Exhibit 1
===========================================================================
$___________________________
THE UNITED ILLUMINATING COMPANY
UNDERWRITING AGREEMENT
Seabrook 1 Secured Lease Obligation Bonds
_____________________________, 199_
===========================================================================
______________, 199_
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Each of the undersigned, The United Illuminating Company (the
"Company") and Meridian Trust Company (in its individual capacity, "Meridian"),
not in its individual capacity but solely in its capacity as Owner Trustee (the
"Owner Trustee") under the Trust Agreement, dated as of August 1, 1990 relating
to the transactions hereinafter described (the "Trust Agreement"), hereby
confirms its agreement with you, as underwriters (the "Underwriters"), as
follows:
SECTION 1. INTRODUCTION. The Owner Trustee proposes to issue and
sell $___________ in aggregate principal amount of Seabrook 1 Secured Lease
Obligation Bonds as follows: $__________ _____% Series due ___________, ____
(the "Series __ Bonds"); and $___________ _____% Series due ____________, ____
(the "Series ____ Bonds"); (the Series ____ Bonds and Series ____ Bonds being
collectively referred to herein as the "Bonds") registered under the
registration statement referred to in Section 4. The Bonds will be issued under
the Indenture of Mortgage and Deed of Trust, dated as of August 1, 1990, as
supplemented by Supplemental Indenture No. 2 thereto, dated as of ___________,
199_ (such Indenture of Mortgage and Deed of Trust, as so amended and
supplemented, being hereinafter referred to as the "Indenture"), among the
Company, The Bank of New York (the "Indenture Trustee") and the Owner Trustee.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Prospectus (as hereinafter defined).
SECTION 2. PURCHASE AND SALE. On the basis of the representations and
warranties, and subject to the terms and conditions, set forth in this agreement
(the "Underwriting Agreement"), the Underwriters shall purchase from the Owner
Trustee, [severally and not jointly,] and the Owner Trustee shall issue and sell
to the Underwriters, $__________ aggregate principal amount of the Series ____
Bonds at a price of __% of the principal amount thereof and $__________
aggregate principal amount of the Series ____ Bonds at a price of ____% of the
principal amount thereof. Each Underwriter shall, severally and not jointly,
purchase the respective principal amount of Series ____ Bonds and Series ____
Bonds set forth opposite its name on Schedule I hereto. The Company and the
Owner Trustee are advised by the Underwriters that the Underwriters propose to
make a public offering of the Bonds as soon after this Underwriting Agreement is
entered into as in the Underwriters' judgment is advisable.
Concurrently with the issuance and sale of the Bonds, the Owner
Trustee will pay, with funds provided by the Owner Participant, to the
Underwriters in immediately available funds an underwriting commission of _____%
($__________) in respect of the Series ____ Bonds and _____% ($__________) in
respect of the Series ____ Bonds. The Company acknowledges that the fees and
expenses of counsel to the Underwriters shall be included on the invoice of
transaction expenses to be delivered by the Owner Trustee on or prior to the
Closing Date (as hereinafter defined), pursuant to Sections 5(a)(iii) and 5(b)
of the Refunding Agreement dated as of ______ __, 199_ among the Owner
Participant, the Owner Trustee, the Indenture Trustee and the Company (the
"Refunding Agreement"), and to be paid by the Owner Trustee with funds provided
by the Owner Participant and from proceeds from the sale of the Bonds.
SECTION 3. DESCRIPTION OF BONDS. The Bonds shall be issued under and
pursuant to the Indenture and shall be held in book-entry form through the
facilities of the Depository Trust Company. The Bonds and the Indenture shall
have the terms and provisions described in the Prospectus, provided that,
subsequent to the date hereof and prior to the Closing Date, the form of
Indenture (including Supplemental Indenture No. 2 thereto) may be amended by
mutual agreement among the Company, the Owner Trustee, the Indenture Trustee and
the Underwriters.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OWNER
TRUSTEE. (a) The Company represents and warrants to the Underwriters that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(Registration Statement No.______________), including a prospectus,
pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Bonds and has filed with
- 2 -
or shall promptly hereafter file with the Commission a prospectus
supplement (the "Prospectus Supplement") specifying the terms of the Bonds
and the plan of distribution thereof pursuant to Rule 424 under the
Securities Act ("Rule 424"); and as used herein, (i) the term "Registration
Statement" means the registration statement, including the exhibits
thereto, as amended to the date of this Agreement, (ii) the term "Basic
Prospectus" means the prospectus included in the Registration Statement,
(iii) the term "Prospectus" means the Basic Prospectus as supplemented by
the Prospectus Supplement, (iv) the term "preliminary prospectus" means any
preliminary prospectus supplement specifically relating to the Bonds,
together with the Basic Prospectus, and (v) the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents incorporated by reference therein and the terms "supplement,"
"amendment" and "amend" shall include the documents, if any, deemed to be
incorporated by reference in the Prospectus that are filed subsequent to
the execution and delivery of this Agreement by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(ii) The Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(iii) (A) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (B)
the Registration Statement, when it became effective, did not contain, and,
as amended or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (C) the Registration Statement and the Prospectus comply, and,
as amended or supplemented, if applicable, will comply, in all material
respects with the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the respective applicable rules
and regulations of the Commission thereunder and (D) the Prospectus does
not contain, and, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this subsection (iii) do not
apply (x) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any
- 3 -
Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein or (y) to that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Indenture Trustee.
(iv) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Connecticut, has due corporate power and authority to own and operate its
property and to conduct its business as described in the Prospectus, to
execute and deliver, and perform its obligations under, this Underwriting
Agreement, the Indenture, the Refunding Agreement, the Granting Clause
Documents (as defined in the Indenture and, as supplemented or amended as
of the Closing Date, hereinafter the "Granting Clause Documents"), and to
consummate the transactions herein and therein contemplated; and the
Company is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(v) Each subsidiary of the Company has been duly incorporated,
is validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation, has the power and authority to own its
property and to conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(vi) This Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(vii) The Company and its subsidiaries (x) are not in violation of
their respective certificates of incorporation or bylaws, (y) are not in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in the Indenture, the Refunding Agreement
or the Granting Clause Documents, and (z) are not in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any other contract, agreement or other instrument
under which any of them may be bound, the effect of which, in the case of
this clause (z), would have a material adverse effect on the Company and
its subsidiaries, taken as a whole; the execution and delivery by the
Company of, and the
- 4 -
performance by the Company of its obligations under, this Agreement, the
Indenture, the Refunding Agreement and the Granting Clause Documents and
the consummation of the transactions herein and therein contemplated, will
not conflict with, result in a breach of or constitute a default under any
provision of (A) applicable law, (B) the certificate of incorporation or
bylaws of the Company, (C) any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or (D) any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company
or any subsidiary; and, except for the approval of the Connecticut
Department of Public Utility Control, no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the execution and delivery of, and the performance of its
obligations under, this Underwriting Agreement, the Indenture, the
Refunding Agreement or the Granting Clause Documents, in each case by the
Company, or the consummation of the transactions herein or therein
contemplated, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the issuance of the Bonds.
(viii) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(ix) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(xi) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
- 5 -
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, be reasonably expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xii) In the ordinary course of its business, the Company conducts
a periodic review of the effect of Environmental Laws on the business,
operations, and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xiii) Each of (A) the Participation Agreement, (B) the Refunding
Agreement, (C) the Indenture, (D) the Granting Clause Documents and (E)
this Underwriting Agreement (each of the documents and instruments
described in clauses (A) through (D) above, as they each may be amended or
supplemented as of the Closing Date, being collectively referred to herein
as the "Transaction Documents") has been, or (in the case of the
Transaction Documents other than the Refunding Agreement) as of the Closing
Date will have been, duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by each
other party thereto, each constitutes, or as of the Closing Date will
constitute, a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws affecting the enforcement of creditors' rights generally
and with respect to Section 10 of this Underwriting Agreement, by any
principles of public policy that may limit the right to enforce the
indemnification provisions contained therein.
(b) The Owner Trustee represents and warrants to the Underwriter
that:
- 6 -
(i) Meridian is a trust company duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania and
has all requisite corporate power and authority to enter into and perform
its obligations under the Trust Agreement, and the Owner Trustee has all
power and authority to enter into and perform its obligations under the
Indenture, the Bonds, the Refunding Agreement and this Underwriting
Agreement.
