<PAGE>
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MASSACHUSETTS ELECTRIC COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-1988940
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
25 RESEARCH DRIVE,
WESTBOROUGH, MASSACHUSETTS 01582
508-389-2000
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICE)
MICHAEL E. JESANIS ROBERT KING WULFF
TREASURER CORPORATION COUNSEL
25 RESEARCH DRIVE 25 RESEARCH DRIVE
WESTBOROUGH, MASSACHUSETTS 01582 WESTBOROUGH, MASSACHUSETTS 01582
508-389-2000 508-389-2000
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENTS FOR SERVICE)
------------------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
GEORGE J. FORSYTH, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: to be
determined by market conditions after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
------------------------
CALCULATION OF REGISTRATION FEE
=============================================================================
TITLE
OF EACH PROPOSED PROPOSED
CLASS OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
BEING BEING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT* PRICE* FEE
First $100,000,000 100% $100,000,000 $34,483
Mortgage
Bonds
=============================================================================
*Used only for the purpose of calculating the amount of registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The total number of pages contained in this Registration Statement is 18.
The Exhibit Index appears on page 18.
<PAGE>
##################################################
# SUBJECT TO COMPLETION, DATED #
##################################################
PROSPECTUS
(LOGO)
MASSACHUSETTS ELECTRIC COMPANY
(A SUBSIDIARY OF NEW ENGLAND ELECTRIC SYSTEM)
$100,000,000
FIRST MORTGAGE BONDS
BOND INTEREST WILL BE PAYABLE SEMIANNUALLY.
THE BONDS WILL BE ISSUED ONLY AS FULLY REGISTERED BONDS
IN DENOMINATIONS OF $1,000 OR ANY INTEGRAL MULTIPLE THEREOF.
Massachusetts Electric Company (the Company) intends to offer, from time
to time, not exceeding $100 million aggregate principal amount of its First
Mortgage Bonds (the New Bonds). The New Bonds will be issued under a
supplement to the Company's First Mortgage Indenture and Deed of Trust dated
as of July 1, 1949. The New Bonds may be offered as one or more series and/or
issues, and each series and/or issue of New Bonds will bear interest at a
fixed rate, which, together with the series designation, principal amount,
purchase price, maturity, interest payment dates, redemption terms, and any
other specific provisions, will be established at the time of issuance and set
forth in a prospectus supplement (Prospectus Supplement) for that series
and/or issue. Interest on the New Bonds will be payable semiannually, and
upon maturity or earlier redemption. The New Bonds will be secured by a
direct first mortgage lien on substantially all of the Company's properties.
See "Description of the New Bonds".
The Company may sell the New Bonds by publicly inviting bids for the
purchase of the New Bonds, through negotiation with one or more underwriters,
through agents designated from time to time, or directly to other purchasers.
See "Plan of Distribution". The names of the purchasers, underwriters or
agents, the initial public offering price, any applicable discounts or
commissions and the proceeds to the Company with respect to the New Bonds will
be set forth in a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFER CONTAINED HEREIN. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
IN ANY STATE IN WHICH SUCH OFFER MAY NOT LAWFULLY BE MADE.
###############################################################################
# A registration statement relating to these securities has been filed #
# with the Securities and Exchange Commission but has not yet become #
# effective. Information contained herein is subject to completion or #
# amendment. These securities may not be sold nor may offers to buy be #
# accepted prior to the time the registration statement becomes effective. #
# This prospectus shall not constitute an offer to sell or the solicitation #
# of an offer to buy nor shall there be any sale of these securities in any #
# state in which such offer, solicitation or sale would be unlawful prior to #
# registration or qualification under the securities laws of any such state. #
###############################################################################
THE DATE OF THIS PROSPECTUS IS __________, 1995
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
AND ADDITIONAL INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports and other
information with the Securities and Exchange Commission (SEC). Certain
information, as of particular dates, with respect to the Company's directors
and officers, their remuneration, and their material interest in transactions
with the Company, if any, is disclosed in the Company's Annual Report on Form
10-K.
The following documents, which have heretofore been filed by the Company
with the SEC pursuant to the Securities Exchange Act of 1934, are incorporated
by reference in this prospectus and shall be deemed to be a part hereof:
(1) Annual Report on Form 10-K for the year ended December 31, 1994
which contains financial statements of the Company as of December 31,
1994, and for the three years ended December 31, 1994 and incorporates by
reference or includes the related reports of Coopers & Lybrand L.L.P.,
independent accountants.
All documents filed by the Company with the SEC pursuant to section 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of this prospectus and prior to the termination of the offering made by
this prospectus shall be incorporated herein by reference and shall be deemed
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part
hereof.
Such documents and other information can be inspected and copied at the
Public Reference Room in the office of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. or at SEC Regional Offices at 7 World Trade Center, New York,
New York and 500 West Madison Street, Chicago, Illinois. Copies of such
material can be obtained from the Public Reference Section of the SEC,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN
DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR
ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED
BY REFERENCE IN THIS PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS.
WRITTEN OR ORAL REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO THE TREASURER,
MASSACHUSETTS ELECTRIC COMPANY, 25 RESEARCH DRIVE, WESTBOROUGH, MASSACHUSETTS
01582 (TELEPHONE 508-389-2000).
<PAGE>
SUMMARY INFORMATION
The following material is qualified in its entirety by the information and
financial statements appearing elsewhere in this prospectus and in the
documents and information incorporated herein by reference.
Company.........................Massachusetts Electric Company.
Parent..........................New England Electric System.
Business........................Retail electric utility.
Power Supply....................New England Power Company, an affiliated
wholesale generation company.
Service Area....................Covers approximately 43% of Massachusetts
with Worcester, Massachusetts, the largest
city served.
Customers.......................Approximately 940,000 as of December 31,
1994.
Revenue Distribution............For the 12 months ended December 31, 1994,
the Company's revenues from the sale of
electricity were derived 41% from
residential customers, 37% from commercial
customers, 21% from industrial customers,
and 1% from others.
Securities Offered..............Not exceeding $100,000,000 principal
amount of First Mortgage Bonds, in one or
more series.
Payment of Interest.............Semiannually on dates to be determined.
Maturity........................To be determined.
Security Interest...............Secured, together with all other
outstanding First Mortgage Bonds, by a
mortgage on substantially all of the
Company's properties.
Replacement Fund................For all the Company's First Mortgage
Bonds, the Company will make mandatory
annual replacement fund payments equal to
2.4% of the average investment in
depreciable property during the preceding
year, to be satisfied by First Mortgage
Bonds of any issue or series (including
the New Bonds), cash, or additional
property. See "Description of the New
Bonds -- Replacement Fund".
Redemption......................To be determined for each series and/or
issue of New Bonds. See "Description of
the New Bonds -- Redemption".
