's preferred stock provisions, by-laws and those otherwise required by
law.
ARTICLE III
REPAYMENT OF THE 1997 SERIES A BONDS.
(S)3.01. Repayment Upon Repayment of Credit Borrowings. In the event
that the Credit Agreement is (i) terminated in its entirety with respect to the
Company and the Credit Borrowings shall have been paid in full, all of the then
outstanding 1997 Series A Bonds shall be deemed paid and all obligations of the
Company thereunder and hereunder shall be deemed satisfied and discharged, or
(ii) amended to reduce the aggregate principal amount of Advances which the
Company may obtain thereunder (the Company's "Borrower Sublimit"), bonds of the
1997 Series A Bonds in a principal amount equal to the amount by which the then
outstanding 1997 Series A Bonds exceed the sum of the Company's Borrower
Sublimit plus the Facility Fee Obligation and the Excess Interest, shall be
deemed paid and all obligations of the Company hereunder and thereunder with
respect to such principal amount of the 1997 Series A Bonds shall be deemed
satisfied and discharged. Except as provided herein, the 1997 Series A Bonds
shall not be redeemable.
ARTICLE IV
THE TRUSTEE.
(S)4.01 Trustee. The Trustee shall be entitled to, may exercise, and
shall be protected by, where and to the full extent that the same are
applicable, all the rights, powers, privileges, immunities and exemptions
provided in the Indenture, as if the provisions concerning the same were
incorporated herein at length. The remedies and provisions of the Indenture
applicable in case of any default by the Company thereunder are hereby adopted
and made applicable in case of any default with respect to the properties
included herein and, without limitation of the generality of the foregoing,
there are hereby conferred upon the Trustee the same
8
powers of sale and other powers over the properties described herein as are
expressed to be conferred by the Indenture.
ARTICLE V
DEFEASANCE.
(S)5.01. Defeasance. This Seventy-ninth Supplemental Indenture shall
become void when the Indenture shall be void.
ARTICLE VI
MISCELLANEOUS PROVISIONS.
(S)6.01. Effect of Recitals. The recitals in this Seventy-ninth
Supplemental Indenture shall be taken as recitals by the Company alone, and
shall not be considered as made by or as imposing any obligation or liability
upon the Trustee, nor shall the Trustee be held responsible for the legality or
validity of this Seventy-ninth Supplemental Indenture, and the Trustee makes no
covenants or representations, and shall not be responsible, as to or for the
effect, authorization, execution, delivery, or recording of this Supplemental
Indenture, except as expressly set forth in the Original Indenture. The Trustee
shall not be taken impliedly to waive by this Seventy-ninth Supplemental
Indenture any right it would otherwise have as provided in the Original
Indenture, this Seventy-ninth Supplemental Indenture shall hereafter form a part
of the Indenture.
(S)6.02. Counterparts. This Seventy-ninth Supplemental Indenture may
be simultaneously executed in any number of counterparts, each of which shall be
deemed an original; and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument, which shall for all
purposes be sufficiently evidenced by any such original counterpart.
(S)6.03. Benefits of Supplemental Indenture and 1997 Series A Bonds.
Nothing in this Supplemental Indenture, or in the bonds of 1997 Series A,
expressed or implied, is intended or shall be construed to give to any person or
corporation other than the Company, the Trustee and the holders of the bonds and
interest obligations secured by the Indenture and this Supplemental Indenture,
any legal or equitable right, remedy or claim under or in respect of this
Supplemental Indenture or of any covenant, condition or provision herein
contained. All the covenants, conditions and provisions hereof are and shall be
for the sole and exclusive benefit of the Company, the Trustee and the holders
of the bonds and interest obligations secured by the Indenture and this
Supplemental Indenture.
(S)6.04. Effect of Table of Contents and Headings. The table of
contents and the descriptive headings of the several Articles and Sections of
this Supplemental Indenture are inserted for convenience of reference only and
are not to be taken to be any part of this Supplemental Indenture or to control
or affect the meaning, construction or effect of the same.
9
(S)6.05. Payment Due on Holidays. If the date for making any payment
or the last date for performance of any act or the exercise of any right, as
provided in this Supplemental Indenture, is not a Business Day, such payment may
be made or act performed or right exercised on the next succeeding Business Day
unless otherwise provided herein, with the same force and effect as if done on
the nominal date provided in this Supplemental Indenture.