(ii) Each of the Transaction Documents, the Trust Agreement, this
Underwriting Agreement and the Bonds has been or (in the case of
Transaction Documents other than the Refunding Agreement) as of the Closing
Date, will have been duly authorized, executed and delivered by the Owner
Trustee (or in the case of the Trust Agreement, Meridian) and, assuming the
due authorization, execution, authentication and delivery thereof by each
other party thereto, constitutes, or as of the Closing Date will
constitute, a legal, valid and binding obligation of the Owner Trustee (or
in the case of the Trust Agreement, Meridian) enforceable against the Owner
Trustee (or in the case of the Trust Agreement, Meridian) in accordance
with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization and other similar laws affecting the
enforcement of creditors' rights generally and, with respect to Section 10
of this Underwriting Agreement, by any principles of public policy that may
limit the right to enforce the indemnification provisions contained
therein.
(iii) No approval, authorization, consent or other order of any
governmental body under any federal law or regulation or any law or
regulation of New York[, New Hampshire] or Pennsylvania governing the trust
powers of Meridian or the Owner Trustee is required to permit the issuance
and sale of the Bonds by the Owner Trustee to the Underwriters pursuant to
this Underwriting Agreement or the execution of this Underwriting Agreement
or the Indenture by the Owner Trustee.
(iv) The issuance and sale by the Owner Trustee of the Bonds and
the execution, delivery and performance by the Owner Trustee of this
Underwriting Agreement and the Indenture will not (a) violate any provision
of Meridian's Articles of Incorporation or By-Laws or (b) violate any
provision of any federal law or regulation or any law or regulation of New
York[, New Hampshire] or Pennsylvania governing the trust powers of
Meridian or the Owner Trustee applicable to the Owner Trustee.
(v) There are no legal or governmental proceedings pending or
threatened to which Meridian or, to the actual knowledge of an Officer of
the trust department of Meridian, the Owner Trustee is subject that are
required
- 7 -
to be described in the Registration Statement or the Prospectus and are not
so described.
SECTION 5. OFFERING. The Company and the Owner Trustee are advised by
the Underwriters that the Bonds are to be offered to the public at the
respective public offering prices set forth below (expressed as percentages of
the principal amount of the Bonds). The Bonds may also be offered to certain
dealers selected by the Underwriters at prices that represent concessions from
the public offering prices (expressed as percentages of the principal amount of
the Bonds) as indicated below. The Underwriters may allow, and such dealers may
reallow, concessions to certain other dealers not in excess of the amounts
indicated below (expressed as percentages of the principal amount of the Bonds):
Public Offering
Price Concession Reallowance
--------------- ---------- -----------
Per Series ___ Bonds ____% ____% ____%
Per Series ___ Bonds ____% ____% ____%
SECTION 6. TIME AND PLACE OF CLOSING. Delivery of the Bonds shall be
made to the Underwriters through the facilities of the Depositary Trust Company,
against payment therefor by the Underwriters to, or upon the order of, the Owner
Trustee, such payment to be made by check or checks, payable to, or upon the
order of, the Owner Trustee, in immediately available funds at the offices of
▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New
York time, on ___________, 199_, or at such other time on the same or such other
day as shall be agreed upon by the Company and the Underwriters. The hour and
date of such delivery and payment are herein called the "Closing Date."
SECTION 7. COVENANTS OF THE COMPANY AND THE OWNER TRUSTEE. Each of the
Company and the Owner Trustee, severally as to itself only, covenants and agrees
with the Underwriters that:
(a) The Company will deliver to each of the Underwriters, without
charge, a copy of the Registration Statement including exhibits thereto and
documents incorporated by reference therein certified by an officer of the
Company to be in the form filed with the Commission and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto as any Underwriter may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, the Company will furnish to the Underwriters a copy of each such
proposed amendment or supplement
- 8 -
for their review a reasonable amount of time prior to the filing thereof.
(c) If, during such period after the first date of the public
offering of the Bonds as, in the opinion of counsel for the Underwriters, a
prospectus relating to the Bonds is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with law, the Company, at its own
expense, will forthwith prepare, file with the Commission and furnish to the
Underwriters either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended and supplemented, will comply
with law.
(d) The Company and the Owner Trustee will endeavor to qualify the
Bonds for offer and sale under the securities or "blue-sky" laws of such
jurisdictions as the Underwriters shall reasonably request and will maintain
such qualification for as long as the Underwriters shall reasonably request.
(e) The Company will make generally available to its security
holders, as soon as practicable, an earning statement covering a period of at
least twelve months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities Act, which
earning statement shall be in such form, and be made generally available to
security holders in such a manner, as to meet the requirements of the last
paragraph of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(f) The Company will cause the Prospectus to be filed with the
Commission pursuant to Rule 424(b) within the time period required by such rule.
The Company will advise the Underwriters promptly of the issuance of any stop
order under the Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company shall have received
notice. The Company will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof if issued.
(g) As between the Company and the Underwriters, the Company will,
except as herein provided, pay or cause to be paid all expenses and taxes
(except transfer taxes) in connection with (i) the preparation and filing of the
Registration Statement, (ii) the printing, issuance and delivery of the Bonds
and the preparation, execution, printing and recordation of the
- 9 -
Indenture, (iii) legal fees and expenses relating to the qualification of the
Bonds under the "blue-sky" laws of various jurisdictions, (iv) the printing and
delivery to the Underwriters of reasonable quantities of copies of the
Registration Statement, the preliminary prospectus and the Prospectus and the
preparation of the Preliminary Blue Sky Survey, (v) fees of the rating agencies
in connection with the rating of the Bonds, (vi) fees (if any) of the National
Association of Securities Dealers, Inc. in connection with its review of the
terms of the offering and (vii) the procurement by the Underwriters of
immediately available funds for the payment of the purchase price for the Bonds
as required by Section 6 of this Underwriting Agreement. Nothing in this Section
7(g) shall be deemed to be in derogation of the Owner Trustee's rights and
obligations pursuant to Section 5 of the Refunding Agreement.
SECTION 8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject to the following
conditions:
(a) The Registration Statement shall be effective and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for such purpose shall be pending before or threatened by the
Commission; and the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the time period required by such rule.
(b) Subsequent to the date of this Underwriting Agreement and prior
to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus that, in
the judgment of the Underwriters, is material and adverse and that makes it, in
the judgment of the Underwriters, impracticable to market the Bonds on the terms
and in the manner contemplated in the Prospectus.
(c) The Underwriters shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in subsection (b) of this Section 8. Such
certificate will also provide that the representations and warranties of the
Company contained herein are true and correct as of the Closing Date; that the
Company has performed and complied with all agreements and conditions in this
Underwriting Agreement and the Indenture to be performed or complied with by the
Company at or prior to the Closing Date; and that no events of the type
specified in subsections (k) or (l) of this Section 8 have occurred. The officer
making such certificate may rely upon the best of his knowledge as to threatened
proceedings.
(d) On the Closing Date, the Underwriters shall have received from
▇▇▇▇▇▇ & ▇▇▇▇, as counsel to the Company, ▇▇▇▇ &
- 10 -
Priest LLP, as special counsel to the Company, [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Branch,
Professional Association,] as New Hampshire counsel to the Company, Haight,
Gardner, Poor & ▇▇▇▇▇▇, as counsel to the Owner Trustee, and ▇▇▇▇▇▇▇ & ▇▇▇, as
Pennsylvania counsel to the Owner Trustee, opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A, B, C, D and E hereto,
respectively, with such changes therein as may be agreed upon by the Company and
the Underwriters.
(e) On the Closing Date, the Underwriters shall have received from
their counsel, Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, an opinion, dated the
Closing Date, substantially in the form set forth in Exhibit F hereto.
(f) The opinions of counsel (other than the opinions of the Owner
Participant's Tax Counsel, NRC Counsel and New Hampshire Counsel) required to be
delivered on the Closing Date pursuant to Section 10(c) of the Participation
Agreement as a condition precedent to a refunding and Section 4(a) of the
Refunding Agreement as a condition precedent to the issuance and delivery of the
Bonds shall also be addressed and delivered to the Underwriters.
(g) The opinion of counsel required to be delivered to the Indenture
Trustee pursuant to Section 2.05(a)(3) of the Indenture shall also be addressed
and delivered to the Underwriters.
(h) The Underwriters shall have received, on or prior to the date of
this Underwriting Agreement, a letter dated the Closing Date in form and
substance satisfactory to the Underwriters, from Coopers & ▇▇▇▇▇▇▇ LLP,
independent public accountants, which shall contain statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(i) On the Closing Date, the Underwriters shall have received from
Coopers & ▇▇▇▇▇▇▇ LLP a letter, dated the Closing Date, confirming, as of a date
not more than five days prior to the Closing Date, the statements contained in
the letter delivered pursuant to Section 8(h) hereof.
