WESTERN MASSACHUSETTS ELECTRIC COMPANY SENIOR NOTE UNDERWRITING AGREEMENT
EXHIBIT
1
WESTERN MASSACHUSETTS ELECTRIC COMPANY
SENIOR
NOTE
[_____],
[___]
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1.
Purchase
and Sale.
On the
basis of the representations and warranties, and subject to the terms and
conditions set forth in this agreement (this “Agreement”),
the
Underwriters (defined below) shall purchase from Western Massachusetts Electric
Company (the “Company”),
severally and not jointly, and the Company shall sell to the Underwriters,
the
principal amount of the Company’s [__]% Senior Notes, Series [__], Due [____],
set forth opposite the name of the Underwriters in Schedule I hereto at the
price specified in Schedule II hereto (the aggregate principal amount of
the
notes described in Schedule II hereto are hereinafter referred to as the
“Notes”).
2.
Underwriters.
The term
“Underwriters”,
as
used herein, shall be deemed to mean [_____] (the “Representative”) and the
other several persons, firms or corporations named in Schedule I hereto
(including all substituted Underwriters under the provisions of Section 10
hereof). All obligations of the Underwriters hereunder are several and not
joint.
3.
Representations
and Warranties.
The
Company represents and warrants to and agrees with the Underwriters
that:
(a)
The
Company meets the requirements for the use of Form S-3 under the Securities
Act
of 1933, as amended (the “Securities
Act”) and
has
filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement (Registration Statement No. 333-[______]), including
a
prospectus, relating to $-[______] principal amount of senior notes, including
the Notes, and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the “Prospectus
Supplement”)
specifically relating to the Notes pursuant to Rule 424 under the Securities
Act. The term “Registration
Statement”
means
the registration statement, including the exhibits thereto, as amended to
the
date of this Agreement. The term “Base
Prospectus”
means
the prospectus included in the Registration Statement. The term “Prospectus”
means
the Base Prospectus together with the Prospectus Supplement. The term “preliminary
prospectus”
means
the preliminary prospectus supplement, dated [_____], [___], relating to
the
Notes, together with the Base Prospectus. As used herein, the terms “Base
Prospectus,”“Prospectus” and “preliminary prospectus” shall include in each case
the documents, if any, incorporated by reference therein. The terms
“supplement,”“amendment”
and
“amend”
as used
herein shall include all documents deemed to be incorporated by reference
in the
Prospectus that are filed subsequent to the date of the Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934,
as
amended (the “Exchange
Act”).
(b)
The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, no order directed
to
the adequacy of any document incorporated by reference in the Prospectus
has
been issued by the Commission and no proceedings for either such purpose
are
pending before or threatened by the Commission.
(c)
(i)
Each
document filed or to be filed pursuant to the Exchange Act and incorporated
by
reference in the preliminary prospectus or 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, (ii) each part of the
Registration Statement, when such part became effective, did not contain,
and
each such part, 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,
(iii) 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 applicable rules and regulations of the Commission
thereunder and (iv) the preliminary prospectus as of its date did not, and
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 paragraph do not apply (A)
to
that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification on Form T-1 (the “Form
T-1”)
under
the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”),
of
The Bank of New York (the “Trustee”)
or (B)
statements or omissions made in reliance upon and in conformity with information
furnished in writing by or on behalf of any Underwriter expressly for use
in
connection with the preparation of the Registration Statement, preliminary
prospectus or Prospectus.
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(d)
The
Company has been duly formed, is validly existing as a Massachusetts corporation
in good standing under the laws of Massachusetts, 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. The Company possesses such material certificates,
authorizations, franchises or permits issued by the appropriate state or
federal
regulatory authorities or bodies as are necessary to conduct its business
as
currently conducted.
(e)
The
Company has no subsidiaries other than WMECO Funding LLC. WMECO Funding LLC
possesses such material certificates, authorizations, franchises or permits
issued by the appropriate state or federal regulatory authorities or bodies
as
are necessary to conduct its business as currently conducted.