<PAGE>
<TABLE>
MASSACHUSETTS ELECTRIC COMPANY
SELECTED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS)
<CAPTION>
Years Ended December 31,
--------------------------------------------------------
12 Months Ended
March 31, 1995
(Unaudited) 1994 1993 1992 1991 1990
--------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Operating Revenue................$1,473,450 $1,482,070$1,468,540$1,412,948$1,363,888$1,242,945
Net Income.......................$ 30,280 $ 34,726$ 23,779$ 34,905$ 25,243$ 35,192
Ratio of Earnings to
Fixed Charges: (1) 2.64 3.06 2.29 3.15 2.66 3.25
Utility Plant, net (end of
period) (2).......................$1,005,333$ 995,995$ 945,285$ 906,293$ 865,018$ 827,915
AS OF MARCH 31, 1995
(UNAUDITED)
------------------------
AMOUNT RATIO
-------- -------
CAPITAL STRUCTURE:
First Mortgage Bonds (3) ....... $338,413 43.90%
Cumulative Preferred Stock...... 50,000 6.49
Common Stock Equity............. 382,389 49.61
-------- ------
Total...................... $770,802 100.00%
======== ======
- ---------------
<FN>
(1)In determining the ratios of earnings to fixed charges, earnings were arrived at by adding to net income
all income taxes and fixed charges. Fixed charges consist of interest and amortization of debt
premiums, discounts and expense on all indebtedness.
(2)Includes construction work in progress.
(3)Includes $25 million of long-term debt due within one year.
The Company had $68,725,000 of short-term indebtedness outstanding as of March 31, 1995.
</FN>
</TABLE>
<PAGE>
THE COMPANY
The Company, incorporated in Massachusetts in 1887, is a retail electric
utility subsidiary of New England Electric System (NEES), a registered holding
company under the Public Utility Holding Company Act of 1935 (the 1935 Act).
NEES owns all of the Company's common stock. The executive offices of the
Company are at 25 Research Drive, Westborough, Massachusetts 01582 (telephone
508-389-2000).
USE OF PROCEEDS
The proceeds from the sale of the New Bonds will be applied to the cost
of, or the reimbursement of the treasury for, or to the payment of short-term
borrowings incurred for (i) capitalizable additions and improvements to the
plant and property of the Company, (ii) other capitalizable expenditures, or
(iii) if market conditions warrant, the redemption of or the retirement of
outstanding First Mortgage Bonds of the Company.
CONSTRUCTION AND FINANCING
The Company's construction expenditures, excluding allowance for funds
used during construction, were $94 million in 1994, and are estimated to be
approximately $105 million in 1995 and $95 million in 1996 and 1997. These
construction expenditures are incurred principally for improvements and
additions to the Company's distribution system. The Company conducts a
continuing review of its construction program. This program and the above
estimates relating thereto are subject to revisions based upon changes in
assumptions concerning, among other things, load growth and rates of
inflation.
The funds needed to pay for the Company's construction expenditures will
be provided from internal sources and from external financing. The Company
estimates that 90% of its 1995-1997 construction requirements will be provided
from internal sources or from anticipated capital contributions made by NEES.
The balance will be provided initially from short-term borrowings, to be
repaid from the proceeds of the sale of long-term securities (First Mortgage
Bonds, including the New Bonds, or preferred stock sold to the public, or
common stock sold to NEES).
The Company's preferred stock preference provisions limit the amount of
short-term unsecured indebtedness which may be outstanding after September 30,
1998 to 10% of the sum of secured indebtedness, capital, premiums, and
retained earnings, unless a higher amount is authorized by vote of the
preferred stockholders; prior to such date, the limit is 20%. At March 31,
1995, this limit was approximately $154 million.
Under its Articles of Organization and By-Laws, the Company may issue
additional preferred stock, absent a vote of a majority of the holders of
preferred stock, (a) in the case of a refunding issue, or (b) when (i) gross
income, as defined therein, for any twelve consecutive calendar months within
the preceding fifteen months available for interest on indebtedness and
dividends on its preferred stock is at least 1-1/2 times the annual interest
charges and dividend requirements on all interest bearing indebtedness and all
preferred stock including the new issue, (ii) the aggregate outstanding par
value of all series of preferred stock, including the new issue, does not
exceed $120 million, and (iii) the equity of stock junior to the preferred
stock is at least equal to the par value of the preferred stock. Under the
provision that is currently the most restrictive (the aggregate par value
provision), as of March 31, 1995, the Company could issue $70 million of new
preferred stock.
<PAGE>
For information on limitations on the Company's ability to issue First
Mortgage Bonds, see "Description of the New Bonds -- Additional First Mortgage
Bonds" in this prospectus.
DESCRIPTION OF THE NEW BONDS
GENERAL
The New Bonds will be issued under and secured by a First Mortgage
Indenture and Deed of Trust dated as of July 1, 1949, from the Company to
State Street Bank and Trust Company (formerly Second Bank -- State Street
Trust Company, successor to The Second National Bank of Boston), Boston,
Massachusetts, as Trustee, and indentures supplemental thereto, including a
Twenty-First Supplemental Indenture to State Street Bank and Trust Company, as
Trustee, with respect to the New Bonds (collectively, the Indenture). Each
series and/or issue of the New Bonds will mature in the year shown in its
title, and will bear interest beginning from the date as of which such issue
of New Bonds is first certified and delivered, at the rate per annum shown in
its title. Interest will be payable semiannually. Principal and premium, if
any, will be payable at the office of the Trustee. Interest will be payable
at the office of the Trustee or, at the Company's option, by mailing checks to
registered owners at their addresses set forth in the bond register. It is
the Company's general practice to mail interest checks to registered owners.
The designation and principal amount of the New Bonds, the date of
maturity (which date will not be more than thirty years from the date on which
such New Bonds were first certified and delivered), the interest rate, the
interest payment dates, and the provisions for redemption (including any
premium or premiums payable thereon) will be separately established for each
series and/or issue and set forth in the applicable prospectus supplement.
The New Bonds will be issued only in the form of fully registered bonds
without coupons in denominations of $1,000 or any integral multiple thereof.
Any of the New Bonds may be presented at the office of the Trustee for
exchange for a like aggregate principal amount of New Bonds of the same series
and/or issue of other authorized denominations or for transfer, without
payment in either case of any charge other than stamp taxes or other
governmental charges, if any, required to be paid by the Company.
The brief summary herein of certain provisions of the Indenture is merely
an outline and does not purport to be complete. It uses defined terms and is
qualified in its entirety by reference to the Indenture which is filed as an
exhibit to the Registration Statement.
REDEMPTION
The redemption provisions of each series and/or issue of the New Bonds
will be described in the prospectus supplement relating thereto.
SECURITY AND PRIORITY
The New Bonds, when duly issued, will be secured, together with all other
outstanding First Mortgage Bonds, by a direct first mortgage lien on
substantially all the properties and franchises then owned by the Company,
subject only to liens permitted by the Indenture. Certain types of property
are excepted from the lien of the Indenture, including consumable property,
fuel, automotive and office equipment, merchandise held for sale, supplies,
cash, receivables, and securities. The after-acquired property clause of the
Indenture, by its terms and to the extent permitted by law, applies the lien
of the Indenture to property subsequently acquired by the Company. The
Indenture provides for the release or substitution of property subject to the
lien of the Indenture under certain circumstances provided that specific
conditions are met.
<PAGE>
No other securities may be issued ranking prior to or on a parity with the
New Bonds with respect to the security provided by the Indenture, except
additional First Mortgage Bonds issued in the manner summarized below under
"Additional First Mortgage Bonds" and obligations existing or created in
connection with the acquisition of after-acquired property, which may not
exceed 60% of the cost or fair value, whichever is less, of such property.
REPLACEMENT FUND
There is a replacement fund applicable to all outstanding Bonds of the
Company with an annual requirement, payable August 1, computed on the basis of
2.4% of the average gross plant investment in depreciable electric utility
property at the beginning and end of each month during the preceding calendar
year. The annual replacement fund requirement may be satisfied in cash or
First Mortgage Bonds (including the New Bonds) of any series or by the
allocation of an amount of additional property (as defined in the Indenture).