(j) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date and signed by an authorized signatory of the
Owner Trustee, to the effect that the representations and warranties of the
Owner Trustee contained herein are true and correct, and the Owner Trustee has
performed and complied with all agreements and conditions in this Underwriting
Agreement, the Refunding Agreement and the Indenture to be performed or complied
with by the Owner Trustee at or prior to the Closing Date.
- 11 -
(k) Between the date hereof and the Closing Date, no Indenture Event
of Default (or an event that, with the giving of notice or the passage of time
or both, would constitute an Indenture Event of Default) under the Indenture
shall have occurred.
(l) Subsequent to the execution and delivery of this Underwriting
Agreement and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given for (A) any intended or
potential downgrading or (B) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded the Bonds or
any of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(m) The Bonds shall, upon delivery to the Underwriters in accordance
with this Underwriting Agreement, be secured by a lien on and security interest
in the undivided ownership interest of the Owner Trustee in Unit 1 and an
assignment of basic rental payments and certain other amounts payable by the
Company under the Lease in accordance with the Transaction Documents; the
recordations and filings referred to in Section 3(e) of the Refunding Agreement
shall have been made; and the conditions precedent to the issuance of the Bonds
set forth in the Participation Agreement (including, without limitation,
Sections 2 and 10(c) thereof) and the Refunding Agreement (including, without
limitation, Section 4 thereof), shall have been met prior to the issuance and
delivery of the Bonds, and none of such conditions precedent shall have been
waived by the Company, the Owner Trustee or the Indenture Trustee without the
consent of the Underwriters.
(n) The Underwriters shall have received payment in full of the
underwriting commissions specified in Section 2 hereof.
(o) On the Closing Date there shall be in full force and effect an
order or orders of the Connecticut Department of Public Utility Control
authorizing the Company to enter into the transactions contemplated by the
Transaction Documents and the Prospectus, and such orders shall not be the
subject of any pending attack, either direct, collateral or on appeal.
If any of the conditions specified in this Section shall not have been
fulfilled, this Underwriting Agreement may be terminated by the Underwriters
upon notice thereof to the Company. Any such termination shall be without
liability of any party to any other party, except as otherwise provided in
paragraph (g) of Section 7, Section 10 and Section 12.
SECTION 9. CONDITIONS OF THE OBLIGATIONS OF THE OWNER TRUSTEE AND THE
COMPANY. The obligations of the Owner Trustee
- 12 -
and the Company hereunder shall be subject to the following conditions:
(a) The Registration Statement shall be effective and no stop order
suspending the effectiveness of the Registration Statement shall be in effect at
or prior to the Closing Date, and no proceedings for that purpose shall be
pending before or threatened by the Commission on the Closing Date.
(b) On the Closing Date, there shall be in full force and effect an
order or orders of the Connecticut Department of Public Utility Control
authorizing the Company to enter into the transactions contemplated by the
Transaction Documents and the Prospectus, and such orders shall not be the
subject of any pending attack, either direct, collateral or on appeal.
(c) In the case of the Company, the conditions precedent to the
obligation of the Company to issue the Bonds and consummate the transactions
contemplated by the Participation Agreement (including, without limitation,
Section 10(c) thereof) and the Refunding Agreement (including, without
limitation, Section 4 thereof) shall have been met prior to or contemporaneously
with the issuance and delivery of the Bonds.
If the conditions specified in this Section shall not have been
fulfilled, this Underwriting Agreement may be terminated by the Company or the
Owner Trustee upon notice thereof to the Underwriters. Any such termination
shall be without liability of any party to any other party, except as otherwise
provided in paragraph (g) of Section 7, Section 10, and Section 12.
SECTION 10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the Owner Trustee, Meridian and each person, if any, who controls
any of the foregoing within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by such Underwriter, the Owner Trustee,
Meridian or any such controlling person in connection with investigating or
defending any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter, the Owner Trustee, Meridian or such other person furnished
in writing to the Company by such
- 13 -
Underwriter, the Owner Trustee, Meridian or such other person expressly for use
therein.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its officers and directors who sign the Registration Statement, the
Owner Trustee, Meridian and each person, if any, who controls the Company,
Meridian, or the Owner Trustee within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity in subsection (a) from the Company to such Underwriter, Meridian, and
the Owner Trustee, but only with reference to information relating to such
Underwriter furnished to the Company, Meridian or the Owner Trustee in writing
by such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus or any amendments or supplements
thereto.
(c) The Owner Trustee agrees to indemnify, defend and hold harmless
each Underwriter, Meridian, the Company and its officers and directors, and each
person who controls any Underwriter, Meridian, or the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the indemnity in subsection (a) from the Company to such
Underwriter, Meridian and the Owner Trustee, but only with reference to
information relating to the Owner Trustee furnished in writing by the Owner
Trustee expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
(A) both the indemnifying party and the indemnified party, or (B) if the Company
is an indemnifying party, the Underwriters, and representation of more than one
party by the same counsel would be inappropriate due to actual or potential
differing interests between them. In any case to which an exception set forth in
clauses (i) or (ii) above applies, the fees and expenses of counsel shall be at
the expense of the indemnifying party. It is
- 14 -
understood that the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for each indemnified party, and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, on behalf of the Underwriters, the
Company or the Owner Trustee in the case of parties indemnified pursuant to
Subsections (a), (b) or (c), respectively, of this Section 10. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this subsection (d), the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 business days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in subsections
(a), (b) or (c) of this Section 10 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Owner Trustee on the one hand and the Underwriters on the other
hand from the offering of the Bonds or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Owner Trustee and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Owner Trustee and the Underwriters in connection with the offering of the Bonds
shall be deemed to be in the same
- 15 -
respective proportions as are represented by the total net proceeds from the
offering of such Bonds (before deducting expenses) received by the Company, the
fees received by the Owner Trustee in connection with the issuance of the Bonds,
and the total underwriting discounts and commissions received by the
Underwriters, as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company, the Owner Trustee and the Underwriters shall be
determined by reference to among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Owner
Trustee or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(f) The Company, the Owner Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to subsection (e) of
this Section 10 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in subsection (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in Subsection
(e) shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Bonds underwritten and distributed to the public by such
Underwriter were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The obligations of the
Underwriters to make contributions pursuant to subsections (e) and (f) of this
Section 10 shall be several in accordance with their respective underwriting
percentages set forth on Schedule I and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 10 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
SECTION 11. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. Any
other provision of this Underwriting Agreement to the contrary notwithstanding,
the indemnity and contribution agreements contained in Section 10 and the
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Underwriting
Agreement, (ii) any investigation made by the Underwriter or on behalf of the
Underwriter or the person controlling the Underwriter or by or on behalf of the
Company,
- 16 -
its directors or officers or any person controlling the Company and (iii)
acceptance of and payment for the Bonds.
SECTION 12. TERMINATION. This Underwriting Agreement shall be subject
to termination in the absolute discretion of the Underwriters, by notice given
to the Company, if (a) after the execution and delivery of this Underwriting
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriters, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it, in the judgment of
the Underwriters, impracticable to market the Bonds on the terms and in the
manner contemplated in the Prospectus.
If this Underwriting Agreement shall be terminated (a) by the
Underwriters because of any failure or refusal on the part of the Company to
comply with the terms, or to fulfill any of the conditions, of this Underwriting
Agreement or (b) by the Company because the transactions contemplated by the
Refunding Agreement shall not have been consummated as the result of any failure
or refusal on the part of either of the Owner Trustee or the Owner Participant
to comply with the terms, or to fulfill any of the conditions, of the
Participation Agreement or the Refunding Agreement, or if for any reason the
Company or the Owner Trustee shall be unable to perform its obligations under
this Underwriting Agreement, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by such Underwriters in connection with this Underwriting
Agreement or the Bonds. The Owner Trustee hereby agrees to reimburse the Company
for any expenses paid by the Company to the Underwriters pursuant to clause (b)
of this paragraph. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated profits.
