SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 13, 1995
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Commission File Number 1-11419
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THE CONNECTICUT LIGHT AND POWER COMPANY
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(Exact name of registrant as specified in its charter)
CONNECTICUT 06-0303850
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(State of other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
SELDEN STREET, BERLIN, CONNECTICUT 06037-1616
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(Address of principal executive officers) (Zip Code)
(203) 665-5000
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name of former address, if changed since last report)
Item 5. Other Events.
On January 13, 1995, The Connecticut Light and Power Company executed an
Underwriting Agreement related to a portion of the Monthly Income Preferred
Securities registered under Securities and Exchange Commission File No. 33-
56537.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
Exhibit
Number Description
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1 Underwriting Agreement
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE CONNECTICUT LIGHT AND POWER COMPANY
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Registrant
Date January 18, 1995 By /s/ John B. Keane
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John B. Keane
Vice President, Treasurer and Director
EXHIBIT 1
CL&P CAPITAL, L.P.
Preferred Securities
representing limited partner interests
guaranteed to the extent described in
the applicable Pricing Agreement
by The Connecticut Light and Power Company
Underwriting Agreement
January 13, 1995
Goldman, Sachs & Co.
Salomon Brothers Inc
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004.
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Ladies and Gentlemen:
From time to time CL&P Capital, L.P. ("CL&P Capital"), a limited
partnership formed under the laws of the State of Delaware, as issuer, and
The Connecticut Light and Power Company, a Connecticut corporation, as
guarantor (the "Guarantor"), each proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement
(such firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain preferred securities
representing limited partner interests in CL&P Capital (liquidation
preference $25 per preferred partner interest) (the "Preferred Securities")
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Designated Preferred Securities"), guaranteed by the
Guarantor as to the payment of distributions, to the extent CL&P Capital has
cash on hand sufficient to permit such payments and funds legally available
therefor, and as to payments on liquidation or redemption to the extent set
forth in the Prospectus (as defined below) with respect to such Preferred
Securities (the "Guaranty"). The Designated Preferred Securities and the
Guaranty are herein collectively referred to as the "Designated Securities".
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and
to Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as an
obligation of CL&P Capital to sell any of the Preferred Securities or as an
obligation of any of the Underwriters to purchase any of the Preferred
Securities. The obligation of CL&P Capital to issue and sell any of the
Preferred Securities and the obligation of any of the Underwriters to
purchase any of the Preferred Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate amount of Designated
Securities, the initial public offering price of such Designated Securities
or the manner of determining such price, the terms of the Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the amount of such
Designated Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Designated Securities, if any,
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Each of CL&P Capital and the Guarantor, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-56537) in respect
of the Preferred Securities, the Guaranty and the Junior Subordinated
Deferrable Interest Debentures of the Guarantor (the "Debt Securities") has
been filed with the Securities and Exchange Commission (the "Commission");
such registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, to
the Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act")
each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) under the Act,
is hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective but excluding Form T-1, each as amended at the time such part of
the registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the Preferred
Securities, the Guaranty and the Debt Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of CL&P
Capital and the Guarantor filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to CL&P Capital by an Underwriter of Designated Preferred Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Preferred Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to CL&P Capital by an Underwriter of
Designated Preferred Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such Preferred
Securities;
(d) Neither CL&P Capital, the Guarantor nor any of the Guarantor's
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Guarantor or any of its subsidiaries or any change in the capital
accounts or long-term debt of CL&P Capital or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting (i) the general affairs, management, financial position,
stockholders equity or results of operations of the Guarantor and its
subsidiaries or (ii) the general affairs, management, financial position,
capital accounts or results of operations of CL&P Capital, otherwise than as
set forth or contemplated in the Prospectus;
(e) CL&P Capital has been duly formed and is validly existing as a
limited partnership in good standing under the Delaware Revised Uniform
Limited Partnership Act, as amended (the "Partnership Act"); CL&P Capital has
no subsidiaries; CL&P Capital is a special purpose limited partnership as
described in the Prospectus and has conducted and will conduct no business
other than the transactions contemplated by this Agreement and described in
the Prospectus; CL&P Capital is not a party to or bound by any agreement or
instrument other than its limited partnership agreement (in the form filed as
an exhibit to the Registration Statement, the "Limited Partnership
Agreement") and, solely for the purposes stated in the recitals thereto, the
Indenture (as defined in subsection (p) below); CL&P Capital has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and described in the Prospectus; and CL&P
Capital is not a party to or subject to any action, suit or proceeding of any
nature;
(f) The Guarantor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Connecticut,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; the Guarantor has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification;
(g) The Guarantor has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of common stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by Northeast Utilities
("NU"), free and clear of all liens, encumbrances, equities or claims;
(h) The Preferred Securities have been duly and validly authorized,
