1
EXHIBIT 1
NORTHEAST UTILITIES
UNDERWRITING AGREEMENT
February [__], 2001
Northeast Utilities
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
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 Underwriter (defined below) shall purchase from
Northeast Utilities (the "COMPANY"), and the Company shall sell to the
Underwriter, the principal amount of the Company's Notes due [__________], 2003,
set forth opposite the name of the Underwriter 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. Underwriter. The term "UNDERWRITER", as used herein, shall be
deemed to mean Xxxxxx Xxxxxxx & Co. Incorporated.
3. Representations and Warranties. The Company represents and
warrants to and agrees with the Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (Registration
Statement No. 333-[_____]), including a prospectus, relating to
$600,000,000 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 of
1933, as amended (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 "BASIC
PROSPECTUS" means the prospectus included in the Registration
Statement. The term "PROSPECTUS" means the Basic Prospectus together
with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement specifically relating to the Notes,
together with the Basic Prospectus. As used herein, the terms "Basic
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 Basic
Prospectus by the Company with the
2
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 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 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 statements or omissions in the Registration Statement
or the Prospectus based upon information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for
use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), of The
Bank of New York (the "TRUSTEE").
(d) The Company has been duly formed, is validly existing as a
Massachusetts voluntary association 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 and its subsidiaries,
taken as a whole. 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.
-2-
3
(e) Each majority-owned subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate 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;
all of the issued shares of capital stock of each such subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims. Each such
subsidiary 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 pursuant to which the Notes are being issued
(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 Underwriter 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.
(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 Declaration of Trust of the Company or 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 any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, 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 such as have been obtained under the
Securities
-3-
4
Act and the Public Utility Holding Company Act of 1935 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.
(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 and its subsidiaries, taken as a whole, 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 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.
(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.
(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 and its subsidiaries,
taken as a whole.
4. Terms of Public Offering. The Company is advised by the
Underwriter that it proposes to make a public offering of the Notes as soon
after this Agreement has been
-4-
5
entered into as in the judgment of the Underwriter 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 Xxxxxx Xxxxxxx & Co. Incorporated of the
Notes, in fully registered global form registered in the name of Cede & Co., for
the respective accounts specified by Xxxxxx Xxxxxxx & Co. Incorporated 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 Underwriter duly paid.
6. Conditions to the Underwriter's Obligations. The obligations of the
Underwriter 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,
nor shall any notice have been given of any intended or
potential downgrading 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; and
(ii) 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 (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the judgment of Xxxxxx Xxxxxxx & Co.
Incorporated, is material and adverse and that makes it, in
the judgment of Xxxxxx Xxxxxxx & Co. Incorporated,
impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriter 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) 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.
-5-
6
(c) The Underwriter shall have received on the Closing Date an
opinion of Xxxxxxx X. Xxxxxx, 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 voluntary association 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 and
its subsidiaries, taken as a whole; 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) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate 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; each subsidiary of 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;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) 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;
(v) the Notes have been duly authorized and executed,
when authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, will be entitled
to the benefits of the Indenture, and will
-6-
7
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;
(vi) (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 Declaration
of Trust of the Company or, to the best of such counsel's
knowledge, 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, 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 or any subsidiary, 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 such as have
been obtained from the Commission under the Securities Act and
the Public Utility Holding Company Act of 1935 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;
(vii) the statements (A) in the Prospectus under the
captions "Description of [Debt Securities]," "Plan of
Distribution" and "[_______]," (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 and
fairly summarize the matters referred to therein;
(viii) after due inquiry, such counsel does not know of
any 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 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;
-7-
8
(ix) 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;
(x) except as disclosed in the Prospectus, the
Company and its subsidiaries (A) are in compliance with any
and all applicable Environmental Laws, (B) have received all
permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and (C)
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, have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
and
(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 (except for
financial statements and schedules included therein 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 and schedules 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 (except
for financial statements and schedules included therein 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 and schedules 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.
(d) The Underwriter shall have received on the Closing Date an
opinion of Day, Xxxxx & Xxxxxx LLP, counsel for the Company, dated the
Closing Date, covering the matters referred to in Sections 6(c)(iii),
6(c)(iv), 6(c)(v) and 6(c)(ix)
-8-
9
and clauses 6(c)(vi)(A) (as to the Company's Declaration of Trust),
6(c)(vi)(B), 6(c)(vii)(A), 6(c)(vii)(B), 6(c)(xi)(B), 6(c)(xi)(C) and
6(c)(xi)(D) above.
(e) The Underwriter shall have received on the Closing Date an
opinion of Pillsbury Winthrop LLP, special counsel for the Underwriter,
dated the Closing Date, covering the matters referred to in Sections
6(c)(iii), 6(c)(iv), 6(c)(v) and 6(c)(vii) (but only as to the
statements in the Prospectus under "Description of [Debt Securities]",
"Plan of Distribution" and "[__________]") and clauses 6(c)(xi)(B),
6(c)(xi)(C) and 6(c)(xi)(D) above.
With respect to Section 6(c)(xi) above, Xxxxxxx X. Xxxxxx,
Esq. may state that his opinion and belief are based upon his
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. With respect to clauses 6(c)(xi)(B), 6(c)(xi)(C)
and 6(c)(xi)(D) above, Day, Xxxxx & Xxxxxx LLP and Pillsbury Winthrop
LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion
of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except
as specified.