SECTION 13. DEFAULT BY ONE OR MORE UNDERWRITERS. If any Underwriter
shall fail or refuse (otherwise than for some reason sufficient to justify, in
accordance with the terms hereof, the cancellation or termination of its
obligations hereunder) to purchase and pay for the principal amount of Bonds
which it has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds which such defaulting
- 17 -
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Bonds, the other
Underwriters shall be obligated severally in the proportions which the amounts
of Bonds set forth opposite their names in Schedule I hereto bear to the
aggregate principal amount of Bonds set forth opposite the names of all such
non-defaulting Underwriters, to purchase the Bonds which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Bonds which any Underwriter has
agreed to purchase pursuant to Schedule I hereto be increased pursuant to this
Section 13 by an amount in excess of one-ninth of such principal amount of Bonds
without the written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase Bonds and the aggregate principal
amount of Bonds with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of the Bonds the Company shall have the right
(a) to require such non-defaulting Underwriters to purchase and pay for the
respective principal amounts of Bonds that they had severally agreed to purchase
hereunder, as hereinabove provided, and, in addition, the principal amount of
Bonds that the defaulting Underwriter or Underwriters shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of the respective
principal amounts of Bonds that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more others, members
of the NASD (or, if not members of the NASD, who are foreign banks, who agree in
making sales to comply with the NASD's Rules of Fair Practice), to purchase,
upon the terms herein set forth, the principal amount of Bonds that such
defaulting Underwriter or Underwriters had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall give written
notice thereof to the Underwriters within 24 hours (excluding any Saturday,
Sunday or legal holiday) of the time when the Company learns of the failure or
refusal of any Underwriter or Underwriters to purchase and pay for its
respective principal amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as the Company
shall determine. In the event the Company shall be entitled to but shall not
elect (within the time period specified above) to exercise its rights under
clause (a) and/or (b), the Company shall be deemed to have elected to terminate
the Underwriting Agreement. In the absence of such election by the Company, this
Underwriting Agreement will, unless otherwise agreed by the Company and the non-
defaulting Underwriters, terminate without liability on the part of any non-
defaulting party except as otherwise provided in paragraph (g) of Section 7 and
in Section 11. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of its default under this
Underwriting Agreement.
- 18 -
SECTION 14. MISCELLANEOUS. THIS UNDERWRITING AGREEMENT SHALL BE A NEW
YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION SHALL BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK. This Underwriting Agreement may be executed in any
number of 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. This Underwriting Agreement shall
inure to the benefit of each of the Company, the Owner Trustee, Meridian, the
Underwriters and, with respect to the provisions of Section 10, each director,
officer and controlling person referred to in Section 10, and their respective
successors. Should any part of this Underwriting Agreement for any reason be
declared invalid, such declaration shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and effect
as if this Underwriting Agreement had been executed with the invalid portion
thereof eliminated. Nothing herein is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of any provision in this Underwriting Agreement. The
term "successor" as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 15. NOTICES. All communications hereunder shall be in writing
and, if to the Underwriters, shall be mailed or delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated at the address set forth at the beginning of this Underwriting
Agreement, if to the Company, shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and if to the Owner Trustee, shall be mailed or
delivered to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SECTION 16. CONCERNING THE OWNER TRUSTEE. Meridian is entering into
this Underwriting Agreement solely in its capacity as Owner Trustee under the
Trust Agreement and not in its individual capacity. Anything herein to the
contrary notwithstanding, the representations, warranties, undertakings and
agreements herein made on the part of the Owner Trustee are made and intended
not as personal representations, warranties, undertakings and agreements by or
for the purpose or with the intention of binding Meridian in its individual
capacity but are made and intended for the purpose of binding only the Trust
Estate (as defined in the Participation Agreement). If a successor owner trustee
is appointed in accordance with the terms of the Trust Agreement, such successor
owner trustee shall, without any further act, succeed to all the rights, duties,
immunities and obligations of the Owner Trustee and Meridian
- 19 -
hereunder and the predecessor owner trustee shall be released from all further
duties and obligations hereunder.
Very truly yours,
THE UNITED ILLUMINATING COMPANY
By:____________________________
Title:
MERIDIAN TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:____________________________
Title:
Accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:____________________________
Title:
CITICORP SECURITIES, INC.
By:____________________________
Title:
- 20 -
Schedule I
Principal Amount Principal Amount
Name of Underwriter of Series ____ Bonds of Series ____ Bonds
------------------- ------------------- --------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated $ $
Citicorp Securities,
Inc.
__________________ __________________
Total $ $
================== ==================
Exhibit A
---------
[Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇,
Counsel to the Company]
_____________, 199___
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Each Person Listed
on the Attached Schedule A
Ladies and Gentlemen:
We have acted as counsel for The United Illuminating Company (the
"Company") in connection with the sale to the Underwriters pursuant to and
subject to the conditions of the Underwriting Agreement, dated , 199 (the
"Underwriting Agreement"), among the Company, Meridian Trust Company in its
capacity as Owner Trustee (the "Owner Trustee") under the Trust Agreement, dated
as of August 1, 1990, relating to the transactions hereinafter described (the
"Trust Agreement"), and the Underwriters, of $ in aggregate principal
amount of Seabrook 1 Secured Lease Obligation Bonds as follows: $ %
Series due , ; and $ % Series due , (collectively, the "Bonds").
The Bonds will be issued pursuant to the Indenture of Mortgage and Deed of
Trust, dated as of August 1, 1990, as supplemented by Supplemental Indenture No.
2 thereto, dated as of , 199 (the Indenture of Mortgage and Deed of Trust, as so
amended and supplemented, being hereinafter referred to as the "Indenture"),
among the Company, The Bank of New York, as Indenture Trustee and the Owner
Trustee. This opinion is being delivered to you at the request of the Company
pursuant to Section 8(d) of the Underwriting Agreement. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Underwriting Agreement.
In our capacity as such counsel, we have either participated in the
preparation of or have examined and are familiar with: (a) the Restated
Certificate of Incorporation and Bylaws of the Company and each of its
subsidiaries; (b) the Underwriting Agreement; (c) the Indenture; (d) the
Registration Statement and Prospectus filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), and the Trust Indenture Act of 1939, as amended (the "TIA"); (e) the
documents incorporated by reference in the Registration Statement and
Prospectus; (f) the records of various corporate proceedings of the Company
relating to the issuance and sale of the Bonds and the execution and delivery by
the Company of the Indenture and the Underwriting Agreement; (g) the Transaction
Documents and (h) the proceedings before the Connecticut Department of Public
Utility Control (the "DPUC") authorizing the Company to enter into the
transactions contemplated by the Transaction Documents and the Prospectus. We
have also examined such other documents and have satisfied ourselves as to such
other matters as we have deemed necessary in order to render this opinion. We
have assumed that the Transaction Documents and the Underwriting Agreement have
each been duly authorized, executed and delivered by each party thereto other
than the Company and that each such instrument constitutes the legal, valid and
binding obligation of such party other than the Company.
Based upon the foregoing, we are of the opinion that:
1. Each of the Company and its subsidiaries is duly organized and
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has due corporate power and authority to
conduct the business which it is described as conducting in the Prospectus and
to own and operate the properties owned and operated by it in such business.
2. The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company, has been duly and validly
executed and delivered by the Company, and constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar laws
affecting the enforcement of creditors' rights or the enforcement of the
security interest provided by the Indenture and general equitable principles.
The Indenture is qualified under the TIA and, to the best of our knowledge, no
proceedings to suspend the effectiveness of such qualification have been
instituted or threatened by the Commission.
3. The Underwriting Agreement has been duly and validly authorized
by all necessary corporate action on the part of the Company and has been duly
and validly executed and delivered by the Company.
- 2 -
4. The issuance and sale of the Bonds and the execution, delivery
and performance by the Company of the Transaction Documents to which it is a
party and the consummation of the Transactions contemplated thereby will not (a)
violate or conflict with any provision of the Company's Restated Certificate of
Incorporation or Bylaws, as amended, (b) violate or conflict with any provision
of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance on or security interest in (other than as
contemplated by the Indenture) any of the assets of the Company pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other undertaking
known to us (having made due inquiry with respect thereto) to which the Company
is a party or which purports to be binding upon the Company or upon any of its
assets or (c) violate any provision of any [Connecticut or federal] law or
regulation applicable to the Company [(other than the Connecticut securities or
blue-sky laws, upon which we express no opinion)] or, to the best of our
knowledge (having made due inquiry with respect thereto), any provision of any
order, writ, judgment or decree of any governmental instrumentality applicable
to the Company (except that various approvals, authorizations, orders, licenses,
permits, franchises and consents of, and registrations, declarations and filings
with, governmental authorities may be required to be obtained or made, as the
case may be, in connection with the construction, acquisition, ownership,
operation and maintenance of the Seabrook 1).
5. The Registration Statement, when it became effective, and the
Prospectus, when it was delivered to the Underwriters to enable them to confirm
sales of the Bonds, (except as to the financial statements and other financial
and statistical data contained therein, upon which we express no opinion)
complied as to form in all material respects with the applicable requirements of
the Act, the TIA and the applicable instructions, rules and regulations of the
Commission thereunder or, pursuant to said instructions, rules and regulations,
are deemed to comply therewith; the documents (or portions thereof) filed with
the Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in the Prospectus, at the time
they were filed with the Commission, complied as to form in all material
respects with the applicable provisions of the Exchange Act, and the applicable
instructions, rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply therewith; the
Registration Statement has become and is effective under the Act and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose are
pending or threatened under Section 8(d) of the Act.