and, when the Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will be duly and validly issued and
fully paid and non-assessable; the Preferred Securities conform in all
material respects to the description thereof contained in the Registration
Statement and the Designated Securities will conform in all material respects
to the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The Limited Partnership Agreement has been duly authorized by the
Guarantor and constitutes a valid and legally binding obligation of the
Guarantor, in its capacity as general partner of CL&P Capital, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(j) The Guarantor is the sole general partner of CL&P Capital;
Northeast Utilities Service Company, a Connecticut corporation, is the sole
Class A Limited Partner of CL&P Capital (the "Class A Limited Partner"); and
the Class A Limited Partner has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State of
Connecticut, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and all
of the issued general and limited partner interests of CL&P Capital are owned
by the Guarantor and the Class A Limited Partner, respectively, and have been
duly and validly authorized and validly issued, free and clear of all liens,
encumbrances, equities or claims;
(k) The issue and sale of the Preferred Securities and the compliance
by CL&P Capital and the Guarantor with all of the provisions of this
Agreement, any Pricing Agreement, the Indenture (as defined in subsection (p)
below) and the Guaranty, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which CL&P Capital or the Guarantor is a party or
by which CL&P Capital and the Guarantor is bound or to which any of the
property or assets of CL&P Capital or the Guarantor is subject, which
conflict, breach, violation or default would have a material adverse effect
on CL&P Capital or the Guarantor, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Guarantor or the Certificate of Limited Partnership of CL&P Capital or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over CL&P Capital or the Guarantor or any
of its properties, which violation would have a material adverse effect on
CL&P Capital or the Guarantor; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Preferred Securities or the consummation by the CL&P Capital or the Guarantor
of the transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture or the Guaranty, except such as have been, or will have been
prior to each Time of Delivery (as defined in Section 4 hereof), obtained
under the Act and the Trust Indenture Act, the approval of the Commission
under the Public Utility Holding Company Act of 1935, as amended (the
"Holding Company Act") and the approval of the Connecticut Department of
Public Utility Control (the "DPUC"), and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which CL&P Capital, the Guarantor or any
of the Guarantor's subsidiaries is a party or of which any of their
properties is subject, which, if determined adversely to CL&P Capital, the
Guarantor or any of the Guarantor's subsidiaries, as the case may be, would
individually or in the aggregate have a material adverse effect on (i) the
current or future financial position, capital accounts or results of
operations of CL&P Capital or (ii) the current or future consolidated
financial position, stockholders' equity or results of operations of the
Guarantor or any of its subsidiaries; and, to the best of CL&P Capital's and
the Guarantor's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(m) Neither the Guarantor nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws; CL&P Capital is not in
violation of its Certificate of Limited Partnership or the Limited
Partnership Agreement; and neither CL&P Capital, the Guarantor nor any of the
Guarantor's subsidiaries is in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its properties
may be bound;
(n) The statements set forth in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Subordinated
Debentures," and "Description of the Guaranty", insofar as they purport to
constitute a summary of the terms of the Preferred Securities, the Debt
Securities and the Guaranty, respectively, under the caption "United States
Taxation", and under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(o) Neither CL&P Capital nor the Guarantor is and, after giving effect
to the offering and sale of the Preferred Securities, neither will be an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) The Indenture to be dated as of January 1, 1995 between the
Guarantor and Bankers Trust Company, as trustee (the "Indenture") and the
Debt Securities to be issued thereunder, have been duly authorized; the
Indenture has been duly qualified under the Trust Indenture Act and, at the
Time of Delivery (as defined herein), will have been duly executed and
delivered and will constitute, and the Debt Securities, when duly executed
and authenticated in accordance with the Indenture and issued and delivered
under the circumstances provided in the Prospectus, as amended or
supplemented, will constitute, valid and legally binding obligations of the
Guarantor enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or similar
laws of general equity principles, and will conform in all material respects
to the descriptions thereof contained in the Registration Statement and the
Prospectus, as amended or supplemented;
(q) The Guaranty has been duly authorized and, when issued and
delivered by the Guarantor pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute a valid and
legally binding obligation of the Guarantor entitled to the benefits provided
by the Payment and Guaranty Agreement by the Guarantor to be dated
January , 1995 (the "Guaranty Agreement"); and the Guarantee will conform
in all material respects to the description thereof in the Prospectus;
(r) Neither CL&P Capital, the Guarantor, nor any of their affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(s) Arthur Andersen LLP, who have certified certain financial
statements of CL&P Capital and the Guarantor and the Guarantor's
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
(t) The Guarantor possesses such franchises, certificates, including
certificates of public convenience and necessity, authorities, permits and
easements issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it
and/or own, operate and maintain its properties as described in the
Prospectus, and it has not received notice of proceedings relating to the
revocation or modification of any such franchise, certificate, authority,
permit or easement which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Guarantor.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Certificates for the Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours prior notice to CL&P Capital, shall be delivered by or on
behalf of CL&P Capital to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks,
payable to the order of CL&P Capital in the funds specified in such Pricing
Agreement, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and CL&P Capital may agree upon in writing, such time and
date being herein called the "Time of Delivery".