The aggregate amount of additional property used to satisfy the replacement
fund requirement may be used to offset net retirements in computing the net
amount of additional property.
Any series and/or issue of New Bonds may be redeemed at special redemption
prices to satisfy the annual replacement fund requirement. However, the use
of cash for redemptions of New Bonds may be restricted by any noncallability
or nonrefundability provisions that may be established for that series and/or
issue of New Bonds.
ADDITIONAL FIRST MORTGAGE BONDS
Additional Bonds of any series may be issued as follows:
(A) against 60% of the net amount of additional property (70% after
the Series R and S First Mortgage Bonds are retired);
(B) to refund a like amount of First Mortgage Bonds of any series
which are not then funded; or
(C) against the deposit of cash (to a limit of $10 million held by
the Trustee at any one time).
When the Series R First Mortgage Bonds are retired, there will be no limit
on the amount of cash that may be deposited with the Trustee. Cash so
deposited with the Trustee may be withdrawn in amounts equal to the principal
amount of First Mortgage Bonds otherwise issuable against additional property
or retired First Mortgage Bonds.
In connection with the issue of First Mortgage Bonds against additional
property or cash (other than cash provided for the retirement of First
Mortgage Bonds) the Company must demonstrate that net earnings for any 12
consecutive calendar months within the preceding 15 months are at least twice
the annual interest charges on all First Mortgage Bonds outstanding and
applied for and on all equal or prior lien indebtedness. For the twelve
months ended March 31, 1995, the ratio of net earnings to annual interest
charges on all Bonds outstanding was 2.91. Except under limited
circumstances, no earnings test is required in connection with the refunding
of a like amount of First Mortgage Bonds.
The Company has the option of using a two-step process in connection with
an issuance of additional First Mortgage Bonds against additional property. In
exercising such option, the Company first must demonstrate to the satisfaction
of the Trustee that the requirements for such an issue (described in clause
(A) immediately above) have been satisfied and then, subject to further
demonstrations in accordance with the Indenture, the Company may request the
issuance of such additional Bonds from time to time.
The New Bonds will be issued against additional property or against First
Mortgage Bonds theretofore retired. As of March 31, 1995, the Company had
approximately $400 million net amount of additional property against which
$240 million of additional First Mortgage Bonds could be issued.
<PAGE>
Pursuant to the limitations described above (the Net Earnings requirement
being most restrictive), the Company, as of March 31, 1995, could have issued
approximately $135 million of additional First Mortgage Bonds.
DIVIDEND RESTRICTION
The Twenty-First Supplemental Indenture for the New Bonds does not contain
provisions restricting the payment of dividends on common stock by the
Company. Dividend restrictions dependent upon earned surplus are binding on
the Company so long as certain prior series of the Company's First Mortgage
Bonds are outstanding. The most restrictive provisions currently binding on
the Company are set forth in the supplemental indenture relating to the Series
R First Mortgage Bonds. Under these provisions, which are applicable so long
as any Series R First Mortgage Bonds are outstanding, approximately $30
million of the Company's retained earnings were unavailable for dividends on
common stock at March 31, 1995.
So long as any preferred stock is outstanding, certain restrictions on
payment of dividends on the common stock would come into effect if the junior
stock equity were, or by reason of payment of such dividends became, less
than 25% of total capitalization. However, the junior stock equity at
March 31, 1995, was 50% of total capitalization and, accordingly, none of the
Company's retained earnings at March 31, 1995, was restricted as to dividends
on common stock under the foregoing restrictions.
PERIODIC INSPECTION OF PROPERTY
Inspection by an independent engineer is required at least once every five
years or more often if requested by the holders of not less than 25% of the
aggregate principal amount of the Bonds at the time outstanding. The Company
is to make good any maintenance deficiency and to record retirements as called
for by the engineer's report.
MODIFICATION OF THE INDENTURE
Any provision of the Indenture may be modified with the consent of the
holders of not less than 66-2/3% of the aggregate principal amount of the
Bonds at the time outstanding (and, if one or more series of Bonds are
differently affected, with the consent of the holders of 66-2/3% of the
aggregate principal amount of the Bonds of each series so affected). No such
modification may (a) affect certain provisions protecting the Trustee without
the Trustee's assent, (b) affect the payment of principal, premium, or
interest on any Bonds, or extend the maturity or time of payment, without the
consent of the Bondholders affected, (c) permit the creation by the Company of
any lien ranking prior to or on a parity with the lien of the Indenture except
as expressly authorized in the Indenture, (d) reduce the above specified
percentages of Bondholders, or (e) permit, in the opinion of the Trustee, a
substantial impairment of the benefits or lien of the Indenture. No such
modification may be made which would conflict with the Trust Indenture Act of
1939, as at the time in effect.
THE TRUSTEE
The Trustee acts as trustee for an affiliate's general and refunding
mortgage bonds. The Trustee also participates in a line of credit of the
parent and an affiliate of the Company. The Trustee is also dividend paying
and transfer agent for the Company's preferred stock.
The Trustee may become the owner or pledgee of First Mortgage Bonds with
the same rights as if it were not the Trustee. The holders of a majority in
aggregate principal amount of the First Mortgage Bonds outstanding may require
the Trustee to take certain action, except when the action would be unlawful,
would involve the Trustee in personal liability, or would be unjustifiably
prejudicial to the nonassenting Bondholders, or when the Trustee would not be
sufficiently indemnified for any expenditures in the action.
<PAGE>
DEFAULTS
The following are defaults under the Indenture: (a) failure to pay
principal when due; (b) failure for 30 days to pay interest after due;
(c) failure to pay any installment of the sinking, replacement, or other
analogous fund for 60 days after due; (d) the expiration of 60 days following
the bankruptcy of, the reorganization of, or the appointment of a receiver
for, the Company; (e) certain other acts of bankruptcy, insolvency, or
reorganization; and (f) failure to perform other provisions of the Indenture
for 60 days following a demand by the Trustee to the Company to cure such
failure. The Trustee may withhold notice to the Bondholders of any default,
except default in the payment of principal, interest, or any sinking fund or
replacement fund installment, if certain officers and directors of the Trustee
determine in good faith that withholding such notice is in the interest of the
Bondholders.
EVIDENCE TO BE FURNISHED TO TRUSTEE
The Company must periodically furnish to the Trustee evidence as to the
absence of default in connection with certain annual sinking fund and
replacement fund requirements and as to compliance with certain other terms of
the Indenture. Furthermore, prior to issuance of additional First Mortgage
Bonds, release of property, withdrawal of cash, and various other actions
under the Indenture, evidence must be furnished as to the absence of default
and as to compliance with certain terms of the Indenture. Whenever all
indebtedness secured by the Indenture shall have been paid, or adequate
provision therefor made, the Trustee shall, upon request of the Company and
receipt by the Trustee of evidence as to compliance with conditions precedent
under the Indenture, cancel and discharge the lien of the Indenture.
EXPERTS
The balance sheets of the Company as of December 31, 1994 and 1993 and the
related statements of income, retained earnings, and cash flows for each of
the three years in the period ended December 31, 1994, all incorporated by
reference in Massachusetts Electric Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994, incorporated by reference in this
prospectus, have been incorporated herein in reliance on the reports of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
The statements of law and legal conclusions made in this prospectus, not
otherwise attributed, have been reviewed by Kirk L. Ramsauer and/or Robert
King Wulff and are made upon their authority as experts.
