-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Eo46NBEKRzZBXvdNzXpFzgSONbQ0mJB42EvanROXuieRKJSgJgbbuXYpk6Q42/Aq OOx15A0QS8n/OgtCaygtPA== 0000071297-96-000050.txt : 19960726 0000071297-96-000050.hdr.sgml : 19960726 ACCESSION NUMBER: 0000071297-96-000050 CONFORMED SUBMISSION TYPE: 35-CERT PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960725 SROS: BSE SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW ENGLAND ELECTRIC SYSTEM CENTRAL INDEX KEY: 0000071297 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 041663060 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 35-CERT SEC ACT: 1935 Act SEC FILE NUMBER: 070-08675 FILM NUMBER: 96598821 BUSINESS ADDRESS: STREET 1: 25 RESEARCH DR CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5083669011 35-CERT 1 File No. 70-8675 SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 CERTIFICATE OF NOTIFICATION Pursuant to Rule 24(a) under the Public Utility Holding Company Act of 1935 Filed by NEW ENGLAND ELECTRIC SYSTEM NEW ENGLAND POWER COMPANY MASSACHUSETTS ELECTRIC COMPANY It is hereby certified that on July 16, 1996, Massachusetts Electric Company issued its guaranty of $28 million aggregate principal amount of Massachusetts Industrial Finance Agency Electric Utility Revenue Bonds (Nantucket Electric Company Project - 1996 Series A) as described in Form U-1 and amendments thereto, File No. 70-8675, and in the Order of the Securities and Exchange Commission with respect thereto dated December 27, 1995 (HCAR No. 26439). Such transaction has been carried out, in accordance with the terms and conditions of and for the purpose represented in said Form U-1 and the Order of the Commission. The required "past tense" opinion of counsel is attached hereto as Exhibit I. SIGNATURE --------- Pursuant to the requirements of the Public Utility Holding Company Act of 1935, each of the undersigned companies has duly caused this Certificate of Notification (Commission's File No. 70-8675) to be signed on its behalf by the undersigned officers thereunto duly authorized. NEW ENGLAND ELECTRIC SYSTEM s/Cheryl A. LaFleur By: _________________________ Cheryl A. LaFleur Vice President and Secretary MASSACHUSETTS ELECTRIC COMPANY s/Lawrence J. Reilly By: _________________________ Lawrence J. Reilly President NEW ENGLAND POWER COMPANY s/John G. Cochrane By: _________________________ John G. Cochrane Assistant Treasurer Date: July 25, 1996 The name "New England Electric System" means the trustee or trustees for the time being (as trustee or trustees but not personally) under an agreement and declaration of trust dated January 2, 1926, as amended, which is hereby referred to, and a copy of which as amended has been filed with the Secretary of The Commonwealth of Massachusetts. Any agreement, obligation or liability made, entered into or incurred by or on behalf of New England Electric System binds only its trust estate, and no shareholder, director, trustee, officer or agent thereof assumes or shall be held to any liability therefor. EX-99 2 EXHIBIT INDEX Exhibit No. Description Page - ----------- ----------- ---- B-3 Form of Massachusetts Electric Filed herewith Company Guaranty I Past Tense Opinion of Counsel Filed herewith EX-99 3 EXHIBIT B-3 Exhibit B-3 GUARANTY --------- For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby: absolutely and unconditionally guarantees to Fleet National Bank, as Trustee (the "Trustee") under the Loan and Trust Agreement dated as of July 1, 1996 (the "Agreement") among the Massachusetts Industrial Finance Agency (the "Issuer"), Nantucket Electric Company (the "Borrower") and the Trustee, for the benefit of the Bondowners, (as defined in the Agreement), the full and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of the principal of, premium, if any, and interest on the Bonds issued pursuant to the Agreement (the "Indebtedness"). 1. The undersigned represents and warrants that (a) the undersigned is a corporation duly organized and existing in good standing under the laws of The Commonwealth of Massachusetts and has full power and authority to make and deliver this Guaranty; (b) the execution, delivery and performance of this Guaranty by the undersigned have been duly authorized by all necessary action of its directors and do not and will not violate the provisions of, or constitute a default under, any presently applicable law or its articles of incorporation or bylaws or any agreement presently binding on it; (c) this Guaranty has been duly executed and delivered by an authorized officer of the undersigned and constitutes its lawful, binding and legally enforceable obligation; and (d) the authorization, execution, delivery and performance of this Guaranty have been approved by the Massachusetts Department of Public Utilities and the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935 and no other consent or approval by any federal, state or local regulatory body or administrative agency is required. 