5. Each of CL&P Capital and the Guarantor, jointly and severally,
agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission s close of business on the second business
day following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Preferred Securities and prior to any Time of Delivery for such Preferred
Securities which shall be disapproved by the Representatives for such
Preferred Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any Time
of Delivery for such Preferred Securities and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by CL&P Capital or the Guarantor
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Preferred Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Preferred Securities, of the suspension
of the qualification of such Preferred Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating to
the Preferred Securities or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Preferred Securities
for offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such Shares, provided
that in connection therewith neither CL&P Capital nor the Guarantor shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Preferred
Securities or the Debt Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Guarantor and the Guarantor's
subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and the rules and regulations of the Commission thereunder (including, at
the option of the Guarantor, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier of
(i) the date, after the Time of Delivery, on which the distribution of the
Designated Securities ceases, as determined by Goldman Sachs & Co., or (ii)
the date which is 90 days after the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any Designated Securities, any limited partner
interests of CL&P Capital or any preferred stock or any other securities of
CL&P Capital or the Guarantor that are substantially similar to the
Designated Securities, or any securities that are convertible into or
exchangeable for Designated Securities, limited partner interests, preferred
stock or other substantially similar securities of CL&P Capital or the
Guarantor without the prior written consent of Goldman, Sachs & Co.;
(f) To use its best efforts to list, subject to notice of issuance, the
Preferred Securities and, upon issuance thereof to the holders of Preferred
Securities, the Debt Securities on the New York Stock Exchange (the
"Exchange");
(g) To furnish to the holders of the Preferred Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholder's equity and cash flows
of the Guarantor and its consolidated subsidiaries audited by independent
public accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the first such
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Guarantor and
its subsidiaries for such quarter in reasonable detail;
(h) During a period of five years from the date of this Agreement to
furnish to you copies of all reports or other communications (financial and
other) furnished to holders of common stock of the Guarantor, and deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Guarantor or CL&P
Capital are listed; and (ii) such additional information concerning the
business and financial condition of Guarantor as the Representatives may from
time to time reasonably request;
(i) In the case of the Guarantor, to issue the Guaranty concurrently
with the issue and sale of the Preferred Securities as contemplated herein;
and
(j) To use the net proceeds received by it from the sale of the
Designated Securities pursuant to this Agreement in the manner specified in
the applicable Prospectus as amended or supplemented under the caption "Use
of Proceeds".
6. Each of CL&P Capital and the Guarantor jointly and severally
covenants and agrees with the several Underwriters that CL&P Capital and the
Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of CL&P Capital's and the Guarantor's counsel and
accountants in connection with the registration of the Preferred Securities,
the Debt Securities and the Guaranty under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, the
Indenture, the Preferred Securities, the Debt Securities any Blue Sky
Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery
of the Preferred Securities; (iii) all expenses in connection with the
qualification of the Preferred Securities and the Guaranty for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey(s); (iv) any fees charged by securities rating services for
rating the Preferred Securities; (v) any filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Preferred
Securities; (vi) any fees and expenses in connection with listing the
Preferred Securities and the Debt Securities; (vii) the cost of preparing
certificates for the Preferred Securities; (viii) the cost and charges of any
transfer agent or registrar or dividend disbursing agent; (ix) the cost of
qualifying the Preferred Securities for delivery in book-entry only form; (x)
the fees and expenses of any Trustee and any agent of any Trustee and the
reasonable fees or disbursements of counsel for any Trustee in connection
with the Indenture and the Debt Securities; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Preferred Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of CL&P Capital and the
Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that CL&P Capital and
the Guarantor shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives reasonable satisfaction;
(b) Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
matters covered in paragraphs (i), (ii), (iv), (viii), (ix), (x) and (xi) of
subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Day, Berry & Howard, counsel for CL&P Capital and the Guarantor,
shall have furnished to the Representatives their written opinion or
opinions, dated the Time of Delivery for such Designated Securities,
respectively, in form and substance satisfactory to the Representatives, to
the effect that:
(i) CL&P Capital has been duly formed and is validly existing as a
limited partnership in good standing under the Partnership Act; CL&P Capital