10
IN WITNESS WHEREOF, said Western Massachusetts Electric Company has caused
this instrument to be executed in its corporate name by its President or one of
its Vice Presidents and by its Treasurer or an Assistant Treasurer, thereunto
duly authorized, and its corporate seal to be hereto affixed and attested by its
Clerk or an Assistant Clerk, and said State Street Bank and Trust Company has
caused this instrument to be executed in its corporate name by one of its Vice
Presidents or Assistant Vice Presidents, thereunto duly authorized, and its
corporate seal to be hereto affixed, all as of the day and year first above
written.
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
Vice President
and by /s/ Xxxxx X. XxXxxx
------------------------------
Xxxxx X. XxXxxx
Assistant Treasurer
[CORPORATE SEAL APPEARS HERE]
Attest:
/s/ Xxxxxx X. Wax
--------------------------------
Assistant Clerk
Signed, sealed and delivered by
Western Massachusetts Electric
Company in our presence:
/s/ Xxxxxxx Xxxxxx
--------------------------------
/s/ Xxxxx XxXxxxxxx
--------------------------------
STATE OF CONNECTICUT
COUNTY OF HARTFORD BERLIN
On this 22nd day of May in the year 1997 before me personally came Xxxx
X. Xxxxx and Xxxxx X. XxXxxx, to me personally known, who being by me duly sworn
did depose and say that they are respectively a Vice President and an Assistant
Treasurer of Western Massachusetts Electric Company, one of the corporations
described in and which executed the foregoing instrument; that they know the
seal of said corporation; that the seal affixed to said instrument opposite the
execution was affixed thereto pursuant to the authority of its Board of
Directors; that they signed their names thereto by like authority; and they
acknowledged said instrument to be their free act and deed in their said
respective capacities and the free act and deed of Western Massachusetts
Electric Company.
IN WITNESS WHEREOF, I have hereunto set my hand and my official seal, at
Berlin in said State, the day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Notary Public for the
State of Connecticut
My commission expires: December 31, 2000
[NOTARIAL SEAL APPEARS HERE]
STATE STREET BANK AND TRUST
COMPANY, Trustee
By: /s/ Xxxxx X. Seemore
----------------------------
Authorized Officer
Signed, sealed and delivered by [CORPORATE SEAL APPEARS HERE]
State Street Bank and Trust
Company in our presence:
/s/ [SIGNATURE APPEARS HERE]
------------------------------
/s/ Xxxxx Xxxxxxx
------------------------------
COMMONWEALTH OF MASSACHUSETTS
BOSTON
COUNTY OF SUFFOLK
On this 28th day of May in the year 1997 before me personally came
Xxxxx X. Seemore to me personally known, who being by me duly sworn did depose
and say that he is an Assistant Vice President of State Street Bank and Trust
Company one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument opposite the execution was affixed thereto pursuant to the
authority of its Board of Directors; that he signed his name thereto by like
authority; and he acknowledged said instrument to be his free act and deed in
his said capacity and the free act and deed of State Street Bank and Trust
Company.
IN WITNESS WHEREOF, I have hereunto set my hand and my official seal,
at Boston in said Commonwealth, the day and year first above written.
/s/ Xxxxx Xxxx
-------------------------------------
Notary Public for the
Commonwealth of Massachusetts
My commission expires: July 12, 2002
[NOTARIAL SEAL APPEARS HERE]
12
Schedule A
(FORM OF BOND)
No. R1 $90,000,000
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, 1997 Series A, due November 21, 1999
FOR VALUE RECEIVED, WESTERN MASSACHUSETTS ELECTRIC COMPANY, a
corporation of the Commonwealth of Massachusetts (hereinafter called the
Company) hereby promises to pay to CITIBANK, N.A., or registered assigns, in
each case as Collateral Agent for the benefit of the several Lenders (as such
terms and all other capitalized terms used but not otherwise defined herein are
defined in the Credit Agreement referred to on the reverse hereof), the
principal sum of $90,000,000 or, if less the aggregate Credit Borrowings (as
defined in the Supplemental Indenture establishing the terms and conditions of
this series of bonds) outstanding on November 21, 1999 or any earlier date on or
as of which the obligations of the several Lenders to make Advances to the
Company under the Credit Agreement shall be terminated and all or any portion of
the unpaid principal of Advances shall become or be declared immediately due and
payable. Credit Borrowings means the aggregate unpaid principal amount of
Advances to the Company outstanding under the Credit Agreement plus the Facility
Fee Obligation and any Excess Interest (as such Facility Fee Obligation and the
Excess Interest are defined in the Supplemental Indenture establishing the terms
and conditions of this series of bonds) together with accrued and unpaid
interest thereon then payable by the Company thereunder.