LEGAL MATTERS
Legal matters in connection with the securities offered hereby will be
passed upon for the Company by Kirk L. Ramsauer, Assistant General Counsel,
and/or Robert King Wulff, Corporation Counsel, 25 Research Drive, Westborough,
Massachusetts, and will be passed upon for the underwriter(s), purchaser(s),
or agent(s) by Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New
York, New York. The opinion of Robert King Wulff and/or Kirk L. Ramsauer as
to legal matters in connection with the securities offered hereby is filed as
an exhibit to the registration statement.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds in any of the following ways:
(i) through competitive bidding; (ii) through negotiation with one or more
<PAGE>
underwriters; (iii) through one or more agents designated from time to time;
(iv) directly to other purchasers; or (v) any combination of the above. The
terms of any offering of the New Bonds, including the name or names of any
underwriters or agents with whom the Company has entered into arrangements
with respect to the sale of such New Bonds, the proceeds to the Company, any
underwriting discounts or commissions and other terms constituting
underwriters' compensation, the initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers, will be set
forth in the prospectus supplement relating to such offering. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If an underwriter or underwriters are involved in the sale of any New
Bonds, the Company will execute an underwriting or purchase agreement with
such underwriters at the time of sale, and the names of the underwriters, the
principal amount of New Bonds to be purchased thereby and the other terms and
conditions of the transaction will be set forth in the prospectus supplement
relating to such sale. The New Bonds will be acquired by the underwriters for
their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale. Unless
otherwise indicated in the prospectus supplement, the underwriting or purchase
agreement will provide that the underwriter or underwriters are obligated to
purchase all of an issue of the New Bonds offered in the prospectus supplement
if any are purchased.
If any New Bonds are sold through an agent or agents designated by the
Company from time to time, the prospectus supplement will name any such agent,
set forth any commissions payable by the Company to any such agent and the
obligations of such agent with respect to such New Bonds. Unless otherwise
indicated in the prospectus supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
In connection with the sale of the New Bonds, any purchasers,
underwriters, or agents may receive compensation from the Company or from
purchasers in the form of concessions or commissions. The underwriters will
be, and any agents and any dealers participating in the distribution of the
New Bonds may be, deemed to be underwriters within the meaning of the
Securities Act of 1933. The agreement between the Company and any purchasers,
underwriters, or agents will contain reciprocal covenants of indemnity between
the Company and the purchasers, underwriters, or agents against certain
liabilities, including liabilities under the Securities Act of 1933.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Filing fees:
Securities and Exchange Commission: Registration Statement$ 34,483
Massachusetts Department of Public Utilities. . . . 19,350
*Services of New England Power Service Company
(including counsel) . . . . . . . . . . . . . . . . 30,000
*Accountant's fees-Coopers & Lybrand L.L.P.. . . . . . . 30,000
*Trustee's fees (including counsel). . . . . . . . . . . 48,000
*Printing and engraving costs. . . . . . . . . . . . . . 10,000
*Rating agency fees. . . . . . . . . . . . . . . . . . . 48,000
*Miscellaneous (including recording and blue sky
expenses, and compensation and
disbursements of Agents' counsel) . . . . . . . . . 35,000
*Total expenses . . . . . . . . . . . . . . . . . . $254,833
========
- ----------
*Estimated
Milbank, Tweed, Hadley & McCloy of New York, New York has been selected by
the Company as independent counsel for the purchasers, underwriters, or
agents, who will pay their compensation and disbursements except as provided
in the purchase, underwriting, and distribution agreements. The above
expenses include such compensations and disbursements.
New England Power Service Company is an affiliated service company
operating pursuant to the provisions of the Public Utility Holding Company Act
of 1935 and the SEC's rules thereunder. The services of New England Power
Service Company are performed at the actual cost thereof.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of Chapter 156B of the General Laws of Massachusetts permits a
corporation to indemnify its directors and officers for good faith actions to
the extent such indemnification is authorized by the corporation's Articles of
Organization, By-Laws, or a vote of a majority of the corporation's
shareholders entitled to elect directors. M.G.L. c. 156B, Sec. 67 is
applicable to the Company by virtue of M.G.L. c. 164, Sec. 4(a). Under the
provisions of the Articles of Organization and By-Laws of the Company, as
amended, the Company will indemnify its directors and officers against
liabilities and expenses, including counsel fees reasonably incurred,
resulting from litigation or threatened litigation in which the director or
officer may be involved by reason of his or her position. Indemnification is
withheld whenever the director or officer is adjudicated "not to have acted in
good faith in the reasonable belief that his action was in the best interests"
of the Company. The Agreement and Declaration of Trust of New England
Electric System (NEES) contains similar provisions for the indemnification by
NEES of the Company's directors and officers. Officers' and directors'
insurance is also provided.
<PAGE>
ITEM 16. EXHIBIT INDEX
EXHIBIT PREVIOUSLY FILED
- ------- ----------------
1-A - Form of Confirmation of Bid with schedules
constituting the form of Purchase Agreement
1-B - Form of Underwriting Agreement
1-C - Form of Distribution Agreement
WITH
REGISTRATION
NUMBER AS EXHIBIT
------ --------
4-A 1-8019 7-A - First Mortgage Indenture and Deed of Trust
dated as of July 1, 1949
4-B - Supplemental Indentures to First Mortgage
NUMBER DATE
------ ----
2-8836 7-B First March 1, 1951
2-9593 4-C Second May 1, 1952
WITH
1980 FORM 10-K
------------
2-8019 4 Third October 1, 1955
2-8019 4 Fourth December 1, 1959
2-8019 4 Fifth July 1, 1961
2-8019 4 Sixth September 1, 1962
2-8019 4 Seventh December 1, 1963
2-8019 4 Eighth March 1, 1966
2-8019 4 Ninth April 1, 1968
2-8019 4 Tenth May 1, 1969
2-8019 4 Eleventh October 1, 1970
2-8019 4 Twelfth October 1, 1972
2-8019 4 Thirteenth October 1, 1975
WITH
1982 FORM 10-K
------------
0-5464 4 Fourteenth October 1, 1982
WITH
1986 FORM 10-K
------------
0-5464 4 Fifteenth June 1, 1986
WITH
1988 FORM 10-K
------------
0-5464 4 Sixteenth December 1, 1988
<PAGE>
WITH
1989 NEES FORM 10-K
------------
1-3446 4(a) Seventeenth July 1, 1989
WITH
1992 NEES FORM 10-K
------------
1-3446 4(a) Eighteenth March 1, 1992
1-3446 4(a) Nineteenth January 1, 1993
WITH
1993 NEES FORM 10-K
------------
1-3446 4(a) Twentieth September 1, 1993
4-C - Form of Supplemental Indenture
4-D - Certificate as to Form
5 - Opinion of Kirk L. Ramsauer, Esq. and/or
Robert King Wulff, Esq. with respect to the
legality of the securities being
registered, containing consent
12 - Statement re: computation of ratios
23 - Consent of Coopers & Lybrand L.L.P.