(f)
This
Agreement has been duly authorized, executed and delivered by the
Company.
(g)
The
Indenture dated as of September 1, 2003 between the Company and The Bank
of New
York, as trustee, as supplemented and previously amended by various supplemental
indentures and as to be supplemented by the [_____], [___] Supplemental
Indenture, to be dated as of [_____], [___], establishing the terms of the
Notes
(the “Indenture”)
has
been duly qualified under the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of
the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
general principles of equity.
(h)
The
Notes
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be entitled
to
the benefits of the Indenture, and will be valid and binding obligations
of the
Company, in each case enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity.
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(i)
The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Notes will not
contravene any provision of applicable law or the Articles of Organization
or
By-Laws of the Company or any agreement or other instrument binding upon
the
Company that is material to the Company, or any judgment, order or decree
of any
governmental body, agency or court having jurisdiction over the Company,
and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of
its obligations under this Agreement, the Indenture or the Notes, except
for (i)
the order issued by the Massachusetts Department of Telecommunications and
Energy in Docket No. [___] on [_____], [___] (the “DTE Order”) and (ii) the
post-closing filing on Form U-6B-2 required to be made with the Commission
pursuant to the Public Utility Holding Company Act of 1935 (the “1935 Act
Filing”) such as have been obtained under the Securities Act and such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes. The DTE Order is in full force and
effect
and is sufficient to authorize the Company to issue the Notes and to perform
its
obligations under the Notes, the Indenture, and this Agreement and is final
and
not subject to rehearing or appeal. The 1935 Act Filing, when made, will
comply
with the applicable rules and regulations of the Commission.
(j)
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, from that set
forth
in the Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(k)
There
are
no legal or governmental proceedings pending or threatened to which the Company
is a party or to which any of the properties of the Company 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.
(l)
Each
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under
the Securities Act, complied when so filed in all material respects with
the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
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(m)
The
Company is not and, after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus,
will
not be an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended.
(n)
Except
as
disclosed in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), there are no costs or liabilities
associated 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
contaminants (“Environmental
Laws”)
(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) which would, singly or in the
aggregate, have a material adverse effect on the Company.
(o)
The
Company maintains systems of internal accounting controls and processes
sufficient to provide reasonable assurance that (i) transactions are executed
in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles; and
(iii) assets are safeguarded from loss or unauthorized use. The Company
evaluated the design and operation of their disclosure controls and procedures
to determine whether they are effective in ensuring that the disclosure of
required information is timely made in accordance with the Exchange Act and
the
rules and forms of the Commission. These evaluations were made under the
supervision and with the participation of management, including the principal
executive officer and principal financial officer of the Company, within
the
90-day period prior to the filing of the most recent Quarterly Report on
Form
10-Q. The principal executive officer and principal financial officer have
concluded, based on their review, that the disclosure controls and procedures,
as defined by Exchange Act Rules 13a-15(e) and 15(d)-14(c), are effective
to
ensure that information required to be disclosed by the Company in reports
that
it files under the Exchange Act is recorded, processed, summarized, and reported
within the time periods specified in Commission rules and forms. No significant
changes were made to the Company's internal controls or other factors that
could
significantly affect these controls subsequent to the date of their
evaluation.
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(p)
The
financial statements and the related notes thereto incorporated by reference
in
the Registration Statement and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act,
as
applicable, and present fairly the financial position of the Company and
its
subsidiaries as of the dates indicated and the results of their operations
and
the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby,
and the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the other financial information included or incorporated by
reference in the Registration Statement and the Prospectus has been derived
from
the accounting records of the Company and its subsidiaries and presents fairly
the information shown thereby.