The Company further agrees to pay interest on said sum on the dates on
which interest payments are payable by the Company to the Lenders from time to
time under the Credit Agreement (each such date on which interest is so payable
by the Company to the Lenders under the Credit Agreement being an interest
payment date applicable to the bonds of the 1997 Series A), until the Company's
obligation in respect of the principal hereof shall be discharged, in amounts
equal to the interest payments payable by the Company to the Lenders pursuant to
the Credit Agreement on such interest payment dates applicable to the bonds of
the 1997 Series A; provided, however, that in no event shall the interest rate
-------- -------
payable on the 1997 Series A Bonds exceed 8.563%. The 1997 Series A Bonds shall
be payable both as to principal and interest at the office or agency of the
Company in the Borough of Manhattan, New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for public and private debts.
The interest on the bonds of the 1997 Series A, whether in temporary
or definitive form, shall be payable without presentation of such bonds; and
only to or upon the written order of the registered holders thereof of record at
the applicable
record date. If, pursuant to the Credit Agreement, the Company's right to obtain
Advances thereunder shall be terminated and all or any portion of the principal
of the Credit Borrowings shall become or be declared immediately due and payable
by the Company, a like principal amount of the bonds of the Series A, together
with all accrued interest thereon, shall without notice or demand of any kind,
become immediately due and payable. In addition, the bonds of the 1997 Series A
shall be repayable in whole or in part according to the terms and provisions
provided in Article III of the Supplemental Indenture establishing the terms and
conditions of this Series of bonds.
Subject to the provisions of the Credit Agreement anything in the
Indenture, this Supplement Indenture or any bond of the 1997 Series A to the
contrary notwithstanding, the bonds of the 1997 Series A shall be deemed paid,
and all obligations of the Company to pay at the times provided herein the
principal of, premium, if any, and interest on the bonds of the 1997 Series A
shall be satisfied and discharged, when and to the extent that the Credit
Borrowings shall have been indefeasibly paid in full in accordance with the
terms thereof and the obligations of the several Lenders to make Advances to the
Company under the Credit Agreement shall have been terminated, it being
understood that the actual indebtedness evidenced by the 1997 Series A Bonds as
of any time shall be limited to the Credit Borrowings as determined at such
time, that at no time shall any claim be made for principal and interest on the
1997 Series A Bonds in excess of the Credit Borrowings as determined at such
time, and that, to the extent that the outstanding principal amount of the 1997
Series A Bonds exceeds such amount, neither the Lenders nor the Agent shall have
any right under, or right to exercise any right granted to the holders of such
excess the 1997 Series A Bonds under the Indenture. Unless the Trustee shall
have received written notice to the contrary from the Company or the Collateral
Agent, the Trustee shall be entitled to assume that the Company has made all
payments required under the Credit Agreement.
Each installment of interest hereon (other than overdue interest)
shall be payable to the person (as defined in the Original Indenture) who shall
be the registered owner of this Bond at the close of business on the record
date, which shall be the day next preceding such interest payment date, or if
such date shall not be a Business Day, the next preceding day which is a
Business Day.
Reference is hereby made to the further provisions of this Bond set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth in this place.
This Bond shall take effect as a sealed instrument.
This Bond shall not become or be valid or obligatory until the
certificate of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, Western Massachusetts Electric Company has caused
this Bond to be executed in its name and on its behalf by its President or a
2
Vice President and its Treasurer or an Assistant Treasurer thereunto duly
authorized, and its corporate seal to be impressed or imprinted hereon.
Dated as of ______________, 1997.