6. (a) An order has been entered by the DPUC authorizing the
refinancing transaction described in the Prospectus and, to the best of our
knowledge, such order is in full force and effect and is not the subject of any
pending
- 3 -
attack either direct or collateral; (b) no further approval, authorization,
consent or other order of any governmental body (other than in connection or
compliance with the provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to be obtained by the Company to permit the
valid issuance and sale of the Bonds to the Underwriters pursuant to the
Underwriting Agreement or the execution, delivery and performance of the
Underwriting Agreement or the Indenture by the Company; (c) no further approval,
authorization, consent or other order of any governmental body is legally
required to permit the performance (other than that relating to the
construction, acquisition, ownership, operation, and maintenance of Seabrook 1)
by the Company of its obligations with respect to the Bonds or under the
Indenture and the Underwriting Agreement; and (d) no approval, authorization,
consent or order of the DPUC is required to be obtained by the Owner Trustee
solely as a result of the issuance and sale of the Bonds to the Underwriters
pursuant to the Underwriting Agreement or the execution and delivery of the
Indenture by the Owner Trustee.
7. No legal or governmental proceedings to which the Company is a
party or of which its property is the subject that are of a character required
to be disclosed in the Registration Statement and which are not disclosed and
properly described therein as required are pending or, to our knowledge,
threatened; and we do not know of any contracts or other documents of the
Company of a character required to be filed as exhibits to the Registration
Statement which are not so filed, or any contracts or other documents of the
Company of a character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as required; the
descriptions in the Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown.
8. The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
9. Except as disclosed in the Prospectus, there is no action, suit,
proceeding or investigation pending against or affecting the Company or any of
it assets the result of which would, in our opinion, be reasonably expected to
have a materially adverse effect on the financial condition of the Company or on
the issuance and sale of the Bonds in accordance with the Underwriting
Agreement.
10. The statements made in the Prospectus under the captions "Summary
Financial Information", "Selected Information Relating to the Offered Bonds",
"Security and Source of Payment for the Offered Bonds", "Description of the
Offered Bonds and the Indenture", "Description of the Lease" and "Other
Agreements", insofar as such statements purport to constitute summaries of the
- 4 -
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
In passing upon the forms of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and information included in the Registration
Statement and the Prospectus and take no responsibility therefor, except insofar
as such statements relate to us and as set forth in paragraph 10 above. In
connection with the preparation of the Registration Statement and the
Prospectus, we have had discussions with certain of the Company's officers and
representatives, with other counsel for the Company and with Coopers & ▇▇▇▇▇▇▇,
the independent certified public accountants who examined certain of the
financial statements incorporated by reference in the Registration Statement.
Our examination of the Registration Statement and the Prospectus and our
discussions did not disclose to us any information that gives us reason to
believe that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, when copies thereof were delivered to the
Underwriters and at the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical data contained in
the Registration Statement or the Prospectus or as to the portions of the
Prospectus describing the Depository Trust Company or its book-entry system.
We have examined the portions of the information contained in the
Registration Statement that are stated therein to have been made on our
authority, and we believe such information to be correct. We are members of the
Connecticut Bar and do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of Connecticut and the United States of
America. We have examined the opinions of even date herewith rendered to you by
▇▇▇▇ & Priest LLP and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and we concur in the
conclusions expressed therein insofar as they involve questions of Connecticut
law. In rendering the opinions set forth above, we have relied solely upon such
opinion of ▇▇▇▇ & Priest LLP as to (i) all matters relating to New York law, to
the extent that such opinion states an opinion with regard to the matters
covered by this opinion, and (ii) the accuracy and sufficiency of the
information contained in the Transaction Descriptions (as defined in such ▇▇▇▇ &
Priest LLP opinion) portion of the Registration Statement and Prospectus. As to
all matters relating to New Hampshire law, we have relied solely upon an opinion
of even date herewith addressed to you of [▇▇▇▇▇▇, Millimet & Branch], to the
- 5 -
extent that such opinion states an opinion with regard to the matters covered by
this opinion.
This opinion is rendered to you and the persons listed on Schedule A
for the purpose of the transactions described above and may not be relied upon
for any other purpose or by any other person for any purpose without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇ & ▇▇▇▇
- 6 -
SCHEDULE A
Financial Leasing Corporation
As Owner Participant
Citicorp North America, Inc.
As Guarantor
Meridian Trust Company
Individually and as Owner Trustee
The Bank of New York
Individually and as Indenture Trustee
The United Illuminating Company
As Lessee
Exhibit B
---------
[Form of Opinion of ▇▇▇▇ & Priest LLP,
Special Counsel to the Company]
, 199
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel for The United Illuminating Company
(the "Company") in connection with the sale to the Underwriters pursuant to and
subject to the conditions of the Underwriting Agreement, dated , 199 (the
"Underwriting Agreement"), among the Company, Meridian Trust Company in its
capacity as Owner Trustee (the "Owner Trustee") under the Trust Agreement dated
as of August 1, 1990 relating to the transactions hereinafter described (the
"Trust Agreement"), and the Underwriters, of $ in aggregate principal
amount of Seabrook 1 Secured Lease Obligation Bonds as follows: $ %
Series due , ; and $ % Series due , (collectively, the "Bonds").
The Bonds will be issued pursuant to
the Indenture of Mortgage and Deed of Trust, dated as of August 1, 1990, as
supplemented by Supplemental Indenture No. 2, dated as of , 199 (the
Indenture of Mortgage and Deed of Trust, as so amended and supplemented being
hereinafter referred to as the "Indenture"), among the Company, The Bank of New
York, as Indenture Trustee and the Owner Trustee. This opinion is being
delivered to you at the request of the Company pursuant to Section 8(d) of the
Underwriting Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Underwriting Agreement.
In our capacity as such counsel, we have either participated in the
preparation of or have examined and are familiar with: (a) the Company's
Certificate of Incorporation and Bylaws, as amended, of the Company and each of
its subsidiaries; (b) the Underwriting Agreement; (c) the Indenture; (d) the
Registration Statement and Prospectus filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), and the Trust Indenture Act of 1939, as amended (the "TIA"); (e) the
records of various corporate proceedings of the Company relating to the
authorization, issuance and sale of the Bonds and the execution and delivery by
the Company of the Indenture and the Underwriting Agreement; and (f) the
Transaction Documents and the other
documents, agreements and instruments entered into by the Company to effect the
refinancing transaction described in the Prospectus. We have also examined such
other documents and have satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. We have assumed that the
Transaction Documents and the Underwriting Agreement have each been duly
authorized, executed and delivered by each party thereto other than the Company
and that each such instrument constitutes the legal, valid and binding
obligation of each such party other than the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company, has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar laws
affecting the enforcement of creditors' rights generally or the enforcement of
the security interest provided by the Indenture and general equitable
principles. The Indenture is qualified under the TIA, and, to the best of our
knowledge, no proceedings to suspend the effectiveness of such qualification
have been instituted or threatened by the Commission.
(2) The Underwriting Agreement has been duly and validly authorized
by all necessary corporate action on the part of the Company and has been duly
and validly executed and delivered by the Company.
(3) The issuance and sale of the Bonds and the execution, delivery
and performance by the Company of the Underwriting Agreement and the Transaction
Documents will not violate any provision of any New York law or regulation
(other than the New York securities or blue-sky laws, upon which we are not
passing).
(4) The statements contained in the portions of the Registration
Statement consisting of the cover pages of the Prospectus Supplement and the
Prospectus and the sections entitled [" "] and [" "] and [" "] (the
"Transaction Description") insofar as such statements purport to constitute
summaries of documents referred to therein, fairly and accurately describe all
material provisions of such documents. The sections of the Registration
Statement entitled ["Certain Terms of the Offered Bonds", "Security and Source
of Payment for the Bonds" and "Description of the Offered Bonds and the
Indenture",] taken together with the balance of the Transaction Description,
comply as to form in all material respects with Item 202(b) of Regulation S-K
under the Act and the applicable requirements of the TIA. The Bonds conform to
the description thereof in the Prospectus and are entitled to the benefits
- 2 -
afforded by the Indenture. We do not express any opinion or belief as to the
portions of the Registration Statement and the Prospectus describing the
Depositary Trust Company or its book-entry system.