- Consent of counsel: See Exhibit 5
24-A - Certified copy of vote of Board of
Directors, containing power of attorney
24-B - Power of Attorney
25 - Statement of eligibility and qualification
of State Street Bank and Trust Company
(Form T-1)
26 - Form of Public Invitation for bids
27 - Financial Data Schedule
<PAGE>
UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) To use its best efforts to distribute prior to the opening of bids,
to prospective bidders, underwriters, and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of section
10(a) of the Securities Act of 1933, and relating to the securities offered at
competitive bidding, as contained in this registration statement, together
with any supplements thereto.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act, and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE TOWN OF WESTBOROUGH, THE COMMONWEALTH OF MASSACHUSETTS, ON
THE FIFTH DAY OF MAY, 1995.
MASSACHUSETTS ELECTRIC COMPANY
s/ JOHN H. DICKSON
JOHN H. DICKSON, PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
WE, THE UNDERSIGNED OFFICERS AND DIRECTORS OF MASSACHUSETTS ELECTRIC
COMPANY, HEREBY AUTHORIZE AND DIRECT ROBERT K. WULFF, JOHN G. COCHRANE, AND
JAMES P. MEEHAN, OR SEVERAL OF THEM, AS ATTORNEYS-IN-FACT, TO EXECUTE IN THE
NAME AND ON BEHALF OF EACH OF THE UNDERSIGNED PERSONS, IN THE RESPECTIVE
CAPACITIES INDICATED BELOW, ANY AMENDMENT OR AMENDMENTS TO THIS REGISTRATION
STATEMENT OF MASSACHUSETTS ELECTRIC COMPANY UNDER THE SECURITIES ACT OF 1933.
SIGNATURE AND TITLE
(I) PRINCIPAL EXECUTIVE OFFICER:
s/ JOHN H. DICKSON
JOHN H. DICKSON, PRESIDENT
(II) PRINCIPAL FINANCIAL OFFICER:
s/ MICHAEL E. JESANIS
MICHAEL E. JESANIS, TREASURER
(III) PRINCIPAL ACCOUNTING OFFICER:
s/ HOWARD W. MCDOWELL
HOWARD W. MCDOWELL, CONTROLLER
(IV) DIRECTORS: (A MAJORITY)
URVILLE J. BEAUMONT
JOAN T. BOK
SALLY L. COLLINS
JOHN H. DICKSON
PATRICIA MCGOVERN ALL BY: s/JOHN G. COCHRANE
JOHN F. REILLY, JR.
JOHN W. ROWE JOHN G. COCHRANE
RICHARD P. SERGEL ATTORNEY-IN-FACT
RICHARD M. SHRIBMAN
ROSLYN M. WATSON
DATE (AS TO ALL SIGNATURES ON THIS PAGE)
May 5, 1995
<PAGE>
Page 18 of 18
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
1-A Form of Confirmation of Bid with schedulesFiled herewith
constituting the form of Purchase Agreement
1-B Form of Underwriting Agreement Filed herewith
1-C Form of Distribution Agreement Filed herewith
4-C Form of Supplemental Indenture Filed herewith
4-D Certificate as to Form Filed herewith
5 Opinion of Counsel Filed herewith
12 Statement re computation of ratios Filed herewith
23 Consent of Coopers & Lybrand L.L.P. Filed herewith
24-A Certified copy of vote of Board of Filed under cover
Directors, containing power of attorney of Form SE
24-B Power of Attorney Filed under cover
of Form SE
25 Statement of eligibility and Filed under cover
qualification of State Street Bank of Form SE
and Trust Company (Form T-1)
26 Form of Public Invitation for Bids Filed herewith
27 Financial Data Schedule Filed herewith
<PAGE>
Exhibit 1-A
to Form S-3
CONFIRMATION OF BID
AND, IF BID ACCEPTED,
PURCHASE AGREEMENT
FOR PURCHASE OF $*
FIRST MORTGAGE BONDS, SERIES *, **%, DUE *
(ORIGINAL ISSUE DATE ***)
OF
MASSACHUSETTS ELECTRIC COMPANY
Date: _____________, ____
MASSACHUSETTS ELECTRIC COMPANY
Ladies and Gentlemen:
In accordance with the Terms and Conditions referred to in
the Public Invitation for Bids, dated , for the
purchase of $* principal amount of First Mortgage Bonds, Series
*, **%, due * (Original Issue Date ***) (the Bonds) of
Massachusetts Electric Company (the Company), the undersigned,
acting for and on behalf of the persons, firms, and corporations
named in Schedule A hereto (the Bidders), or in its own behalf
(the Bidder) if no other person, firm, or corporation is named in
Schedule A, hereby confirms to the Company the following bid:
I. Each of the Bidders severally, and not jointly and
severally, or the Bidder, if only one, hereby offers to purchase,
subject to the conditions and provisions set forth in the Terms
of Purchase annexed as Schedule B hereto, the principal amount of
Bonds set forth opposite its name in Schedule A hereto,
aggregating for all Bidders, or for the Bidder, if only one, the
principal amount of the offering, as specified by the Company in
the notice given pursuant to Section 1 of the Terms and
Conditions,
* The series designation, aggregate principal amount, and the
year in which the Bonds mature are as specified by the
Company in the notice given pursuant to Section 1 of the
Terms and Conditions.
** The percentage is the interest rate specified in the
accepted bid.
*** Original Issue Date shall be the Closing Date.
<PAGE>
WITH INTEREST AT THE RATE OF % PER ANNUM AND AT THE
PRICE OF % OF THE PRINCIPAL AMOUNT THEREOF.
Interest shall accrue from the Closing Date (see Section 6
of Schedule B hereto).
II. In consideration of the agreements of the Company set
forth in the Terms and Conditions, each of the Bidders, or the
Bidder, if only one, agrees (a) that the offer of such Bidder
included in this Confirmation of Bid shall be irrevocable until
four hours after the time designated for the submission of bids,
unless sooner rejected by the Company, and (b) if this bid shall
be accepted by the Company in the manner provided in the Terms
and Conditions, that this bid together with all schedules thereto
shall thereupon constitute a Purchase Agreement, effective as of
the date of acceptance written below, for the purchase and sale
of the Bonds, subject, however, to such modification of the
Purchase Agreement as is contemplated by the Terms and
Conditions.
III. Unless earlier accepted or rejected, this bid will be
deemed rejected four hours after the time designated for
submission of bids.
IV. Each of the Bidders, or the Bidder, if only one,
acknowledges receipt of a copy of a prospectus relating to the
Bonds, and if such prospectus has been supplemented or amended, a
copy of each supplement or amendment.
Very truly yours,
By:
Name:
Title:
On behalf of and as Representative(s) of
the persons, firms, and corporations
listed on Schedule A hereto (except in
the case of a single bidder).
Accepted:
MASSACHUSETTS ELECTRIC COMPANY
By:
Date:
THIS CONFIRMATION OF BID MUST BE SIGNED AND SUBMITTED WITH
SCHEDULE A COMPLETED IN FULL.
<PAGE>
SCHEDULE A
PRINCIPAL
AMOUNT
NAME OF BONDS
TOTAL $
<PAGE>
SCHEDULE B
TERMS OF PURCHASE
RELATING TO
FIRST MORTGAGE BONDS, SERIES *, **%, DUE *
(ORIGINAL ISSUE DATE ***)
OF
MASSACHUSETTS ELECTRIC COMPANY
TERMS OF PURCHASE between Massachusetts Electric Company (the
Company), a Massachusetts corporation, and the several Purchasers
named in Schedule A to the confirmation of bid (the Confirmation
of Bid) to which these Terms of Purchase are attached as Schedule
B, the Confirmation of Bid and said Schedules A and B thereto
constituting and hereinafter collectively called the Purchase
Agreement. (The words "herein" and "hereunder", unless
specifically limited, mean "in the Purchase Agreement" and "under
the Purchase Agreement", respectively.)