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
----------------------------------
By:
----------------------------------
CERTIFICATE OF AUTHENTICATION
This Bond is one of the First Mortgage Bonds, 1997 Series A due November
21, 1999, described and provided for in the within mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY
By:
----------------------------------
Authorized Signatory
3
[FORM OF BOND]
[REVERSE]
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, 1997 Series A
The Bond is one of a series of Bonds in fully registered form known as the
"First Mortgage Bonds, 1997 Series A, due November 21, 1999" of the Company,
limited to ninety million dollars ($90,000,000) in aggregate principal amount
(except as provided by the terms of (S)2.13 of the Original Indenture mentioned
below), and issued under and secured by a First Mortgage Indenture and Deed of
Trust between the Company and Old Colony Trust Company (now State Street Bank
and Trust Company, successor Trustee) as Trustee, dated as of August 1, 1954
(herein as amended by a First Supplemental Indenture dated as of October 1,
1954, called the Original Indenture, the Original Indenture with all indentures
supplemental thereto, including specifically the Seventy-ninth Supplemental
Indenture dated as of May 1, 1997, being herein generally called the Indenture)
and said Seventy-ninth Supplemental Indenture, an executed counterpart of each
of which is on file at the principal corporate trust office of the Trustee, to
which Indenture reference is hereby made for a description of the nature and
extent of the security, the rights thereunder of the bearers or registered
owners of Bonds issued and to be issued thereunder, the rights, duties, and
immunities thereunder of the Trustee, the rights and obligations thereunder of
the Company, and the terms and conditions upon which said Bonds, and other and
further Bonds of other series, are issued and are to be issued; but neither the
foregoing reference to the Indenture nor any provision of this Bond or of the
Indenture establishing the terms and conditions of the bonds of this Series
shall affect or impair the obligation of the Company, which is absolute,
unconditional and unalterable, to pay the principal of and interest on this Bond
as herein provided.
This Bond, together with all other Bonds of this series, if any, is issued
to evidence and secure the Company's obligations pursuant to a Credit Agreement
dated as of November 21, 1996 (the "Original Agreement") among Northeast
Utilities ("NU"), The Connecticut Light and Power Company ("CL&P"), the Company,
the Lenders and Co-Agents named therein (collectively, the "Lenders") and
Citibank, N.A. as administrative agent, as amended and restated by a First
Amendment and Waiver dated as of May 30, 1997 (the Original Agreement, as so
amended and restated, herein called the "Credit Agreement"), it being understood
that the indebtedness evidenced hereby as of any time shall be limited to the
Credit Borrowings as determined at such time and that at no time shall any claim
be made for principal of and interest on the 1997 Series A, Bonds in excess of
the Credit Borrowings as determined at such time and that, to the extent that
the outstanding principal amount of the 1997 Series A Bonds exceeds such amount,
neither the Lenders nor the Agent shall have any right under, or right to
exercise any right granted to the holders of such excess 1997 Series A Bonds
under, the Indenture.
4
The bonds of 1997 Series A shall be issued to and registered in the name of
CITIBANK, N.A., as Collateral Agent for the benefit of the several Lenders and,
anything in the Mortgage, this Supplemental Indenture or any bond of 1997 Series
A to the contrary notwithstanding the bonds of 1997 Series A shall not be sold,
assigned, pledged or transferred, except to effect the transfer to any successor
Collateral Agent under the Credit Agreement or the Collateral Agency Agreement.
Prior to due presentment for registration of transfer of this Bond, the Company
and the Trustee may deem and treat the registered owner hereof as the absolute
owner hereof, whether or not this Bond be overdue, for the purpose of receiving
payment and for all other purposes, and neither the Company nor the Trustee
shall be affected by any notice to the contrary.
This Bond is exchangeable at the option of the registered owner hereof at
the office or agency of the Company in the Borough of Manhattan, New York, New
York, for an equal principal amount of fully registered bonds of this series of
other authorized denominations, in the manner and on the terms provided in the
Indenture.
In the event that the Credit Agreement is terminated and all Credit
Borrowings shall have been paid in full, all of the then outstanding 1997 Series
A Bonds shall be deemed paid and all obligations of the Company thereunder and
hereunder shall be deemed satisfied and discharged. Except as provided in the
Supplemental Indenture establishing the terms and conditions of this series of
bonds, the 1997 Series A Bonds shall not be redeemable.