2. No act or thing need occur to establish the liability of the undersigned hereunder, and no act or thing, except full payment and discharge of all Indebtedness, shall in any way exonerate the undersigned hereunder or modify, reduce, limit or release the liability of the undersigned hereunder. This is an absolute, unconditional and continuing guaranty of payment of the Indebtedness. The dissolution or adjudication of bankruptcy of the undersigned shall not revoke this Guaranty. 3. The undersigned represents and warrants that the undersigned has an economic interest in Borrower and that this Guaranty is given for a valid corporate purpose. This Guaranty shall be effective and enforceable by Trustee without regard to the receipt, nature or value of any such benefits. 4. If the undersigned shall be dissolved or shall be or become insolvent (however defined), then Trustee shall have the right to declare the full amount of all Indebtedness due and payable, whether by acceleration or otherwise, due from the undersigned. If the undersigned voluntarily commences or there is commenced involuntarily against the undersigned (which is consented to by the undersigned or remains undismissed for 90 days) a case under the United States Bankruptcy Code, then the full amount of all Indebtedness due and payable, whether by acceleration or otherwise, shall be immediately due and payable without demand or notice thereof. 5. The undersigned will not exercise or enforce any right of contribution, reimbursement, recourse or subrogation available to the undersigned as to any Indebtedness, or against any person liable therefor, or as to any collateral security therefor, unless and until all Indebtedness shall have been fully paid and discharged. 6. The undersigned will pay or reimburse the Trustee for all costs and expenses (including reasonable attorneys' fees and legal expenses) incurred by the Trustee in connection with the protection, defense or enforcement of this Guaranty in any litigation or bankruptcy or insolvency proceedings. 7. a) So long as any Indebtedness is outstanding, the undersigned will furnish to each nationally recognized municipal securities information repository (each a "NRMSIR") that is at the time recognized as such by the Securities and Exchange Commission (the "SEC"), to each state information depository, if any, of the Commonwealth of Massachusetts (the "SID"), and the Bond Insurer (as defined in the Agreement), a copy of the undersigned's Annual Report on Form 10-K for each fiscal year filed with the SEC (or any successor form adopted by the SEC) containing audited financial statements of the undersigned (or attaching thereto the annual report to shareholders if such information is incorporated by reference in such Form 10-K from such annual report), in each case not less than 120 days after the end of each fiscal year of the undersigned. In the event that the undersigned no longer files such reports with the SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"), it will deliver to each NRMSIR, the SID and the Bond Insurer (as defined in the Agreement), within the time set forth in this paragraph, a copy of its audited financial statements, prepared in accordance with generally accepted accounting principles and operating data (within the meaning of Rule 15c2-12 (the "Rule"), adopted by the SEC under the 1934 Act of the type incorporated by reference in the Official Statement dated June 26, 1996 with respect to the Bonds. The deliveries described in this paragraph may be accomplished by delivery of an instrument incorporating by reference material on file with the SEC. (b) The undersigned will, or will cause the Borrower to, deliver to the Trustee, the Bond Insurer, each NRMSIR, and the SID, in a timely manner, notice of the occurrence of any of the following events with respect to the Bonds, if material: (i) principal and interest payment delinquencies; (ii) nonpayment related defaults; (iii) unscheduled draws on debt service reserves, if any, reflecting financial difficulties; (iv) unscheduled draws on credit enhancements, if any, reflecting financial difficulties; (v) substitution of credit or liquidity providers, if any, or their failure to perform; (vi) adverse tax opinions or events affecting the tax-exempt status of the Bonds; (vii) modifications to rights of bondholders; (viii) bond calls; (ix) defeasances; (x) releases, substitution or sale of property securing payment of the Bonds; or (xi) rating changes. (c) The undersigned will give to the Trustee, the Bond Insurer, each NRMSIR, and the SID, in a timely manner, notice of any failure