has no subsidiaries; CL&P Capital is a special purpose limited partnership as
described in the Prospectus as amended or supplemented and has conducted and
will conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus as amended or supplemented; CL&P
Capital is not a party to or bound by any agreement or instrument other than
the Limited Partnership Agreement and, solely for the purposes stated in the
recitals thereto, the Indenture; CL&P Capital has no liabilities or
obligations other than those arising out of the transactions contemplated by
this Agreement and described in the Prospectus as amended or supplemented;
CL&P Capital is not a party to or subject to any action, suit or proceeding
of any nature; the Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Connecticut with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as amended
or supplemented; and the Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification;
(ii) The Guarantor has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Guarantor have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by NU, free and clear of all liens, encumbrances, equities or
claims; the Guarantor is the sole general partner of CL&P Capital; the Class
A Limited Partner is the sole Class A Limited Partner of CL&P Capital; and
the Class A Limited Partner has been duly incorporated and is validly
existing in good standing as a corporation under the laws of the State of
Connecticut, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as amended
or supplemented; and all of the issued general and limited partner interests
of CL&P Capital are owned by the Guarantor and the Class A Limited Partner,
respectively, and have been duly and validly authorized and validly issued,
free and clear of all liens, encumbrances, equities or claims;
(iii) To the best of such counsel s knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which CL&P Capital, the Guarantor or any
of the Guarantor's subsidiaries is a party or of which any property of CL&P
Capital, the Guarantor or any of the Guarantor's subsidiaries is the subject
which, if determined adversely to CL&P Capital, the Guarantor or any of the
Guarantor's subsidiaries, would individually or in the aggregate have a
material adverse effect on (x) the current or future consolidated financial
position, capital accounts or results of operations of CL&P Capital or (y)
the current or future consolidated financial position, stockholders equity
or results of operations of the Guarantor and its subsidiaries; and to the
best of such counsel s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
CL&P Capital and the Guarantor;
(v) The issue and sale of the Designated Preferred Securities being
delivered at such Time of Delivery and the compliance by CL&P Capital and the
Guarantor with all of the provisions of this Agreement, the Pricing
Agreement, the Indenture and the Guaranty with respect to the Designated
Preferred Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which CL&P Capital or the
Guarantor or any of the Guarantor's subsidiaries is a party or by which CL&P
Capital or the Guarantor is bound or to which any of the property or assets
of CL&P Capital or the Guarantor or any of the Guarantor's subsidiaries is
subject, which conflict, breach, violation or default would have a material
adverse effect on CL&P Capital, the Guarantor, or any of the Guarantor's
subsidiaries, nor will such action result in any violation of the provisions
of the Certificate of Limited Partnership or Limited Partnership Agreement of
CL&P Capital or the Certificate of Incorporation or By-laws of the Guarantor
or any statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over CL&P Capital or
the Guarantor or any of the Guarantor's subsidiaries or any of their
properties, which violation would have a material adverse effect on CL&P
Capital, the Guarantor, or any subsidiary of the Guarantor;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Preferred Securities being
delivered at such Time of Delivery or the consummation by CL&P Capital or the
Guarantor of the transactions contemplated by this Agreement or such Pricing
Agreement, including the issuance and delivery of the Guaranty and the
Designated Debt Securities, except such as have been obtained under the Act
and the Trust Indenture Act, the approval of the Commission under the Holding
Company Act and the approval of the DPUC, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Preferred Securities by the Underwriters;
(vii) Neither the Guarantor nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws; CL&P Capital is not in
violation of its Certificate of Limited Partnership or the Limited
Partnership Agreement; and neither CL&P Capital, the Guarantor nor any of the
Guarantor's subsidiaries is in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its properties
may be bound;
(viii) The statements set forth in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Subordinated
Debentures," and "Description of the Guaranty", insofar as they purport to
constitute a summary of the terms of the Preferred Securities, the Guaranty
and the Debt Securities, and under the caption "United States Taxation",
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material
respects;
(ix) The Preferred Securities have been duly and validly authorized and
are validly issued and, subject to the qualifications set forth in Section
7(e)(iv) hereof, are fully paid and non-assessable limited partner interests
in CL&P Capital; and the Designated Preferred Securities conform in all
material respects to the description thereof contained in the Prospectus as
amended or supplemented;
(x) The Indenture and the Debt Securities have been duly authorized by
the Guarantor; the Indenture has been duly qualified under the Trust
Indenture Act; the Indenture has been duly executed and delivered by the
Guarantor and, assuming that it has been duly authorized, executed and
delivered by the Trustee, constitutes, and the Debt Securities have been duly