(q)
Deloitte
and Touche LLP, who have certified certain financial statements of the Company
and its subsidiaries, are independent registered public accountants with
respect
to the Company and its subsidiaries as required by the Securities
Act.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Notes shall be deemed a representation and warranty by the Company,
as to
matters covered thereby, to each Underwriter.
4.
Terms
of Public Offering.
The
Company is advised by the Underwriters that they propose to make a public
offering of the Notes as soon after this Agreement has been entered into
as in
the judgment of the Representative is advisable. The terms of the public
offering of the Notes are set forth in the Prospectus.
5.
Payment
and Delivery.
Except
as otherwise provided in this Section 5, payment for the Notes shall be made
to
the Company in Federal or other funds immediately available at the time (the
“Closing
Date”)
and
place set forth in Schedule II hereto, upon delivery to the Representative
of
the Notes, in fully registered global form registered in the name of Cede
&
Co., for the respective accounts of the several Underwriters of the Notes
registered in such names and in such denominations as the Representative
shall
request in writing not less than the business day immediately preceding the
date
of delivery, with any transfer taxes payable in connection with the transfer
of
the Notes to the Underwriters duly paid. Delivery of the Notes shall be made
through the facilities of The Depository Trust Company unless the Representative
shall otherwise instruct.
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6.
Conditions
to the Underwriters’ Obligations.
The
obligations of the Underwriters are subject to the following
conditions:
(a)
Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i)
there
shall not have occurred any downgrading or withdrawal, nor shall any notice
have
been given of any intended or potential downgrading or withdrawal or of
any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded 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;
(ii)
no
stop
order suspending the effectiveness of the Registration Statement has been
issued
and no proceedings for that purpose have been instituted or, to the Company’s
knowledge, threatened; and
(iii)
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, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Representative, is material and adverse
and that makes it, in the judgment of the Representative, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Notes on the
terms and in the manner contemplated in the Prospectus.
(b)
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 Section 6(a)(i) and (ii) above and to the effect that the
representations and warranties of the Company contained in this Agreement
are
true and correct as of the Closing Date and that the Company has complied
with
all of the agreements and satisfied all of the conditions on its part to
be
performed or satisfied hereunder on or before the Closing Date.
The
officer signing and delivering such certificate may rely upon the best of
his or
her knowledge as to proceedings threatened.
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(c)
At
the
Closing Date, the Notes shall be rated at least [___] by S&P, [___] by
▇▇▇▇▇’▇ and [___] by Fitch, and the Company shall have delivered to the
Underwriters a letter, dated the Closing Date, from each such rating agency,
or
other evidence reasonably satisfactory to the Underwriters, confirming
that the
Notes have been assigned such ratings;
(d) The
Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇, Esq., Assistant General Counsel of Northeast Utilities Service Company,
dated the Closing Date, to the effect that:
(i)
the
Company has been duly formed, is validly existing as a Massachusetts corporation
in good standing under the laws of Massachusetts, 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; the Company possesses such material certificates,
authorizations, franchises or permits issued by the appropriate state or
federal
regulatory authorities or bodies as are necessary to conduct its business
as
currently conducted;
(ii)
this
Agreement has been duly authorized, executed and delivered by the
Company;
(iii)
the
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity;
(iv)
the
Notes
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be entitled
to
the benefits of the Indenture, and will be valid and binding obligations
of the
Company, in each case enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity;
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(v)
(A)
the
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Notes will not
contravene any provision of applicable law or the Articles of Organization
or
By-Laws of the Company or, to the best of such counsel’s knowledge, any
agreement or other instrument binding upon the Company that is material to
the
Company, or, to the best of such counsel’s knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the
Company, and (B) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture and the Notes, except the DTE Order, such as have been obtained
under
the Securities Act and such as may be required by the securities or Blue
Sky
laws of the various states in connection with the offer and sale of the Notes.