The Indenture contains provisions permitting the Company and the Trustee
with the consent of the bearers or registered owners of not less than seventy
percentum (70%) in principal amount of the Bonds at the time outstanding (except
Bonds held by or for the benefit of the Company), including, if more than one
Series of Bonds shall be at the time outstanding, not less than seventy
percentum (70%) in principal amount of the Bonds (except Bonds held by or for
the benefit of the Company) of each series affected differently from those of
other series, to effect by supplemental indenture modifications or alterations
of the Indenture and of the rights and obligations of the Company and of the
bearers and registered owners of the Bonds; but no such modification or
alteration shall be made which, without the written approval or consent of the
registered owner hereof, will extend the maturity hereof or reduce the rate or
extend the time for payment of interest hereon or change the amount of the
principal hereof or of any premium payable on the redemption hereof, or which
will reduce the percentage of the principal amount of Bonds or the percentage of
the principal amount of Bonds of any one series required for the adoption of the
modifications or alterations as aforesaid, or authorize the creation by the
Company, except as expressly authorized by the Indenture, of any mortgage,
pledge, or lien upon the property subjected thereto ranking prior to or on an
equality with the lien thereof.
Each initial and successive holder of any bond of the 1997 Series A, solely
by virtue of its acquisition thereof, shall have and be deemed to have given
written
5
consent, without the need for any further action or consent by such holder, to
the following amendment to the Original Indenture, and each said holder hereby
authorizes the Trustee, on behalf of the holder, to waive any notice
contemplated by the Indenture and to give written consent to such amendment. The
amendment modifies (S)3.04(h) of the Original Indenture to read as follows:
(h) in the event that (i) the total annual interest requirements of
the Bonds then to be issued under this Section exceed the total annual
interest requirements of the Bonds in respect of the payment, retirement,
redemption, Cancellation or surrender to the Trustee for Cancellation of
which said Bonds are then to be issued and (ii) such Bonds in respect of
the payment, retirement, redemption, Cancellation or surrender to the
Trustee for Cancellation of which said Bonds are then to be issued are then
Outstanding and mature more than two years from the date of the Officers'
Certificate contemplated by paragraph (d) of this Section, an Earnings
Certificate.
If a default as defined in the Indenture shall occur, the principal of this
Bond may become or be declared due and payable before maturity, in the manner
and with the effect provided in the Indenture; but any default and the
consequences thereof may be waived by certain percentages of the bearers or
registered owners of Bonds, all as provided in the Indenture.
If the date for making any payment or the last date for performance of any
act or the exercise of any right, as provided in the Supplemental Indenture
establishing the terms and series of the bonds of this 1997 Series A, is not a
Business Day, such payment may be made or act performed or right exercised on
the next succeeding Business Day, unless otherwise provided herein, with the
same force and effect as if done on the nominal date provided in the
Supplemental Indenture establishing the terms and series of the bonds of this
1997 Series A.
No recourse shall be had for the payment of the principal of or the
interest on this Bond, or for any claim based hereon or otherwise in respect
hereof, or of the Indenture against any incorporator, stockholder, director, or
officer, past, present, or future, as such, of the Company or of any predecessor
or successor corporation under any constitution, statute, or rule of law, or by
the enforcement of any assessment, penalty, or otherwise, all such liability
being waived and released by the holder hereof by the acceptance of this Bond.
6
Schedule B
NONE
7
Schedule C
Detail of Filing and Recording of First Mortgage Indenture and Deed Trust
dated as of August 1, 1954 in Massachusetts.
Date
Page Recorded Doc. No. Book
---- -------- -------- ----
Registry of Deeds
County of Berkshire
Middle District 8/18/54 22357 614 395
Northern District 8/18/54 2684 512 97
Southern District 8/18/54 None Assigned 310 379
County of Franklin 8/18/54 3501 1007 2
County of Hampshire 8/18/54 5070 1175 388
County of Hampden 8/15/54 20682 2331 1
Registry District of Land Court
County of Berkshire
Xxxxxx Xxxxxxxx 00/0/00 0000-X
Xxxxxxxx Xxxxxxxx 11/5/68 3115
County of Hampshire 8/18/54 822
County of Hampden 8/19/54 18800
Office of Town Clerk, 3/22/67 6917 None Assigned
West Springfield*
*Confirmatory Indenture of 8/18/54 None Assigned 54 121
Mortgage filed
Secretary of the Commonwealth 442315
8