executed by the Guarantor in accordance with the Indenture and delivered by
the Guarantor under the circumstances provided in the Prospectus as amended
or supplemented and, assuming they have been duly authenticated by the
Trustee, constitute the valid and legally binding obligations of the
Guarantor enforceable against the Guarantor in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or similar laws of general equity principles; and the Indenture
and the Debt Securities conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented;
(xi) The Guaranty has been duly authorized, executed, issued and
delivered by the Guarantor and constitutes a valid and legally binding
obligation of the Guarantor entitled to the benefits provided by the Guaranty
Agreement; and the Guaranty conforms in all material respects to the
description thereof contained in the Prospectus as amended or supplemented;
(xii) Neither CL&P Capital nor the Guarantor is and, after giving
effect to the offering and sale of the Designated Securities, neither will be
an "investment company" or an entity "controlled" by an "investment company",
as such terms are defined in the Investment Company Act;
(xiii) The Guarantor possesses such franchises, certificates, including
certificates of public convenience and necessity, authorities, permits and
easements issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it
and/or own, operate and maintain its properties as described in the
Prospectus, and, to the knowledge of such counsel, it has not received notice
of proceedings relating to the revocation or modification of any such
franchise, certificate, authority, permit or easement which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Guarantor;
(xiv) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and they have no reason to believe
that any of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading;
(xv) The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made by CL&P
Capital or the Guarantor prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion), comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder; although
they do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection (viii)
of this Section 7(c), they have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto
made by CL&P Capital or the Guarantor prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further amendment or
supplement thereto made by CL&P Capital or the Guarantor prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by CL&P
Capital or the Guarantor prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and they do not know of any amendment to the Registration Statement required
to be filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by reference or
described as required; and
(xvi) The Limited Partnership Agreement has been duly authorized,
executed and delivered by the Guarantor and constitutes a valid and legally
binding obligation of the Guarantor, in its capacity as general partner of
CL&P Capital, enforceable against the Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
In rendering their opinion, such counsel may rely, as to certain matters
relating to the Class A Limited Partner, the Guarantor and the Guarantor's
subsidiaries, upon the opinion of Jeffrey C. Miller, Esq., Assistant General
Counsel of the Class A Limited Partner, which opinion shall be addressed to,
or shall otherwise permit reliance thereon by, the Representatives.
(d) Day, Berry & Howard, special tax counsel for CL&P Capital and the
Guarantor, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect that
such counsel confirms its opinion as set forth under "United States Taxation"
in the Prospectus as amended and supplemented;
(e) Day, Berry & Howard, counsel for CL&P Capital and the Guarantor,
shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) CL&P Capital has been duly formed and is validly existing in good
standing as a limited partnership under the Partnership Act;
(ii) Under the Limited Partnership Agreement and the Partnership Act,
CL&P Capital has all necessary partnership power and authority to own its
properties and conduct its business, all as described in the Prospectus as
amended or supplemented;
(iii) The general partner and limited partner interests in CL&P Capital
issued to the Guarantor and the Class A Limited Partner, respectively, have
been duly and validly authorized and are validly issued;
(iv) The Preferred Securities issued to the limited partners of CL&P
Capital who hold the Preferred Securities (the "Preferred Security Holders")
have been duly and validly authorized and are validly issued and, subject to
the qualifications set forth herein, are fully paid and nonassessable limited
partner interests in CL&P Capital, as to which, assuming that the Preferred
Security Holders, as limited partners of CL&P Capital, do not participate in
the control of the business of CL&P Capital, the Preferred Security Holders,
as limited partners of CL&P Capital, will have no liability in excess of
their obligations to make payments provided for in the Limited Partnership
Agreement and their share of CL&P Capital's assets and undistributed profits
(subject to the obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it);
(v) There are no provisions in the Limited Partnership Agreement the
inclusion of which, subject to the terms and conditions therein, or, assuming
that the Preferred Security Holders, as limited partners of CL&P Capital,
take no action other than actions permitted by the Limited Partnership
Agreement, the exercise of which, in accordance with the terms and conditions
therein, would cause the Preferred Security Holders, as limited partners of
CL&P Capital, to be deemed to be participating in the control of the business
of CL&P Capital;
(vi) The Limited Partnership Agreement has been duly authorized,
executed and delivered by the Guarantor, constitutes a legal, valid and
binding agreement of the Guarantor, and is enforceable against the Guarantor,