The DTE Order is in full force and effect and is sufficient to authorize
the
Company to issue the Notes and to perform its obligations under the Notes,
the
Indenture, and this Agreement and is final and not subject to rehearing or
appeal;
(vi)
the
statements (A) in the Prospectus under the captions “Description of the Senior
Notes,”“Underwriting” and “Description of the Series [__] Notes,” (B) in the
Registration Statement under Item 15, (C) in “Item 3 - Legal Proceedings” of the
Company’s most recent annual report on Form 10-K incorporated by reference in
the Prospectus and (D) in “Item 1 - Legal Proceedings” of Part II of the
Company’s quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly present
the
information called for with respect to such legal matters, documents and
proceedings as of the dates of such reports and fairly summarize the matters
referred to therein as of the dates of such reports;
(vii)
after
due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company is a party or to which any of
the
properties of the Company is subject that are required to be described in
the
Registration Statement or the Prospectus and are not so described or of 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;
9
(viii)
the
Company is not and, after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus,
will
not be an “investment company” as such term is defined in the Investment Company
Act of 1940, as amended;
(ix)
except
as
disclosed in the Prospectus, the Company (A) is in compliance with any and
all
applicable Environmental Laws, (B) has received all permits, licenses or
other
approvals required of it under applicable Environmental Laws to conduct its
business and (C) is 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, have a material adverse
effect
on the Company;
(x)
the
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, no order directed
to
the adequacy of any document incorporated by reference in the Prospectus
has
been issued by the Commission and no proceedings for either such purpose
are
pending before or threatened by the Commission;
(xi)
such
counsel (A) is of the opinion that each document, if any, filed pursuant
to the
Exchange Act and incorporated by reference in the Prospectus and any amendment
to the Prospectus (except for financial statements, schedules and other
financial or statistical data contained or incorporated by reference in the
Registration Statement or Prospectus or any amendment to the Prospectus,
as to
which such counsel need not express any opinion) complied when so filed as
to
form in all material respects with the Exchange Act and the applicable rules
and
regulations of the Commission thereunder, (B) has no reason to believe that
(except for financial statements, schedules and other financial or statistical
data contained or incorporated by reference in the Registration Statement
or
Prospectus or any amendment or supplement to the Prospectus, as to which
such
counsel need not express any belief and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each part
of the
Registration Statement, when such part became effective, contained and, as
of
the date such opinion is delivered, contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (C) is of the
opinion that the Registration Statement and Prospectus as they may be amended
or
supplemented (except for financial statements, schedules and other financial
or
statistical data contained or incorporated by reference in the Registration
Statement or Prospectus or any amendment or supplement to the Prospectus,
as to
which such counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no reason to believe
that
(except for financial statements, schedules and other financial or statistical
data contained or incorporated by reference in the Registration Statement
or
Prospectus or any amendment or supplement to the Prospectus, as to which
such
counsel need not express any belief) the Prospectus as it may be amended
or
supplemented, as of its date and as of the date such opinion is delivered
contain any untrue statement of a material fact or omit 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.
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Insofar
as ▇▇. ▇▇▇▇▇▇’▇ opinion relates to matters governed by the law of the
Commonwealth of Massachusetts, he may rely on the opinion of even date therewith
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Counsel of Northeast Utilities, addressed to
him.
The foregoing opinion shall be addressed to or shall allow the Underwriters
to
rely on such opinion as if they were an addressee thereto.
(e) The
Underwriters shall have received from Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
special counsel for the Underwriters, an opinion dated the Closing Date and
addressed to the Underwriters, with respect to the issuance and sale of the
Notes, the Indenture, the Registration Statement, the Prospectus (together
with
any supplement thereto) and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such counsel
such
documents as they request for the purpose of enabling them to pass upon such
matters.