by the undersigned to provide any information required pursuant to subsection (a) above within the time limit required therein. (d) Any breach by the undersigned of this Paragraph 7 shall not, in and of itself, be a breach of this Guaranty or an Event of Default with respect to the Bonds. The obligations set forth in this Paragraph 7 are solely those of the undersigned and the Borrower, and may be enforced by any Bondholder by action for specific performance only. (e) The undersigned's obligation to comply with this Paragraph 7 shall continue so long as the undersigned is obligated under this Guaranty. The undersigned's obligations under this Paragraph 7 shall be suspended upon the primary offering of the Bonds in any remarketing exempt from the provisions of the Rule by virtue of paragraph (d) of the Rule. (f) This Paragraph 7 may be modified by the undersigned to the extent necessary as a result of change in legal requirements or change in the nature of the Borrower or the undersigned; provided that any such modification will be done in a manner consistent with the Rule and will not, in the opinion of the Trustee (who may rely conclusively on an opinion of counsel), materially impair the interests of the Bond owners. 8. The Trustee may enter into transactions resulting in the creation or continuance of Indebtedness and may otherwise agree, consent to, or suffer the creation or continuance of any Indebtedness, without any consent or approval by the undersigned and without any prior or subsequent notice to the undersigned. The liability of the undersigned shall not be affected or impaired by any of the following acts or things (which the Trustee is expressly authorized to do by the undersigned, omit or suffer from time to time, both before and after revocation of this Guaranty, without consent or approval by or notice to the undersigned): (a) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all Indebtedness; (b) one or more extensions or renewals of Indebtedness (whether or not for longer than the original period) or any modification of the interest rates, maturities or other contractual terms applicable to any Indebtedness; (c) any waiver or indulgence granted to Borrower, any delay or lack of diligence in the enforcement of Indebtedness, or any failure to institute proceedings, file a claim, give any required notices or otherwise protect any Indebtedness; (d) any full or partial release of, compromise or settlement with, or agreement not to sue, Borrower, Issuer or any guarantor or other person liable in respect of any Indebtedness; (e) any release, surrender, cancellation or other discharge of any evidence of Indebtedness or the acceptance of any instrument in renewal or substitution therefor; (f) any failure to obtain collateral security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to preserve, protect, insure, care for, exercise or enforce any collateral security; or any modification, alteration, substitution, exchange, surrender, cancellation, termination, release or other change, impairment, limitation, loss or discharge of any collateral security; (g) any collection, sale, lease or disposition of, or any other foreclosure or enforcement of or realization on, any collateral security; (h) any assignment, pledge or other transfer of any Indebtedness or any evidence thereof; (i) any manner, order or method of application of any payments or credits upon Indebtedness; (j) any election by the Trustee under Section 1111(b) of the United States Bankruptcy Code. The undersigned waives any and all defenses and discharges available to a surety, guarantor, or accommodation co-obligor. 9. The undersigned waives any and all defenses, claims, setoffs, and discharges of Borrower or Issuer, or any other obligor, pertaining to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the undersigned will not assert, plead or enforce against the Trustee any defense of waiver, release, discharge in bankruptcy, statute of limitations, res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to Borrower or Issuer or any other person liable in respect of any Indebtedness, or any setoff available against the Trustee to Borrower or Issuer or any other such person, whether or not on account of a related transaction. The undersigned expressly agrees that the undersigned shall be and remain liable for any deficiency remaining after foreclosure of any mortgage or security interest securing Indebtedness, whether or not the liability of Borrower or Issuer or any other obligor for such deficiency is discharged pursuant to statute or judicial decision. The liability of the undersigned shall not be affected or impaired by any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar event or proceeding affecting Borrower or Issuer or any of their respective assets. The undersigned will not assert, plead or enforce against the Trustee any claim, defense or setoff available to the undersigned against Borrower or Issuer. 