in its capacity as general partner of CL&P Capital, in accordance with its
terms subject to bankruptcy, insolvency, moratorium, fraudulent conveyance,
receivership, reorganization, liquidation and other similar laws relating to
or affecting the rights and remedies of creditors generally and to principles
of equity (regardless of whether considered and applied in a proceeding in
equity or at law);
(vii) Under the Limited Partnership Agreement and the Partnership Act,
CL&P Capital has all necessary partnership power and authority to execute and
deliver, and to perform its obligations under, this Agreement;
(viii) Under the Limited Partnership Agreement and the Partnership Act,
the execution and delivery by CL&P Capital of this Agreement, and the
performance by CL&P Capital of its obligations hereunder, have been duly
authorized by all necessary partnership action on the part of CL&P Capital;
(ix) The issuance and sale by CL&P Capital of the Preferred Securities
pursuant to this Agreement and the execution, delivery and performance by
CL&P Capital of this Agreement will not result in any violation of (i) any
Delaware statute, rule or regulation, which violation will have a material
adverse effect on CL&P Capital, or (ii) the Certificate of Limited
Partnership of CL&P Capital or the Limited Partnership Agreement;
(x) No consent, approval, authorization, order, registration or
qualification of or with any Delaware court or Delaware governmental agency
or body is required solely as a result of the issuance and sale by CL&P
Capital of the Preferred Securities pursuant to this Agreement, the
execution, delivery and performance by CL&P Capital of this Agreement or the
consummation of the transactions contemplated in this Agreement;
(xi) Such counsel has reviewed the statements in the Prospectus as
amended or supplemented under the caption "CL&P Capital" and, insofar as it
contains statements of Delaware law, such statements are fairly presented in
all material respects; and
(xii) Assuming that CL&P Capital is treated as a partnership for
Federal income tax purposes, and assuming that CL&P Capital derives no income
from or connected with sources within the State of Delaware and has no
assets, activities (other than the maintenance of a registered office and
registered agent in the State of Delaware and the filing of documents with
the Delaware Secretary of State) or employees in the State of Delaware, the
Preferred Security Holders (other than those Preferred Security Holders who
reside or are domiciled in the State of Delaware), will have no liability for
Delaware income taxes solely as a result of their participation in CL&P
Capital, and CL&P Capital will not be liable for any Delaware income tax.
(f) On the date of the Pricing Agreement for such Designated Securities
at a time prior to the execution of the Pricing Agreement with respect to the
Designated Securities and at each Time of Delivery for such Designated
Securities, Arthur Andersen LLP, the independent accountants of CL&P Capital
and the Guarantor who have certified the financial statements of CL&P Capital
and the Guarantor and the Guarantor's subsidiaries included or incorporated
by reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(g) (i) Neither CL&P Capital, the Guarantor nor any of the Guarantor's
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information is
given in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities there shall not have been any change in
the capital accounts or long-term debt of CL&P Capital or capital stock or
long-term debt of the Guarantor or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting (x) the
general affairs, management, financial position, capital accounts or results
of operations of CL&P Capital or (y) the general affairs, management,
financial position, stockholders equity or results of operations of the
Guarantor and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Preferred Securities, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Preferred Securities on the terms and in the manner contemplated
in the Prospectus as amended relating to the Designated Preferred Securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Preferred Securities (i) no downgrading shall have occurred in the
rating accorded any Preferred Securities or any of the Guarantor s debt
securities or preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any Preferred Securities or any of the
Guarantor s debt securities or preferred stock;
(i) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in trading
in CL&P Capital s or the Guarantor s securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(j) The Designated Securities at the Time of Delivery shall have been
duly listed, subject to notice of issuance, on the New York Stock Exchange;
(k) CL&P Capital and the Guarantor shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Designated
Securities certificates of officers of CL&P Capital and the Guarantor,
respectively, satisfactory to the Representatives as to the accuracy of the
respective representations and warranties of CL&P Capital and the Guarantor
herein at and as of such Time of Delivery, as to the performance by CL&P
Capital and the Guarantor of all of its respective obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other matters
as the Representatives may reasonably request;
(l) The Limited Partnership Agreement, the Guaranty and the Indenture
shall have been executed and delivered, in each case in a form reasonably
satisfactory to the Representatives; and
(m) Neither a Tax Event nor an Investment Company Event (each as
defined in the Prospectus as amended or supplemented) shall have occurred and
be continuing.
8. (a) CL&P Capital and the Guarantor, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither CL&P Capital nor the Guarantor shall be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the
Preferred Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to CL&P Capital by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Preferred Securities.