Such
counsel shall also state that it has no reason to believe that (except for
financial statements, schedules and other financial or statistical data
contained or incorporated by reference in the Registration Statement or
Prospectus, as to which such counsel need not express any belief) the Prospectus
as of the date such opinion is delivered contains any untrue statement of
a
material fact 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. Such counsel (and counsel to the Company with respect
to
Section 6(d)(xi)(D) above) may state that its belief is based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein
by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
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The
opinion(s) of Counsel described in Section 6(d) above shall be rendered to
the
Underwriters at the request of the Company and shall so state
therein.
(f)
The
Underwriters shall have received on the date hereof and on the Closing Date,
letters, the first dated the date hereof and the second dated the Closing
Date,
each in form and substance satisfactory to the Underwriters, from Deloitte
&
Touche LLP, containing 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 Prospectus.
If
any of the conditions specified in
this Section 6 shall not have been fulfilled when and as provided
in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in form
and
substance to the Representative and counsel for the Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or
at any
time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
7.
Covenants
of the Company.
In
further consideration of the agreements of the Underwriters herein contained,
the Company covenants with each Underwriter as follows:
(a) To
furnish the Representative, without charge, one (1) signed copy of the
Registration Statement (including exhibits thereto) and, for delivery to
each
other Underwriter, a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish the Representative in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section
7(c) below, as many copies of the preliminary prospectus, Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Representative may reasonably
request.
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(b) Before
amending or supplementing the Registration Statement, preliminary prospectus
or
the Prospectus with respect to the Notes, to furnish to the Representative
a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Representative reasonably
objects.
(c)
If,
during such period after the first date of the public offering of the Notes
as
in the opinion of counsel for the Underwriters the Prospectus is required
by law
to be delivered in connection with sales by an Underwriter or 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 applicable
law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to the Company) to which Notes may have been
sold by
the Representative on behalf of the Underwriters and to any other dealers
upon
request, 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 or supplemented, will comply
with law.
(d) To
endeavor to qualify the Notes for offer and sale under the securities or
Blue
Sky laws of such jurisdictions as the Representative shall reasonably request;
provided,
however,
that
the Company shall not be required to qualify as a foreign corporation or
to file
a consent to service of process or to file annual reports or to comply with
any
other requirements deemed by the Company in its reasonable judgment to be
unduly
burdensome.
(e) To
make
generally available to the Company’s security holders and to each of the
Underwriters as soon as practicable an earning statement covering a twelve
month
period beginning on the first day of the first full fiscal quarter after
the
date of this Agreement, which earning statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder (including, but not limited to, Rule 158 under the
Securities Act). If such fiscal quarter is the last fiscal quarter of the
Company’s fiscal year, such earning statement shall be made available not later
than 90 days after the close of the period covered thereby and in all other
cases shall be made available not later than 45 days after the close of the
period covered thereby.
13
(f) During
the period beginning on the date of this Agreement and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar
to the
Notes (other than (i) the Notes and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the
Representative.
(g) Whether
or not the transactions contemplated in this Agreement are consummated or
this
Agreement is terminated, to pay or cause to be paid all expenses incident
to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel and the Company’s
accountants in connection with the registration and delivery of the Notes
under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to
the
transfer and delivery of the Notes to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any
Blue
Sky or legal investment memorandum in connection with the offer and sale
of the
Notes under state law and all expenses in connection with the qualification
of
the Notes for offer and sale under state law as provided in Section 7(d)
hereof,
including filing fees and the reasonable fees and disbursements of counsel
for
the Underwriters not to exceed $10,000 in connection with such qualification
and
in connection with the Blue Sky or legal investment memorandum, (iv) the
fees
and disbursements of the Company’s accountants and the Trustee and its counsel,
(v) all filing fees and the reasonable fees and disbursements of counsel
to the
Underwriters incurred in connection with any review and qualification of
the
offering of the Notes by the National Association of Securities Dealers,
Inc.,
(vi) any fees charged by the rating agencies for the rating of the Notes
and
(vii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made
in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution”, and clause (b) of
Section 10 entitled “Defaulting Underwriters” below, the Underwriters will pay
all of their costs and expenses, including fees and disbursements of their
counsel, and any advertising expenses connected with any offers they may
make.