1. PURCHASERS AND REPRESENTATIVE. The term Purchasers as
used herein shall mean the several persons, firms, or
corporations named in Schedule A to the Confirmation of Bid
(including the Representative hereinafter mentioned); and the
term Representative as used herein shall be deemed to mean the
representative or representatives designated as Representative
by, or in the manner authorized by, the Purchasers and who, by
submitting the bid as such and by signing the Confirmation of
Bid, represent that it or they have been authorized by the
Purchasers to enter into this Purchase Agreement on their behalf
and to act for them in the manner herein provided. If there
shall be only one person, firm, or corporation named in said
Schedule A, the term Purchasers and the term Representative as
used herein shall mean such person, firm, or corporation.
* The series designation, aggregate principal amount, and the
year in which the Bonds mature are as specified by the
Company in the notice given pursuant to Section 1 of the
Terms and Conditions.
** The percentage is the interest rate specified in the accepted
bid.
*** Original Issue Date shall be the Closing Date.
<PAGE>
2. DESCRIPTION OF THE BONDS. The Company proposes to issue
and sell $* principal amount of its First Mortgage Bonds, Series
*, **%, due * (Original Issue Date ***) (the Bonds), to be issued
under an indenture supplemental to the First Mortgage Indenture
and Deed of Trust dated as of July 1, 1949, (as heretofore and
hereafter supplemented, the Indenture), from the Company to State
Street Bank and Trust Company (the Trustee), formerly Second
Bank-State Street Trust Company, successor to The Second National
Bank of Boston. The terms and provisions of the Bonds and of the
Indenture are summarized in the registration statement and in the
prospectus below mentioned.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Purchaser as follows:
(a) With respect to the proposed issue and sale of the
Bonds, the Company has filed a registration statement,
including as a part thereof a prospectus, under the
Securities Act of 1933, as amended (the Securities Act), with
the Securities and Exchange Commission (the Commission).
Said registration statement has become effective, and the
prospectus in the registration statement as now effective
(the Registration Statement) meets the requirements of
section 10(a) of the Securities Act. The Company will file a
supplement to the prospectus (the Supplement) with respect to
the Bonds to reflect the results of the bidding pursuant to
the rules and regulations under the Securities Act, after
giving the Representative an opportunity to examine and make
objections of substance to the Supplement. Such examination
shall not limit or affect the rights of any Purchaser in
respect of any representation, warranty, or covenant of
indemnity by the Company herein contained. Before filing any
other supplement or amendment to the Registration Statement
or the Supplement with respect to the Bonds, the Company will
afford the Representative an opportunity to examine it and
any documents incorporated therein and to make objections of
substance thereto. The Representative shall have the right
to terminate this Purchase Agreement, without liability on
the part of any Purchaser, if the Company shall file the
Supplement or any other supplement or amendment to the
prospectus to which the Representative shall reasonably so
object in writing.
(b) Said prospectus and the Registration Statement have
been, and the Supplement and each other supplement or
amendment thereto will be, carefully prepared in conformity
with the requirements of the Securities Act and the rules,
regulations, and releases of the Commission thereunder; the
Registration Statement contains all statements which are
required to be incorporated or stated therein in accordance
<PAGE>
with the Securities Act and the rules, regulations, and
releases thereunder, and will in all material respects
conform to the requirements thereof; said prospectus, as
supplemented when the Supplement is filed (the Prospectus),
will contain or incorporate therein all statements made in
the Registration Statement which the Prospectus is required
to contain and will in all material respects conform to the
requirements of the Securities Act and the rules,
regulations, and releases thereunder; wherever the terms
prospectus, Prospectus, registration statement, or
Registration Statement are used herein, they shall be deemed
to include all documents incorporated by reference therein
pursuant to the requirements of Form S-3 under the Securities
Act, and such documents incorporated or to be incorporated by
reference therein have been or will be prepared and filed
with the Commission in a timely manner and in accordance with
the provisions of the Securities Exchange Act of 1934 (the
Exchange Act) and applicable rules, regulations, and releases
thereunder; neither the Registration Statement nor the
Prospectus will include any untrue statement of a material
fact or omit to state a material fact which (in the case of
the Registration Statement) is required to be incorporated or
stated therein or is necessary to make the statements therein
or incorporated therein not misleading or which (in the case
of the Prospectus) is necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the
foregoing representations and warranties shall not apply to
statements or omissions made in reliance on written
information furnished to the Company by the Purchasers, or by
and through the Representative on behalf of any Purchaser, or
to statements or omissions in the Statement of Eligibility
and Qualification of the Trustee under the Indenture.
(c) The financial statements of the Company included or
incorporated by reference in the Registration Statement will
be correct and complete and will truly present the financial
position of the Company as at the dates stated therein and
the results of the operations of the Company for the periods
stated therein. The Company had, on the date of the latest
financial statements included or incorporated by reference in
the Registration Statement, no material liabilities or
obligations, fixed or contingent, other than those disclosed
in the Registration Statement or such financial statements,
and since that date the Company has not incurred any material
liabilities or obligations still outstanding, fixed or
contingent, other than (i) in the ordinary course of
business, (ii) as a result of transactions described in the
prospectus included in the Registration Statement, or (iii)
short-term borrowings which result in short-term note
<PAGE>
indebtedness of not exceeding, in the aggregate at any one
time outstanding, the limitations then authorized for the
Company by the Commission under the Public Utility Holding
Company Act of 1935 (the 1935 Act). Since the date of the
latest financial statements included or incorporated by
reference in the Registration Statement, there has not been
any material adverse change in the financial condition of the
Company not disclosed in the prospectus included in the
Registration Statement. Except as described in said
prospectus, there are no proceedings at law or in equity or
before any federal or state commission or other public
authority the result of which might have a material adverse
effect upon the financial condition of the Company.
(d) Coopers & Lybrand L. L. P., who have certified
certain of the financial statements filed with the
Commission, are independent certified public accountants as
required by the Securities Act and the rules, regulations,
and releases thereunder.
(e) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this Purchase Agreement will not violate any of the terms,
conditions, or provisions of, or constitute a default under,
any franchise, indenture, or other contract or agreement to
which the Company is now a party or by which the Company or
its property may be bound or affected, or the Company's
charter, by-laws, or preferred stock provisions, or any order
of any court or administrative agency by which the Company is
bound.
(f) The issue and sale of the Bonds are solely for the
purpose of financing the business of the Company.