(b) Each Underwriter will indemnify and hold harmless CL&P Capital and
the Guarantor against any losses, claims, damages or liabilities to which
CL&P Capital may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Preferred
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Preferred Securities,
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to CL&P Capital and the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse CL&P Capital and the Guarantor for any legal or other expenses
reasonably incurred by CL&P Capital in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify such
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by CL&P Capital and the Guarantor on
the one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of CL&P Capital and the Guarantor on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by CL&P Capital and
the Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by CL&P Capital and the
Guarantor bear to the total underwriting discounts and commissions received
by such Underwriters. The relative fault 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 CL&P Capital and the Guarantor on the one
hand or such Underwriters on the other and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. CL&P Capital, the Guarantor and the Underwriters
agree that it would not be just and equitable if contributions pursuant to
this subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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 subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Designated Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Designated Securities and not joint.
(e) The obligations of CL&P Capital under this Section 8 shall be in
addition to any liability which CL&P Capital and the Guarantor may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
CL&P Capital and the Guarantor and to each person, if any, who controls CL&P
Capital and the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
forty-eight hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Designated Securities, as the case
may be, then CL&P Capital shall be entitled to a further period of forty-
eight hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify CL&P Capital that they have so arranged for the
purchase of such Designated Securities, or CL&P Capital notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or CL&P Capital shall have the right to
postpone a Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and CL&P Capital
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as
if such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives and CL&P Capital as provided in
subsection (a) above, the aggregate amount of such Designated Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
amount of the Designated Securities to be purchased at the Time of Delivery,
then CL&P Capital shall have the right to require each non-defaulting
Underwriter to purchase the amount of Designated Securities which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Designated Securities, of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and CL&P Capital as provided in subsection (a) above, the
aggregate amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate amount of Designated Securities to be purchased
at the Time of Delivery, as referred to in subsection (b) above, or if CL&P
Capital shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase the Designated Securities of
a defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or CL&P Capital or the Guarantor,
except for the expenses to be borne by CL&P Capital and the Guarantor and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of CL&P Capital or the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or CL&P Capital or the Guarantor, or any officer or director
or controlling person of CL&P Capital or the Guarantor, and shall survive
delivery of and payment for any Designated Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, neither CL&P Capital nor the Guarantor shall then be under any
liability to any Underwriter with respect to the Designated Securities with
respect to which such Pricing Agreement shall have been terminated except as
provided in Sections 6 and 8 hereof; but, if for any other reason, Designated
Securities are not delivered by or on behalf of CL&P Capital or the Guarantor
as provided herein, CL&P Capital will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but CL&P Capital or the Guarantor
shall then be under no further liability to any Underwriter with respect to
such Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth
in the Pricing Agreement; and if to CL&P Capital or the Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of
CL&P Capital or the Guarantor, respectively set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to CL&P Capital and the
Guarantor by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, CL&P Capital, the
Guarantor and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of CL&P Capital, the Guarantor and each person who
controls CL&P Capital or the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the
Preferred Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission s
office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us one for CL&P Capital and one for each of the Representatives
plus one for each counsel counterparts hereof.
Very truly yours,
CL&P CAPITAL, L. P.
By: The Connecticut Light and Power Company,
its General Partner
By:/s/John B. Keane
Name: John B. Keane
Title: Vice President and Treasurer
THE CONNECTICUT LIGHT AND POWER COMPANY
By:/s/John B. Keane
Name: John B. Keane
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Brothers Inc
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
By:/s/Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.
Salomon Brothers Inc
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
January 13, 1995
Ladies and Gentlemen:
CL&P Capital, L.P., a Delaware limited partnership ("CL&P Capital"), as
issuer, and The Connecticut Light and Power Company, a Connecticut
corporation, as guarantor (the "Guarantor"), each proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
January 13, 1995 (the "Underwriting Agreement"), between CL&P Capital and
the Guarantor on the one hand and Goldman, Sachs & Co., Salomon Brothers Inc,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated, Prudential Securities Incorporated and
Smith Barney Inc. on the other hand, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Preferred Securities
specified in Schedule II hereto (the "Designated Preferred Securities"). The
Designated Preferred Securities will be guaranteed by the Guarantor to the
extent described in the Prospectus. Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Registration Statement or
Prospectus (each as defined in the Underwriting Agreement) in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Registration
Statement or Prospectus, and also a representation and warranty as of the
date of this Pricing Agreement in relation to the Registration Statement or
Prospectus as amended or supplemented relating to the Designated Preferred
Securities which are the subject of this Pricing Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the Underwriting Agreement
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of
the Designated Preferred Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Preferred
Securities, in the form heretofore delivered to you is now proposed to be
filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, CL&P Capital agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from CL&P Capital, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the amount of Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us one each for CL&P Capital and the Guarantor and one for each
of the Representatives plus one for each counsel counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and CL&P Capital and the
Guarantor. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted
to CL&P Capital for examination and the Guarantor, upon request, but without
warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
CL&P CAPITAL, L. P.