The opinions of Xxxxxxx X. Xxxxxx, Esq. and Day, Xxxxx &
Xxxxxx LLP described in Section 6(c) and 6(d) above shall be rendered
to the Underwriter at the request of the Company and shall so state
therein.
(f) The Underwriter shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriter, from the Company's independent public accountants,
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.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriter herein contained, the Company covenants with the Underwriter
as follows:
(a) To furnish Xxxxxx Xxxxxxx & Co. Incorporated, without
charge, [___] signed copies of the Registration Statement (including
exhibits thereto) and to furnish Xxxxxx Xxxxxxx & Co. Incorporated 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 Prospectus, any documents incorporated by reference therein
-9-
10
and any supplements and amendments thereto or to the Registration
Statement as Xxxxxx Xxxxxxx & Co. Incorporated may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Notes, to furnish to
Xxxxxx Xxxxxxx & Co. Incorporated a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which Xxxxxx Xxxxxxx & Co. Incorporated 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 Underwriter
the Prospectus is required by law to be delivered in connection with
sales by the Underwriter or a 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
Underwriter, 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 Underwriter and to
the dealers (whose names and addresses Xxxxxx Xxxxxxx & Co.
Incorporated will furnish to the Company) to which Notes may have been
sold by Xxxxxx Xxxxxxx & Co. Incorporated 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 Xxxxxx Xxxxxxx
& Co. Incorporated 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 Xxxxxx Xxxxxxx & Co. Incorporated 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. 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.
-10-
11
(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 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 Xxxxxx Xxxxxxx & Co. Incorporated.
(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 Underwriter and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Notes to the Underwriter, 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 Underwriter
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 counsel and accountants and of
the Trustee and its counsel, (v) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriter 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 Section 10 entitled "Expenses" below, the
Underwriter will pay all of its costs and expenses, including fees and
disbursements of its counsel, and any advertising expenses connected
with any offers it may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
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 (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
-11-
12
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 the
Underwriter furnished to the Company in writing by the Underwriter expressly for
use therein.
(b) The Underwriter agrees 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 the Underwriter, but only with reference
to information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(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 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. 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 Xxxxxx Xxxxxxx & Co. Incorporated, 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,
-12-
13
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.
(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 Underwriter 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 the Company on the one hand and of
the Underwriter 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 Underwriter 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 Underwriter, 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 the Company on the one hand
and the Underwriter 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 the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation 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, the Underwriter shall not 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 the 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
-13-
14
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.
(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 the Underwriter or any person controlling
the 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 Xxxxxx Xxxxxxx & Co. Incorporated to the Company, if (a) after
the execution and delivery of this 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 of 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 Xxxxxx Xxxxxxx & Co.
Incorporated, is material and adverse and (b) in the case of any of the events
specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or together
with any other such event, makes it, in the judgment of Xxxxxx Xxxxxxx & Co.
Incorporated, impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus.
10. Expenses. If this Agreement shall be terminated by the Underwriter
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 Underwriter for all out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by the Underwriter in connection with this Agreement or the offering
contemplated hereunder.
11. 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.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
-14-
15
13. 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.
14. No Shareholder Liability. The Declaration of Trust of the Company
provides that no shareholder of the Company shall be held to any liability
whatever for the payment of any sum of money, or for damages or otherwise, under
any contract, obligation or undertaking made, entered into or issued by the
trustees of the Company or by any officer, agent or representative elected or
appointed by the trustees of the Company and no such contract, obligation or
undertaking shall be enforceable against the trustees of the Company or any of
them in their or his individual capacities or capacity and all such contracts,
obligations and undertakings shall be enforceable only against the trustees of
the Company as such, and every person, firm, association, trust and corporation
having any claim or demand arising out of any such contract, obligation or
undertaking shall look only to the trust estate for the payment or satisfaction
thereof.
-15-
16
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-------------------------------------
Name:
Title:
Accepted:
NORTHEAST UTILITIES
By:
-------------------------------
Name:
Title:
17
SCHEDULE I
Underwriter Principal Amount of Notes
Xxxxxx Xxxxxxx & Co. Incorporated $[______________]
TOTAL.......... $[______________]
18
SCHEDULE II
Underwriting Agreement dated February [__], 2001
Registration Statement No. 333-[_______]
Underwriter and Address:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Designation: [Senior Notes, Floating Rate Series Due
_________, 2003]
Principal Amount: $[___________]
Date of Maturity: [__________], 2003
Interest Rate: Floating rate equal to [_________]
Interest Payment Dates: [__________] and [_________] of each year,
commencing [___________], 2001
Record Dates: [_________] and [_________], commencing
[__________], 2001
Purchase Price: [________]% of the principal amount thereof,
plus accrued interest, if any, from the date
of original issuance thereof
Public Offering Price: [________]% of the principal amount thereof,
plus accrued interest, if any, from the date
of original issuance thereof
Redemption Terms: Redeemable in whole at any time or in part
from time to time prior to maturity at the
option of the Company at the outstanding
principal amount thereof, together with
accrued and unpaid interest, if any
Closing Date and Location: [___________], 2001
Pillsbury Winthrop LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