14
(h) The
Company will comply with all applicable securities and other applicable laws,
rules and regulations, including, without limitation, the Sarbanes Oxley
Act,
and will use its best efforts to cause the Company’s directors and officers, in
their capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes Oxley
Act.
(i)
The
Company will not take, directly or indirectly, any action designed to or
that
would constitute or that might reasonably be expected to cause or result
in,
under the Exchange Act or otherwise, stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of the
Notes.
8. Indemnity
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter 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 when and as incurred by them
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating 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 (as amended or supplemented if the Company shall
have furnished any amendments or supplements 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 furnished to the Company in writing
by
such Underwriter through the Representative expressly for use
therein.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement
and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same
extent as the foregoing indemnity from the Company to such Underwriter, but
only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly
for
use in the Registration Statement, any preliminary prospectus, the Prospectus
or
any amendments or supplements thereto.
15
(c) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant
to
either Section 8(a) or 8(b), such person (the “indemnified
party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”)
in
writing (but the omission so to notify the indemnifying party under this
subsection shall not relieve it from any liability which it otherwise might
have
to an indemnified party otherwise than under this subsection) 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
both the indemnifying party and the indemnified party and representation
of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party has not
retained counsel within a reasonable period of time after the request by
the
indemnified party to do so. It is understood that the indemnifying party
shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to
any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Representative, in the case of parties indemnified pursuant
to
Section 8(a) above, and by the Company, in the case of parties indemnified
pursuant to Section 8(b) above. 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. 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.
16
(d) To
the
extent the indemnification provided for in Section 8(a) or 8(b) is unavailable
to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party
under
such paragraph, 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 on the
one
hand and the Underwriters on the other hand from the offering of the Notes
or
(ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the relative
fault of each indemnifying party on the one hand and each indemnified party
on
the other hand in connection with the statements or omissions that resulted
in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the
one hand and the Underwriters on the other hand in connection with the offering
of the Notes shall be deemed to be in the same respective proportions as
the net
proceeds from the offering of such Notes (before deducting expenses) received
by
the Company and the total underwriting discounts and commissions received
by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Notes.
The relative fault of each indemnifying party on the one hand and each
indemnified party on the other hand 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 such indemnifying party or by such indemnified party
and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Notes they have purchased hereunder,
and
not joint.
(e)
The
Company and the Underwriters agree that it would not be just or equitable
if
contribution pursuant to this Section 8 were determined by pro
rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account
of the
equitable considerations referred to in Section 8(d). The amount paid or
payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph 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 8, no Underwriter shall be required to contribute
any
amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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 8 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.
17
(f)
The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained
in
this Agreement shall remain operative and in full force and effect regardless
of
(i) any termination of this Agreement, (ii) any investigation made by or
on
behalf of any Underwriter or any person controlling any Underwriter or the
Company, its officers or directors or any person controlling the Company
and
(iii) acceptance of and payment for any of the Notes.
9.
Termination.
This
Agreement shall be subject to termination by notice given by the Representative
to the Company, if (a) after the execution and delivery of this Agreement
and on
or 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 of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade or there shall have been established
by
any of such exchanges or by the Commission or by any federal or state agency
or
by the decision of any court, any general limitation on prices for such trading
or any general restrictions on the distribution of securities, (ii) trading
of
any securities of the Company or Northeast Utilities 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, (iv) there shall have occurred any
(A)
outbreak of hostilities affecting the United States, or (B) other national
or
international calamity or crisis, or any material adverse change in financial,
political or economic conditions affecting the United States, including,
but not
limited to, an escalation of hostilities that existed prior to the date of
this
Agreement, or (v) there shall have occurred any material disruption in
commercial banking securities settlement or clearance services and (b) in
the
case of any of the events specified in clauses 9(a)(i) through 9(a)( v),
such
event, singly or together with any other such event, makes it impracticable
or
inadvisable, in the judgment of the Representative, to proceed with the offer,
sale or delivery of the Notes on the terms and in the manner contemplated
in the
Prospectus.