(5) (a) No New York approval, authorization, consent or other order
(other than in connection or compliance with the provisions of the New York
securities or blue-sky laws, upon which we are not passing) is legally required
to be obtained by the Company to permit the issuance and sale of the Bonds to
the Underwriters pursuant to the Underwriting Agreement or the execution and
delivery of the Underwriting Agreement and the Indenture by the Company; and (b)
no approval, authorization, consent or order of the Commission under the Public
Utility Holding Company Act of 1935, as amended, is required to be obtained by
the Owner Trustee solely as a result of the issuance and sale of the Bonds to
the Underwriters pursuant to the Underwriting Agreement or the execution and
delivery of the Underwriting Agreement or the Indenture by the Owner Trustee.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of any jurisdiction other than the laws of the State of New
York and the federal law of the United States of America. Accordingly, as to
matters of Connecticut and New Hampshire law, we have, with your consent, relied
upon an opinion of even date herewith addressed to you of ▇▇▇▇▇▇ & ▇▇▇▇ of New
Haven, Connecticut and upon the opinion of even date herewith addressed to you
of [▇▇▇▇▇▇, Millimet & Branch] of Manchester, New Hampshire. Our opinion set
forth in paragraph 5(b) above is based upon the representation of the Owner
Trustee contained in Section 7(a)(10) of the Participation Agreement, and the
agreement of the Owner Trustee in Section 7(b)(7) of the Participation
Agreement.
A copy of this opinion has been delivered to each of the parties
listed on Schedule A hereto and each such party is entitled to rely on this
opinion as if it were addressed to such party. This opinion may not be relied
upon in any manner by any other person without our prior written consent.
We have not examined and are expressing no opinion as to matters
relating to incorporation of the Company, titles to property or franchises.
Very truly yours,
▇▇▇▇ & PRIEST LLP
- 3 -
SCHEDULE A
Financial Leasing Corporation
As Owner Participant
Citicorp North America, Inc.
As Guarantor
Meridian Trust Company
Individually and as Owner Trustee
The Bank of New York
Individually and as Indenture Trustee
The United Illuminating Company
As Lessee
Exhibit C
---------
[Form of Opinion of [▇▇▇▇▇▇, Millimet & Branch,]
New Hampshire Counsel to the Company]
__________, 199__
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
Each Person Listed on
the Attached Schedule A
Ladies and Gentlemen:
We have acted as New Hampshire counsel for The United Illuminating
Company (the "Company") in connection with the sale to the Underwriters pursuant
to and subject to the conditions of the Underwriting Agreement, dated , 199
(the "Underwriting Agreement"), among the Company, Meridian Trust Company, in
its capacity as Owner Trustee (the "Owner Trustee") under the Trust Agreement
dated August 1, 1990 relating to the transactions hereinafter described (the
"Trust Agreement"), and the Underwriters, of $ in aggregate principal amount of
Seabrook 1 Secured Lease Obligation Bonds as follows: $ % Series due
, , and $ % Series due ________ __, __ (collectively, the
"Bonds"). The Bonds will be issued pursuant to the Indenture of Mortgage and
Deed of Trust, dated as of August 1, 1990, as supplemented by Supplemental
Indenture No. 2, dated as of , 199 (the Indenture of Mortgage and Deed of Trust,
as so amended and supplemented being hereinafter referred to as the
"Indenture"), among the Company, The Bank of New York, as Indenture Trustee, and
the Owner Trustee. This opinion is being delivered to you at the request of the
Company pursuant to Section 8(d) of the Underwriting Agreement. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Underwriting Agreement.
In our capacity as such counsel, we have examined (a) the opinions to
you of even date of ▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇ & Priest LLP, and Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇; (b) the Underwriting Agreement; (c) the Indenture; and (d) the
Transaction Documents. We have examined originals, or copies certified or
otherwise identified to our satisfaction, of such other agreements, records and
other documents, certificates of public officials and officers, management
personnel and representatives of the Company, and have investigated such
matters of law, as we have deemed necessary or advisable for the purposes of
rendering the opinions set forth herein. We have assumed the genuineness of the
signatures on documents and instruments, the authenticity of documents submitted
as originals and the conformity to originals of documents submitted as copies
thereof. We have also assumed the due authorization, execution and delivery of
documents by the parties thereto, other than the Company, and that each such
document constitutes the legal, valid and binding obligation of each such party
other than the Company, enforceable against each in accordance with its terms.
We have assumed the truthfulness and accuracy of all representations and
warranties made as to factual matters in the Transaction Documents by the
parties thereto.
We have assumed that the properties with respect to which investments
are recorded in the Company plant accounts identified in Schedule U1 to the
Indenture are of the types specified in Schedule U1.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
(1) Each of the Indenture, the Facility Lease, the Ground Lease, and
each other Transaction Document that, by its terms, is governed by the laws of
New Hampshire has been duly and validly authorized by all necessary corporate
action on the part of the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(2) The properties included within the definition of "Indenture
Estate" that the Indenture purports to subject to the lien granted to the
Indenture Trustee for the benefit of the bondholders are of types that can,
under the laws of New Hampshire, be subject to such lien and the description of
the Indenture Estate contained in the Indenture is adequate under the laws of
New Hampshire to create the lien therein that the Indenture purports to create.
(3) (a) The Bonds are equally and ratably secured by a perfected
first priority lien on and security interest in the Undivided Interest (as
defined in the Prospectus) and, other than Excepted Payments and Excepted
Rights, the rights of the Owner Trustee under the Lease and other Transaction
Documents, including the right to receive all payments of Basic Rent (as defined
in Appendix A to the Participation Agreement) and certain other payments made by
the Company subject to the following:
(i) Permitted Liens.
(ii) A security interest in cash or in instruments (other than
certified securities or instruments forming a part of chattel paper) can be
perfected only by the secured
- 2 -
party's taking possession (with certain exceptions which may not be
relevant here.)
(iii) The creation and perfection of security interests in securities
requires the transfer of such securities in the manner prescribed in
Article 8 of the New Hampshire Uniform Commercial Code (RSA 382:A:8-101 et
seq.) to the secured party or a person designated by the secured party.
(iv) Under certain circumstances described in Section 9-306 of the
Uniform Commercial Code, the right of a secured party to enforce a
perfected security interest in cash proceeds of and collections pursuant to
collateral may be limited.
(v) You have not requested us to express any opinion, and we express
none, as to the perfection or priority of security interests in vehicles or
in copyrights and literary property rights.
(vi) Pursuant to the Uniform Commercial Code, continuation statements
are required from time to time to be filed in order to be preserved a
security interest in personal property or fixtures as a perfected security
interest and the priority thereof.
[(vii) The lien of the Indenture in real estate acquired after the
Closing will be at most an equitable interest of limited enforceability.]
(viii) No opinion is expressed as to [(A) the priority of a security
interest in personal property to the extent that such priority is limited
by the terms of the Uniform Commercial Code as enacted in New Hampshire,]
or (B) the validity, legality, enforceability, priority or perfection of a
security interest in any contracts, agreements, permits, franchises or
licenses which prohibit or limit the transfer or assignment thereof or the
grant of a security interest therein, or (C) the priority or perfection of
a security interest in personal property which cannot be perfected by the
filing of a financing statement.
(b) All filings or recordings required to be made in New
Hampshire under New Hampshire law to create or perfect such lien and security
interest (i) have been made in all of the offices in which such filings or
recordings are necessary or appropriate and (ii) are in the form required by
law.
[(4) All taxes and governmental fees and charges the payment of
which is required in connection with the creation, perfection or filing of the
lien of the Indenture have been paid.]
- 3 -
(5) The issuance and sale of the Bonds and the execution, delivery
and performance by the Company of the Transaction Documents to which it is a
party will not violate any provision of New Hampshire law or regulation
applicable to the Company (other than the New Hampshire securities or blue-sky
laws, upon which we are not passing) or, to the best of our knowledge, any
provision of any order, writ, judgment or decree of any New Hampshire
governmental instrumentality applicable to the Company (except that various
approvals, authorizations, orders, licenses, permits, franchises and consents
of, and registrations, declarations and filings with, governmental authorities
may be required to be obtained or made, as the case may be (1) in connection or
compliance with the provisions of the securities or blue-sky laws of any
jurisdiction and (2) in connection with the construction, acquisition,
ownership, operation and maintenance of Seabrook 1).
The opinions expressed in paragraphs 2 and 3 above are given in
reliance and are based upon the title report delivered pursuant to Section
10(a)(26) of the Participation Agreement. We have further assumed that
immediately prior to the Closing the Company has good, marketable and valid
title to those portions of the Undivided Interest which constitute personal
property.
