EXHIBIT 99.1
EXECUTION COPY
WESTERN MASSACHUSETTS ELECTRIC COMPANY
UNDERWRITING AGREEMENT
September 25, 2003
Western Massachusetts Electric Company
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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 A, Due
2013, 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 Barclays Capital Inc.
("Barclays") 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 has filed with the
Securities and Exchange Commission (the
"Commission") a registration statement
(Registration Statement No. 333-108712), including
a prospectus, relating to $110,000,000 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 "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 September 25, 2003, 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 Base
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 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 financial statements and schedules,
other financial or statistical data contained or
incorporated by reference in the Registration
Statement or Prospectus or (B) 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 (C)
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 or
Prospectus.
(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 amended by various
supplemental indentures and as to be supplemented
by the First Supplemental Indenture, to be dated
as of September 1, 2003, 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.
(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 the order issued by the Massachusetts
Department of Telecommunications and Energy in
Docket No. 02-49 on June 27, 2003 (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.
(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.
(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-
14(c) 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
SEC 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.
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
Barclays 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 Barclays 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 Barclays 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.
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; 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, 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 Barclays, is
material and adverse and that makes it, in
the judgment of Barclays, impracticable to
market 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) 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.
(c) At the Closing Date, the Notes shall
be rated at least BBB+ by S&P, A3 by ▇▇▇▇▇'▇ and
BBB+ 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;
(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 A 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;
(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; and
(x) 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, 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 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, 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 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, 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 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, 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.
(e) The Underwriters shall have received on
the Closing Date an opinion of Pillsbury Winthrop
LLP, special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to
in Sections 6(d)(ii), 6(d)(iii), 6(d)(iv) and
6(d)(vi) (but only as to the statements in the
Prospectus under "Description of the Senior
Notes," "Underwriting" and "Description of the
Notes,") and clauses 6(d)(x)(B), 6(d)(x)(C) and
6(d)(x)(D) above.
With respect to Section 6(d)(xi) above,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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.
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 Service Company,
addressed to him and the Underwriters. With
respect to clauses 6(d)(x)(B), 6(d)(x)(C) and
6(d)(x)(D) above, Pillsbury Winthrop LLP may state
that its opinion and belief is based upon its
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 opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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.
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 Barclays, 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 Barclays 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 and any supplements and
amendments thereto or to the Registration
Statement as Barclays may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus with
respect to the Notes, to furnish to Barclays a
copy of each such proposed amendment or supplement
and not to file any such proposed amendment or
supplement to which Barclays 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 Barclays will furnish
to the Company) to which Notes may have been sold
by Barclays 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 Barclays 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. 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.
(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 Barclays.
(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 the
last paragraph 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.
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 Barclays 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
Barclays 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 (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
Barclays, 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.
(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.
(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 Barclays 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 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 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 Barclays, to market the Notes on the
terms and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters. 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 Barclays 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 Barclays 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 Barclays 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.
If this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the
part of the Company to comply with the terms or to
fulfill any of the conditions of this 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. 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.
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.
Please confirm your agreement by having an
authorized officer sign a copy of this Agreement in the
space set forth below.
Very truly yours,
BARCLAYS CAPITAL INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
TD SECURITIES (USA) INC.
By: BARCLAYS CAPITAL INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Accepted and agreed:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer - Finance
SCHEDULE I
Underwriters Principal Amount of
Notes
Barclays Capital Inc. $ 33,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 11,000,000
TD Securities (USA) Inc. 11,000,000
TOTAL $ 55,000,000
SCHEDULE II
Underwriting Agreement dated September 25, 2003
Registration Statement No. 333- 108712
Lead Underwriter and Address:
Barclays Capital Inc.
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Designation: Senior Notes, Series A, Due 2013
Principal Amount: $55,000,000
Date of Maturity: September 1, 2013
Interest Rate: 5.00%
Interest Payment Dates: March 1 and September 1 of
each year, commencing March 1, 2004
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: 98.752% of the principal amount
thereof
Public Offering Price: 99.402% of the principal
amount thereof, plus accrued
interest, if any, from the date of
original issuance thereof
Closing Date and Location: September 30, 2003
Pillsbury Winthrop LLP
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