4. INFORMATION FROM AND WARRANTIES OF THE PURCHASERS. Each
Purchaser, in addition to other information furnished to the
Company for use in the Prospectus, is contemporaneously
furnishing and will continue to furnish to the Company through
the Representative for use in the Prospectus the information to
be stated therein with regard to the public offering to be made
by the Purchasers, any further information regarding the
Purchasers and such public offering which may be required under
the 1935 Act, and all other information required by law in
respect of the purchase and sale of the Bonds. Each Purchaser
warrants and represents to the Company, each of the officers and
directors of the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act,
and each other Purchaser that all information furnished at any
time in writing to the Company by such Purchaser, or by or
<PAGE>
through the Representative on behalf of such Purchaser, for use
in the Prospectus, will not contain an untrue statement of a
material fact and will not omit to state any material fact which
is necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
5. PURCHASE AND SALE OF BONDS. The Company will sell to
each Purchaser and each Purchaser will severally purchase from
the Company, at the price specified in paragraph I of the
Confirmation of Bid, at the time and place, in the manner, and
upon the terms and conditions hereinafter set forth, the
principal amount of Bonds set forth opposite its name in Schedule
A to the Confirmation of Bid, which amount may be increased in
accordance with paragraph (a) of Section 12 hereof.
All obligations of the Purchasers hereunder are several, and
not joint or joint and several, and nothing herein shall
constitute the Purchasers copartners of each other.
6. TIME AND PLACE OF CLOSING; DELIVERY AND PAYMENT. The
term Closing Date wherever used herein shall mean the eighth day
(or if such day is not a full business day, the next full
business day thereafter) following the date hereof, or such other
date as shall be specified in the notice referred to in Section 1
of the Terms and Conditions, or as shall be agreed in writing by
the Company and the Representative (subject to postponement in
accordance with the provisions of Section 12 hereof).
Payment for the Bonds, as provided in Section 5 hereof, shall
be made at the office of Peabody & Arnold, Boston, Massachusetts,
at 10 a.m., Boston time, on the Closing Date. Payment shall be
made to the Company or its order in immediately available
current-day funds by certified check or checks drawn on, or by
official check or checks of, State Street Bank and Trust Company,
or in Boston Federal Reserve Bank Funds. Payment for the Bonds
may also be made by a FedWire electronic funds transfer to
Massachusetts Electric Company's General Funds Account, Number
514-22952, at Bank of Boston, Boston, Massachusetts. Such
payment shall be made upon delivery of the Bonds to the
Representative for the respective accounts of the Purchasers,
such delivery to be made at the offices of State Street Bank and
Trust Company, N.A., 61 Broadway, New York, New York 10006. The
Bonds will be delivered, at the option of the Company, either in
temporary or definitive form. If delivered in temporary form,
each will be in the denomination of $1,000, and an exchange of
temporary Bonds for fully-registered Bonds in definitive form
will be made as soon as practicable and without charge to the
holders thereof. If delivered in definitive form, the Bonds will
be in fully-registered form and will be registered in such name
or names and in such denominations of $1,000 or integral
<PAGE>
multiples thereof as the Representative may request not later
than 10 a.m., Boston time, on the third full business day prior
to the Closing Date. If no such direction is received, the Bonds
will be registered in the names of the respective Purchasers in
denominations selected by the Company.
The Company will make such Bonds available to the
Representative for examination at the place of delivery, not
later than 2 p.m., Boston time, on the first full business day
prior to the Closing Date.
The Representative, individually and not as the
Representative, may (but shall not be obligated to) make payment
to the Company for the Bonds to be purchased by any Purchaser
whose funds shall not have been received by the Representative as
of the Closing Date, for the account of such Purchaser. Any such
payment by the Representative shall not relieve such Purchaser
from any of its obligations hereunder, but the Representative
shall succeed to the right of the Company to receive the amount
of such payment from such Purchaser.
7. COVENANTS OF THE COMPANY. The Company agrees that:
(a) The Company will promptly deliver to the
Representative a certified copy of the registration statement
with respect to the Bonds, as originally filed, and of all
amendments thereto heretofore or hereafter made, including a
copy of each consent and certificate included or incorporated
by reference therein or filed as an exhibit thereto (but
excluding any other exhibit thereto unless specifically
requested by the Representative). The Company will deliver
to the Representative in New York or Boston, as requested, as
soon as practicable after the filing of the Supplement, and
thereafter from time to time during the nine-month period
commencing on the date hereof, as many unsigned copies of the
Prospectus (as supplemented or amended, if the Company shall
have made any supplements or amendments thereto) and any
documents incorporated by reference therein as the
Representative may reasonably request for purposes
contemplated by the Securities Act.
(b) The Company will advise the Representative
immediately by telegraph or other means of communication and
confirm the advice in writing:
(i) when the Supplement has been filed;
<PAGE>
(ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement, or of the initiation of any proceedings for
that purpose, and agrees, if any such stop order should
be entered by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof as soon
as possible;
(iii) of the issuance by the Massachusetts
Department of Public Utilities (MDPU) of any order
altering, suspending, supplementing, or otherwise
affecting its order permitting the issue and sale of the
Bonds;
(iv) of any action by the Commission which has the
effect of eliminating the exemption from the requirement
of obtaining an order under the 1935 Act provided under
Rule 52 promulgated thereunder; and
(v) of the commencement of any litigation in
connection with the Bonds against the Company or any of
its directors or any signer of the Registration
Statement.
(c) During the six-month period commencing on the
effective date of this Purchase Agreement, the Company will
use its best efforts, when and as requested by the
Representative, to furnish information and otherwise
cooperate in qualifying the Bonds for the purposes of any
public offering by the Purchasers under securities or
"blue-sky" laws of such states as the Representative may
designate; provided that the Company shall not be obligated
to qualify as a foreign corporation in, or consent to service
of process under the laws of, any state, or to meet other
requirements deemed by it to be unduly burdensome. The
Company will pay or reimburse the Representative in an
aggregate amount not exceeding $3,000 for the filing fees and
expenses in connection with any qualification referred to in
this paragraph.
(d) The Company will pay all expenses in connection
with (i) the preparation and filing by it of the Registration
Statement and the Prospectus and any supplement or amendment
thereto, (ii) the issue and delivery of the Bonds, and (iii)
the printing of the Prospectus and any supplement and
amendment thereto and the delivery of reasonable quantities
of copies thereof to Purchasers. The Company will pay all
federal and state taxes (except transfer taxes) on the issue
of the Bonds. The Company shall not, however, be required to
<PAGE>
pay any amount for the expenses of the Representative or of
any Purchasers, except as provided in paragraphs (c) and (e)
of this Section. The fees and disbursements of Milbank,
Tweed, Hadley & McCloy (the Purchasers' Counsel) shall be
paid by the Purchasers, except as provided in paragraph (e)
of this Section; and in the event that the fees of
Purchasers' Counsel shall be reduced from the amount stated
by such counsel to the Representative, an amount equal to
such reduction shall be paid to the Company by or on behalf
of the Purchasers.
(e) If the Purchase Agreement shall be terminated
pursuant to any of the provisions hereof, the Company will
pay the reasonable fees and disbursements of Purchasers'
Counsel and the filing fees and expenses referred to in
paragraph (c) of this Section. If the Purchasers shall not
take up and pay for the Bonds due to the failure of the
Company to comply with any of the conditions specified in
Section 8 hereof, the Company will reimburse the Purchasers
in an aggregate amount not exceeding $2,000 for their
reasonable out-of-pocket expenses incurred in connection with
the financing contemplated by this Purchase Agreement. The
Company shall not in any event be liable to any of the
Purchasers for damages on account of loss of anticipated
profits.