By: The Connecticut Light and Power Company,
its General Partner
By: /s/John B. Keane
Name: John B. Keane
Title: Vice President and Treasurer
THE CONNECTICUT LIGHT AND POWER COMPANY
By:/s/John B. Keane
Name: John B. Keane
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Brothers Inc
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
By:/s/Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Amount of
Preferred
Securities
to be
Underwriters Purchased
Goldman, Sachs & Co. 538,000
Salomon Brothers Inc 538,000
Merrill Lynch, Pierce, Fenner & Smith 538,000
Incorporated
Morgan Stanley & Co. Incorporated 538,000
Prudential Securities Incorporated 538,000
Smith Barney Inc. 538,000
Advest, Inc. 56,000
Dillon, Read & Co. Inc. 56,000
Donaldson, Lufkin & Jenrette Securities 56,000
Corporation
A.G. Edwards & Sons, Inc. 56,000
Lehman Brothers Inc. 56,000
PaineWebber Incorporated 56,000
SBCI Swiss Bank Corporation Investment 56,000
banking Inc.
J.C. Bradford & Co. 20,000
Crowell, Weedon & Co. 20,000
Dain Bosworth Incorporated 20,000
Fahnestock & Co. Inc. 20,000
First Albany Corporation 20,000
Furman Selz Incorporated 20,000
Interstate/Johnson Lane Corporation 20,000
Janney Montgomery Scott Inc. 20,000
Josephthal Lyon & Ross Incorporated 20,000
Legg Mason Wood Walker Incorporated 20,000
McDonald & Company Securities, Inc. 20,000
Morgan, Keegan & Company, Inc. 20,000
Olde Discount Corporation 20,000
Piper Jaffray Inc. 20,000
The Robinson-Humphrey Company, Inc. 20,000
Muriel Siebert & Co., Inc. 20,000
Tucker Anthony Incorporated 20,000
U.S. Securities, Inc. 20,000
Wheat, First Securities, Inc. 20,000
--------
TOTAL 4,000,000
SCHEDULE II
Title of Designated Preferred Securities: 9.30% Cumulative Monthly Income
Securities,
Series A
Number of Preferred Securities:
4,000,000
Initial Offering Price to Public:
$25.00 per security
Purchase Price by Underwriters:
$25.00 per security
Commission Payable to Underwriters:
$0.7875 per security in next-day funds
Form of Designated Preferred Securities:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.
Specified Funds for Payment of Purchase Price: next-day funds
Blackout provisions with respect to the Designated Preferred Securities: As
set forth in Section 5(e) of the Underwriting Agreement
Time of Delivery:
10 a.m. (New York City time), January 23, 1995
Closing Location: Day, Berry & Howard, CityPlace, Hartford, CT 06103-3499, or
as agreed to by the parties
Names and addresses of Representatives:
Designated Representatives: Goldman, Sachs & Co.
Salomon Brothers Inc
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Smith Barney Inc.
Address for Notices, etc.: c/o Goldman, Sachs & Co., 85 Broad Street,
New York, NY 10004
Attention: Registration Department
Other Terms: As set forth in the Prospectus
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Guarantor and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) audited by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Guarantor for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Guarantor s quarterly reports on Form 10-Q incorporated by
reference into the Prospectus; and on the basis of specified procedures
including inquiries of officials of the Guarantor who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (v)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules
and regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules
and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Guarantor
for the five most recent fiscal years included in the Prospectus and included
or incorporated by reference in Item 6 of the Guarantor s Annual Report on
Form 10-K for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Guarantor s Annual Reports on Form 10-K for
such fiscal years;
(v) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred
to below, a reading of the latest available interim financial statements of
the Guarantor and its subsidiaries, inspection of the minute books of the
Guarantor and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, inquiries
of officials of the Guarantor and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Guarantor s Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Guarantor s Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated by
reference in the Guarantor s Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in clause
(B) were not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by reference in
the Guarantor s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Guarantor and its subsidiaries, or any decreases in consolidated net current
assets or stockholders equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(F) for the twelve-month period ended on the specified date referred to
in Clause (E) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vi) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (v) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which
are derived from the general accounting records of the Guarantor and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Guarantor and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Preferred Securities for purposes of the letter delivered at the
Time of Delivery for such Designated Preferred Securities.