The opinions set forth herein are subject to the qualification that
(i) enforceability of the Participation Agreement, the Refunding Agreement, the
Facility Lease, the Promissory Note and the other Transaction Documents in
accordance with their respective terms may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws affecting enforcement of creditors' or
lessors' rights generally, as well as general principles of equity and the
availability of equitable remedies (regardless of whether such enforcement is
sought in proceedings in equity or at law), and (ii) certain laws and judicial
decisions may affect the enforceability of certain rights and remedies provided
in the Participation Agreement, the Refunding Agreement, the Facility Lease, the
Promissory Note and the other Transaction Documents. With respect to the
qualification in subsection (ii), however, we are of the opinion that none of
such laws in effect and none of such judicial decisions make the rights and
remedies provided in the Transaction Documents, taken as a whole, inadequate for
the practical realization of the benefits of the Transaction Documents, taken as
a whole. We point out that the transfer of title to the Undivided Interest at
foreclosure would require the prior approval of the New Hampshire Public
Utilities Commission and that the purchaser at foreclosure would be required
either to (i) qualify as a foreign electric utility under RSA Chapter 374-A or
(ii) receive the approval of the New Hampshire Public Utilities Commission to
commence business as a public utility, which approval can only be granted to a
business entity organized under the laws of New Hampshire.
- 4 -
We are members of the Bar of the State of New Hampshire and, as such,
do not hold ourselves out as experts on the laws of any other state. The
opinions expressed herein relate only to the laws of New Hampshire to the extent
applicable to the transactions contemplated in the Transaction Documents and not
to the laws of any other state or the United States. In rendering the opinions
set forth above, we have relied as to all matters relating to (A) the laws of
the State of New York, solely upon the opinion of even date herewith of ▇▇▇▇ &
Priest LLP, of New York, New York, the Company's special counsel, and (B) the
laws of the State of Connecticut, the Holding Company Act and the Federal Power
Act, solely upon the opinion of even date herewith of ▇▇▇▇▇▇ & ▇▇▇▇ of New
Haven, Connecticut, the Company's general counsel, as to all of which laws we
have, with your consent, made no independent investigation. This opinion is
limited to matters set forth herein and no opinion may be inferred or implied
beyond the matters expressly stated herein.
We have not examined and are expressing no opinion as to the capacity
of the Owner Participant, the Owner Trustee or the Indenture Trustee to engage
in the transactions contemplated by the Transaction Documents, or on matters of
laws relating to qualification of the Owner Participant, the Owner Trustee or
the Indenture Trustee to do business or relating to or governing banking or the
trust powers of the Owner Trustee, the Owner Participant or the Indenture
Trustee.
This opinion is being rendered solely for your benefit and the benefit
of the Persons named in the attached Schedule A in connection with transactions
contemplated by the Transaction Documents. No such Person may rely on this
opinion for any other purpose, no other Person may rely on this opinion for any
purpose and this opinion may not be referred to or quoted in any document,
report or financial statement of, or filed with or delivered to, any Person,
without the express written consent of the undersigned.
Very truly yours,
[▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & BRANCH
PROFESSIONAL ASSOCIATION]
By: _______________________
- 5 -
SCHEDULE A
Financial Leasing Corporation
As Owner Participant
Citicorp North America, Inc.
As Guarantor
Meridian Trust Company
Individually and as Owner Trustee
The Bank of New York
Individually and as Indenture Trustee
The United Illuminating Company
As Lessee
Exhibit D
---------
[Form of Opinion of Haight, Gardner, Poor & ▇▇▇▇▇▇,
Counsel to the Owner Trustee]
, 199
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
We have acted as counsel to the Owner Trustee in connection with the
sale to the Underwriters of $ in aggregate principal amount of Seabrook 1
Secured Lease Obligation Bonds as follows: $ % Series due ,
and $ % Series due , (collectively, the "Bonds") pursuant to and
subject to the conditions set forth in the Underwriting Agreement, dated ,
199 among The United Illuminating Company ("UI"), Meridian Trust Company
("Meridian") not in its individual capacity but solely as Owner Trustee
(the "Owner Trustee") under the Trust Agreement, dated as of August 1, 1990
relating to the transactions hereinafter described (the "Trust Agreement") and
the Underwriters. The Bonds will be issued pursuant to the Indenture of Mortgage
and Deed of Trust, dated as of August 1, 1990, as supplemented by Supplemental
Indenture No. 2, dated as of , 199 (the Indenture of Mortgage and Deed of
Trust, as so amended and supplemented being hereinafter referred to as the
"Indenture") among UI, The Bank of New York, as Indenture Trustee and the Owner
Trustee. This opinion is being delivered to you at the request of the Owner
Trustee pursuant to Section 8(d) of the Underwriting Agreement. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Underwriting Agreement.
In our capacity as such counsel, we have either participated in the
preparation of or have examined and are familiar with the Underwriting Agreement
and the Transaction Documents. We have also examined such other documents and
have satisfied ourselves as to such other matters as we have deemed necessary in
order to render this opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Indenture Trustee under
the Indenture as to the execution and authentication thereof.
We have assumed that each of the Transaction Documents and the
Underwriting Agreement has been duly authorized, executed and delivered by each
party thereto other than Meridian and the Owner Trustee and that each such
instrument constitutes the
legal, valid and binding agreement of each such party other than the Owner
Trustee.
Based upon the foregoing, we are of the opinion that:
(1) Meridian is a Pennsylvania trust company duly organized and
validly existing in good standing under the laws of the Commonwealth of
Pennsylvania and has all requisite corporate power and authority to enter into
and perform its obligations under the Trust Agreement, and pursuant to the Trust
Agreement, the Owner Trustee has all requisite power and authority to enter into
and perform its obligations under the Indenture and the Underwriting Agreement.
(2) The Indenture has been duly and validly authorized by all
necessary action on the part of the Owner Trustee, has been duly and validly
executed and delivered by the Owner Trustee and, assuming the due authorization,
execution and delivery thereof by each other party thereto, constitutes the
legal, valid and binding obligation of the Owner Trustee, enforceable against
the Owner Trustee in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the enforcement of creditors' rights generally.
(3) The Owner Trustee has executed such instruments and complied with
such other formalities as are required of the Owner Trustee under the Indenture
as a condition precedent to the creation and issuance of the Bonds.
(4) The Bonds have been duly authorized, executed, issued and
delivered by the Owner Trustee and, assuming their due authentication by the
Indenture Trustee in accordance with the Indenture and that value has been given
therefor, are the legal, valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization and other
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), and are entitled to the benefits purported to be provided
by the Indenture in accordance with the terms of the Indenture and the Bonds.
(5) No approval, authorization, consent or other order of any
governmental body under any law of the United States of America or the
Commonwealth of Pennsylvania, in each case, governing the trust powers of
Meridian or the Owner Trustee, is required to permit the issuance and sale of
the Bonds by the Owner Trustee to the Underwriters pursuant to the Underwriting
Agreement or the execution and delivery of the Underwriting Agreement or the
Indenture by the Owner Trustee.
- 2 -
(6) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Owner Trustee.
(7) The issuance and sale by the Owner Trustee of the Bonds and the
execution, delivery and performance by the Owner Trustee of the Underwriting
Agreement and the Indenture will not (a) violate any provision of Meridian's
Articles of Incorporation or By-Laws or (b) violate any provision of any law or
regulation of the United States of America or the Commonwealth of Pennsylvania,
in each case, governing the trust powers of Meridian or the Owner Trustee
applicable to the Owner Trustee.
In rendering the opinions set forth above, we have not opined as to
and do not purport to opine as to the application of (i) any laws of any
jurisdiction other than the laws of the Commonwealth of Pennsylvania, the State
of New York and the United States of America or (ii) any United States federal
or state securities or blue-sky laws. To the extent the opinions expressed
herein relate to the due incorporation, organization or corporate power of
Meridian, the due authorization and execution by Meridian of the Trust Agreement
and the Transaction Documents to which Meridian is a party, and laws of the
Commonwealth of Pennsylvania, we have relied on an opinion of even date herewith
of ▇▇▇▇▇▇▇ & ▇▇▇, Pennsylvania counsel for the Owner Trustee, addressed to you.
We confirm that ▇▇▇▇▇▇▇ & ▇▇▇ and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely
on this opinion in issuing their own opinions to you.