10.
Defaulting
Underwriters.
(a) If,
on the Closing Date, any one or more of the Underwriters shall fail or refuse
to
purchase the Notes set forth opposite the name of such Underwriter or
Underwriters in Schedule I hereto that it has or they have agreed to purchase
hereunder on such date, and the aggregate amount of such Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate amount of the Notes of such
Underwriter or Underwriters to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of such Notes
set forth opposite their respective names in Schedule I hereto bears to the
aggregate amount of such Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representative
may specify, to purchase the Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in
no event shall the amount of the Notes that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section
10 by
an amount in excess of one-ninth of such amount of such Notes without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or
Underwriters shall fail or refuse to purchase such Notes and the aggregate
amount of such Notes with respect to which such default occurs is more than
one-tenth of the aggregate amount of such Notes to be purchased on such date,
and arrangements satisfactory to the Representative and the Company for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Representative or
the
Company shall have the right to postpone the Closing Date, but in no event
for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not
relieve any defaulting Underwriter from liability in respect of any default
of
such Underwriter under this Agreement.
18
(b)
If this Agreement shall be terminated by the Underwriters because
any
condition to the obligation of the Underwriters set forth in Section 6 hereof
is
not satisfied, because of any termination pursuant to Section 9 hereof or
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 Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters for all out of pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement or the offering
contemplated hereunder.
11.
Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 8 and 10(b) hereof shall
survive the termination or cancellation of this Agreement
19
12.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representative, will be mailed, delivered or telefaxed to
[_____],[_____],[_____], Attention: [_____] (Facsimile: [_____]); or, if
sent to
the Company, will be mailed, delivered or telefaxed to Western Massachusetts
Electric Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Assistant Treasurer
(Facsimile:
860-665-3258)
13.
Counterparts.
This
Agreement may be signed in two or more counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
14.
Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
15. Headings.
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
20
Please
confirm your agreement by having an authorized officer sign a copy of this
Agreement in the space set forth below.
|
Very
truly yours,
|
||
|
[_____]
|
||
|
[_____]
|
||
|
[_____]
|
||
|
By:
[_____]
|
||
|
By:
|
_____________________________ | |
|
Name:
|
||
|
Title:
|
||
Accepted
and agreed:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
|
By:
|
_____________________________ | |
|
|
Name: | |
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Title: | |
SCHEDULE
I
|
Underwriters
|
Principal
Amount of Notes
|
|
[_____]
|
$[_____]
|
|
[_____]
|
[_____]
|
|
[_____]
|
[_____]
|
|
Total
|
$[_____]
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SCHEDULE
II
Underwriting
Agreement dated [_____], [___]
Registration
Statement No. 333-[_____], [___]
Lead
Underwriter and Address:
[_____]
[_____],
[___]
[_____],
[___]
|
Designation:
|
Senior
Notes, Series [__], Due [____]
|
|
Principal
Amount:
|
$[_____]
|
| Date of Maturity: | [_____], [___] |
|
Interest
Rate:
|
[_____]%
|
|
Interest
Payment Dates:
|
[_____]
and [_____] of each year, commencing
[____]
|
|
Record
Dates:
|
The
business day prior to each interest payment date if the Notes remain
in
book-entry only form or the fifteenth calendar day before each
interest
payment date if the Notes do not remain in book-entry only
form
|
|
Purchase
Price:
|
[_____]%
of the principal amount thereof
|
|
Public
Offering Price:
|
[_____]%
of the principal amount thereof, plus accrued interest, if any,
from the
date of original issuance thereof
|
|
Closing
Date and Location:
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[_____],
[___]
|
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Pillsbury
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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