10. The undersigned waives presentment, demand for payment, notice of dishonor or nonpayment, and protest of any instrument evidencing Indebtedness. The Trustee shall not be required first to resort for payment of the Indebtedness to Borrower or Issuer or other persons, or their properties, or first to enforce, realize upon or exhaust any collateral security for Indebtedness, before enforcing this Guaranty. 11. If any payment applied by the Trustee to Indebtedness is thereafter set aside, recovered, rescinded or required to be returned for any reason (including, without limitation, the bankruptcy, insolvency or reorganization of Borrower or Issuer or any other obligor), the Indebtedness to which such payment was applied shall for the purpose of this Guaranty be deemed to have continued in existence, notwithstanding such application, and this Guaranty shall be enforceable as to such Indebtedness as fully as if such application had never been made. 12. The liability of the undersigned under this Guaranty is in addition to and shall be cumulative with all other liabilities of the undersigned to the Trustee as guarantor, surety, endorser, accommodation co-obligor or otherwise of any Indebtedness or obligation of Borrower or Issuer, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary. 13. This Guaranty shall be effective upon delivery to the Trustee, without further act, condition or acceptance by the Trustee, shall be binding upon the undersigned and the successors and assigns of the undersigned and shall inure to the benefit of the Trustee. Any invalidity or unenforceability of any provision or application of this Guaranty shall not affect other lawful provisions and application hereof, and to this end the provisions of this Guaranty are declared to be severable. This Guaranty may not be waived, modified, amended, terminated, released or otherwise changed except by a writing signed by the undersigned and the Trustee. This Guaranty shall be governed by the laws of The Commonwealth of Massachusetts. The undersigned waives notice of the Trustee's acceptance hereof and waives the right to trial by jury in any action based on or pertaining to this Guaranty. IN WITNESS WHEREOF, this Guaranty has been duly executed on behalf of the undersigned by its duly authorized officer as of this 1st day of July, 1996. MASSACHUSETTS ELECTRIC COMPANY By: __________________________ Title: Treasurer COMMONWEALTH OF MASSACHUSETTS) COUNTY OF WORCESTER) The foregoing instrument was acknowledged before me this ____ day of July, 1996, by Michael E. Jesanis, the Treasurer of Massachusetts Electric Company, a Massachusetts corporation, on behalf of the corporation. _____________________________ Notary Public: My Commission expires: EX-5 4 EXHIBIT I EXHIBIT I 25 Research Drive, Westborough, Massachusetts 01582 =================================================== July 25, 1996 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: New England Electric System New England Power Company Massachusetts Electric Company Commission File No. 70-8675 Dear Ladies and Gentlemen: Form U-1 and amendments thereto filed in the above proceeding were permitted to become effective by the Commission's Order dated December 27, 1995. As counsel for the above named companies, we have reviewed the following actions taken subsequent to our opinions dated December 26 and December 28, 1995, and April 9, 1996, to carry out the following transaction described in the statement: On July 16, 1996, Massachusetts Electric Company issued its guaranty of $28 million aggregate principal amount of Massachusetts Industrial Finance Agency Electric Utility Revenue Bonds (Nantucket Electric Company Project - 1996 Series A) (the MIFA Bonds) in favor of Fleet National Bank, as Trustee for the MIFA Bonds. We have reviewed the above mentioned opinions, which were filed by amendment as Exhibits F and F-1, respectively, to the statement on Form U-1 and the Certificate of Notification dated April 9, 1996, in the above proceeding, and we hereby confirm the various opinions and statements contained therein. It is our opinion that: (a) the foregoing transaction has been carried out in accordance with the Application/Declaration; (b) all State laws applicable to such transaction have been complied with; and (c) the consummation of the transaction does not violate the legal rights of the holders of any securities issued by NEES or any associate company. Very truly yours, s/Robert King Wulff Robert King Wulff Corporation Counsel s/Kirk L. Ramsauer Kirk L. Ramsauer Associate General Counsel -----END PRIVACY-ENHANCED MESSAGE-----