Very truly yours,
HAIGHT, GARDNER, POOR & ▇▇▇▇▇▇
By: __________________________
- 3 -
SCHEDULE A TO OPINION LETTER
----------------------------
Meridian Trust Company, individually and
as Owner Trustee
Financial Leasing Corporation, as Owner Participant
The Bank of New York, individually and
as Indenture Trustee
The United Illuminating Company, as Lessee
Citicorp North America, Inc., as Guarantor
Exhibit E
---------
[Form of Opinion of ▇▇▇▇▇▇▇ & ▇▇▇,
Pennsylvania Counsel to the Owner Trustee]
, 199
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
We have acted as Pennsylvania counsel to the Owner Trustee in
connection with the sale to the Underwriters of $ , % Series due
, 20 ; and $ , % Series due ____________ ___, 20__ (collectively, the "Bonds")
pursuant to and subject to the conditions set forth in the Underwriting
Agreement, dated , 19 among The United Illuminating Company ("UI"), Meridian
Trust Company ("Meridian") not in its individual capacity but solely as Owner
Trustee (the "Owner Trustee") under the Trust Agreement, dated as of August 1,
1990 relating to the transactions hereinafter described (the "Trust Agreement")
and the Underwriters. The Bonds will be issued pursuant to the Indenture of
Mortgage and Deed of Trust, dated as of August 1, 1990, as supplemented by
Supplemental Indenture No. 2, dated as of , 199 (the Indenture of Mortgage and
Deed of Trust, as so amended and supplemented being hereinafter referred to as
the "Indenture") among UI, The Bank of New York, as Indenture Trustee, and the
Owner Trustee. This opinion is being delivered to you at the request of the
Owner Trustee pursuant to Section 8(d) of the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Underwriting Agreement.
In our capacity as such counsel, we have examined and are familiar
with the Underwriting Agreement and the Transaction Documents. We have also
examined such other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this opinion. We have not
examined the Bonds, except a specimen thereof, and we have relied upon a
certificate of the Indenture Trustee under the Indenture as to the execution and
authentication thereof.
We have assumed that each of the Transaction Documents and the
Underwriting Agreement has been duly authorized, executed and delivered by each
party thereto other than Meridian and the Owner Trustee and that each such
instrument constitutes the legal, valid and binding agreement of each such party
other than the Owner Trustee.
Based upon the foregoing, we are of the opinion that:
(1) Meridian is a Pennsylvania trust company duly organized and
validly existing in good standing under the laws of the Commonwealth of
Pennsylvania and has all requisite corporate power and authority to enter into
and perform its obligations under the Trust Agreement, and pursuant to the Trust
Agreement, the Owner Trustee has all requisite power and authority to enter into
and perform its obligations under the Indenture and the Underwriting Agreement.
(2) The Indenture has been duly and validly authorized by all
necessary action on the part of the Owner Trustee, has been duly and validly
executed and delivered by the Owner Trustee and, assuming the due authorization,
execution and delivery thereof by each other party thereto, constitutes the
legal, valid and binding obligation of the Owner Trustee, enforceable against
the Owner Trustee in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the enforcement of creditors' rights generally and subject to general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
(3) The Owner Trustee has executed such instruments and complied with
such other formalities as are required of the Owner Trustee under the Indenture
as a condition precedent to the creation and issuance Of the Bonds.
(4) The Bonds have been duly authorized, executed, issued and
delivered by the Owner Trustee and, assuming their due authentication by the
Indenture Trustee in accordance with the Indenture and that value has been given
therefor, are the legal, valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization and other
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether considered in a procedure in
equity or at law), and are entitled to the benefits purported to be provided by
the Indenture in accordance with the terms of the Indenture and the Bonds.
(5) No approval, authorization, consent or other order of any
governmental body under any law of the Commonwealth of Pennsylvania governing
the trust powers of Meridian or the Owner Trustee, is required to permit the
issuance and sale of the Bonds by the Owner Trustee to the Underwriter pursuant
to the Underwriting Agreement or the execution and delivery of the Underwriting
Agreement or the Indenture by the Owner Trustee.
(6) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Owner Trustee.
- 2 -
(7) The issuance and sale by the Owner Trustee of the Bonds and the
execution, delivery and performance by the Owner Trustee of the Underwriting
Agreement and the Indenture will not (a) violate any provision of Meridian's
Articles of Incorporation or By-Laws or (b) violate any provision of any law or
regulation of the Commonwealth of Pennsylvania governing the trust powers of
Meridian or the Owner Trustee applicable to the Owner Trustee.
In rendering the opinions set forth above, we have not opined as to
and do not purport to opine as to the application of (i) any laws of any
jurisdiction other than the laws of the Commonwealth of Pennsylvania or (ii) any
securities or blue-sky laws. We confirm that Haight, Gardner, Poor & ▇▇▇▇▇▇ and
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely on this opinion in issuing their
own opinions to you.
Very truly yours,
▇▇▇▇▇▇▇ & ▇▇▇
- 3 -
Exhibit F
---------
[Form of Opinion of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Counsel to the Underwriters]
______ __, 199__
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CITICORP SECURITIES, INC.
c/o MORGAN ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to the underwriters (the "Underwriters"),
pursuant to the Underwriting Agreement dated , 199 (the "Underwriting
Agreement") among the Underwriters, The United Illuminating Company, a
Connecticut corporation (the "Company"), and the Owner Trustee, providing for
the several purchases and reoffering by the Underwriters of $ in aggregate
principal amount of Seabrook 1 Secured Lease Obligation Bonds as follows:
$ % Series due , ; and $ % Series due , (collectively, the
"Bonds"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Underwriting Agreement.
In our capacity as your counsel, we have examined such documents, and
such questions of law and have satisfied ourselves as to such other matters as
we have deemed necessary in order to render this opinion. As to various
questions of fact material to this opinion, we have relied upon representations
of the parties to the Transaction Documents and statements in the Registration
Statement. We have not examined the Bonds except a specimen thereof, and we have
relied upon a certificate of the Indenture Trustee as to its due execution of
the Indenture and the due authentication of the Bonds. We have not examined
into, and are expressing no opinion or belief as to matters relating to, titles
to property, franchises, the nature and extent of the lien of the Indenture or
the incorporation of the Company.
Based upon and subject to the foregoing, it is our opinion that:
(1) The Company is a corporation in good standing under the laws of
the State of Connecticut.
(2) The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company and is duly qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"). To the best of
our knowledge, no proceedings to suspend the effectiveness of such qualification
have been instituted or threatened by the Commission. The Indenture has been
duly executed and delivered and is a valid and binding instrument enforceable in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally or the enforcement of the security purported to be provided by the
Indenture, by general equitable principles[, by the Atomic Energy Act of 1954
and regulations thereunder] and by an implied covenant of good faith and fair
dealing.
(3) The Bonds conform as to legal matters with the statements
concerning them made in the Prospectus, are, assuming their due execution and
issuance by the Owner Trustee and due authentication and delivery by the Trustee
in accordance with the Indenture, legal, valid and binding obligations
enforceable in accordance with their terms, and are entitled to the benefit of
the security purported to be provided by the Indenture, except as may be limited
by bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or the enforcement of the security
purported to be provided by the Indenture, by general equitable principles[, by
the Atomic Energy Act of 1954 and regulations thereunder] and by an implied
covenant of good faith and fair dealing.
(4) The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company and the Owner Trustee.
(5) The Registration Statement, as of its effective date, and the
Prospectus, as of its date of issue (except, in each case, as to the financial
statements and other financial and statistical data contained therein, upon
which we do not pass) complied as to form in all material respects with the
requirements of the Act and the TIA; the Registration Statement has become, and
on the date hereof is, effective under the Act and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order are threatened or
pending under Section 8 of the Act.
In passing upon the forms of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made to us by or on behalf of the Company and information included in
the Registration Statement and the Prospectus and take no responsibility
therefor, except as set forth in paragraph (3) hereof and insofar as such
statements relate to us. In connection with the Registration Statement and the
Prospectus, we have had discussions with certain of the Company's officers and
representatives, with counsel for the Company, with Coopers & ▇▇▇▇▇▇▇, the
independent public accountants who examined certain of the financial statements
incorporated by reference in the Registration Statement, and with your
representatives. We have not participated in the
- 2 -
preparation of any of the documents incorporated by reference in the Prospectus
nor in the selection of the information included therein or excluded therefrom
by the Company. Subject to the foregoing, our review of the Registration
Statement and the Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus, at its
date of issue and at the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical data contained in
the Registration Statement or the Prospectus, as to the statement of eligibility
and qualification of the Indenture Trustee or as to the portions of the
Registration Statement and the Prospectus which describe the Depository Trust
Company and its book-entry system.
We are members of the Bar of the State of New York, and (for purposes
of this opinion) do not hold ourselves out as experts on the laws of
Connecticut, New Hampshire, Pennsylvania or any other jurisdiction other than
the State of New York and the United States of America. We have, with your
consent, relied upon opinions of even date herewith addressed to you of ▇▇▇▇▇▇ &
▇▇▇▇ and [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Branch] as to all matters of Connecticut and New
Hampshire law, respectively, related to this opinion.
The opinion set forth above is solely for your benefit in connection
with the transactions contemplated by the Underwriting Agreement and may not be
delivered to or relied upon in any manner by any other person or for any other
purpose.
Very truly yours,
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
- 3 -