(f) During the nine-month period commencing on the
date hereof, if any event known to the Company or of which
the Company shall be advised by the Representative shall
occur which should be set forth in a supplement to or an
amendment of the Prospectus or in any document to be
incorporated by reference therein in order to make the
Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the
Company will so advise the Representative and, upon request
from the Representative, will forthwith at the Company's
expense, or at the expense of the Purchasers if the only
event occasioning the supplement or amendment is a change in
the purchasing or distribution arrangements, prepare and
furnish to the Representative (in form satisfactory to
Purchasers' Counsel) a reasonable number of copies of a
supplemented or amended prospectus or the document
incorporated therein or, at the option of the Company, a
reasonable number of appropriate supplements to be attached
to the Prospectus, so that the Prospectus as supplemented or
amended will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. In case any Purchaser
<PAGE>
is required to deliver a prospectus descriptive of the Bonds
more than nine months after the date hereof, the Company,
upon the request of the Representative, will furnish to the
Representative, at the expense of such Purchaser, a
reasonable quantity of copies of a supplemented or amended
prospectus meeting the requirements of Section 10(a) of the
Securities Act.
(g) The Company will make generally available to its
security holders, as soon as practicable, an earnings
statement (which need not be certified) covering a
twelve-month period commencing subsequent to the date hereof,
which earnings statement shall satisfy the requirements of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.
8. CONDITIONS OF PURCHASERS' OBLIGATIONS. The obligations
of the several Purchasers to purchase and pay for the Bonds shall
be subject to the performance by the Company of its obligations
hereunder and the following conditions:
(a) Prior to 7 P.M., Boston time, on the date hereof,
the Indenture shall have been qualified under the Trust
Indenture Act of 1939, there shall have been issued an order
of the MDPU, to the extent it has jurisdiction, permitting
the issue and sale of the Bonds, and at such time and on the
Closing Date such order shall not contain any provision
which, in the opinion of the Representative or the Company,
is unduly burdensome to the Company, it being understood that
such order as is now in effect does not contain any such
unduly burdensome provision.
(b) All legal proceedings to be taken and all legal
opinions to be rendered in connection with the issue and sale
of the Bonds shall be satisfactory to Purchasers' Counsel.
Prior to or concurrently with the delivery of the Bonds, the
Representative shall have received the following opinions and
letter, with printed or duplicated copies thereof for each of
the Purchasers, with such changes therein as may be agreed
upon by the Company and the Representative with the approval
of Purchasers' Counsel:
(i) Opinion of Robert King Wulff, Esquire and/or
Kirk L. Ramsauer, Esquire, counsel for the Company,
substantially in the form attached hereto as Exhibit 1;
(ii) Opinion of Purchasers' Counsel substantially
in the form attached hereto as Exhibit 2; and
<PAGE>
(iii) Letter of Coopers & Lybrand L. L. P., dated
the Closing Date and addressed to the Company and to the
Representative, confirming that they are independent
certified public accountants with respect to the Company
within the meaning of the Securities Act and the
applicable published rules and regulations thereunder,
and stating in effect:
(1) that in their opinion the financial
statements and financial statement schedules
(included or incorporated by reference in the
Registration Statement) examined by them as stated
in their report (incorporated by reference in the
Registration Statement) comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and of the
published rules and regulations thereunder;
(2) that on the basis of a reading of the
minutes of the meetings of the stockholders and the
Board of Directors of the Company held during any
period subsequent to ____, and not covered by the
financial statements referred to in paragraph (1)
of this clause, as set forth in the minute books
through a specified date not more than five
business days prior to the date of their letter, a
reading of the unaudited financial statements of
the Company included or incorporated by reference
in the Registration Statement, and inquiries of
officials of the Company who have responsibility
for financial and accounting matters (which
procedures do not constitute an examination made in
accordance with generally accepted auditing
standards), they agree that, if any unaudited
amounts of total operating revenue and net income
are set forth or incorporated by reference in the
Registration Statement, including amounts set forth
under "Selected Financial Information", they agree
with the corresponding amounts set forth in the
unaudited financial statements for that period.
Those officials of the Company who have
responsibility for financial and accounting matters
stated:
(i) that the unaudited financial statements
included or incorporated by reference in the
Registration Statement comply as to form in
all material respects with the applicable
accounting requirements of the Exchange Act
<PAGE>
and the published rules and regulations
thereunder, and that said financial statements
are in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the
audited financial statements included or
incorporated by reference in the Registration
Statement;
(ii) during the period from the date of the
latest financial statements incorporated by
reference in the Registration Statement
through a specified date not more than five
business days prior to the date of their
letter, there was no change in the capital
stock and no increase in long-term debt of the
Company;
(3) that they have compared the dollar
amounts contained in Exhibit 12 (Computation of
Ratio of Earnings to Fixed Charges) to the
Registration Statement with such dollar amounts
derived from the unaudited financial statements
incorporated by reference in the Registration
Statement, general accounting records of the
Company or from schedules prepared by the Company
or derived directly from such records or schedules
by analysis or computation, and have found such
dollar amounts to be in agreement, and have
recalculated the ratios contained in Exhibit 12 and
have found the calculation of such ratios to be
mathematically correct, except in each case as
otherwise stated in said letter.
(c) At the time of the delivery of the Bonds:
(i) no stop order suspending the effectiveness of
the Registration Statement shall have been entered and
be in effect, no proceeding for that purpose shall be
pending, and any request on the part of the Commission
for amendments or additional information shall have been
complied with to its satisfaction;
(ii) the order of the MDPU referred to in paragraph
(a) of this Section shall remain in force and effect;
and
(iii) the representations and warranties of the
Company herein shall be true and correct;
<PAGE>
and the Representative shall have received a certificate
signed by an officer of the Company to such effect, to the
best of his knowledge, information, and belief.
If any provision of this Section is not fulfilled at or prior
to the delivery of the Bonds, this Purchase Agreement may be
terminated by the Representative (with the consent of Purchasers,
including the Representative, who have agreed to purchase in the
aggregate 50% or more in principal amount of the Bonds) upon
delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party, except as otherwise provided in paragraph (e) of Section
7.
9. CONDITIONS OF THE COMPANY'S OBLIGATION. The obligation
of the Company to deliver the Bonds is subject to the following
conditions:
(a) The conditions set forth in paragraphs (a),
(c)(i), and (c)(ii) of Section 8 hereof.
(b) Concurrently with the delivery of the Bonds, the
Company shall receive the full purchase price for all of the
Bonds.
If any provision of this Section is not fulfilled at or prior
to the delivery of the Bonds, this Purchase Agreement may be
terminated by the Company, by written notice delivered to the
Representative. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (e) of Section 7.
10. TERMINATION. This Purchase Agreement may be terminated
at any time prior to the Closing Date by the Representative (with
the consent of Purchasers including the Representative who have
agreed to purchase in the aggregate 50% or more in principal
amount of the Bonds), upon notice thereof to the Company, if
prior to such time (a) there shall have occurred any general
suspension of trading in securities on the New York Stock
Exchange or there shall have been established by the New York
Stock Exchange, the Commission, or any Federal or state agency or
by the decision of any court, any limitation on prices for such
trading or any restrictions on the distribution of securities,
(b) a banking moratorium shall have been declared either by
Federal or New York State authorities, or (c) there shall have
occurred 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 (c) in the judgement of the
<PAGE>
Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Bonds on the
terms and in the manner contemplated by the Prospectus. Any
termination of this Purchase Agreement pursuant to this Section
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (e) of Section 7.
11. INDEMNIFICATION. (a) The term Bidding Prospectus as
used in this Section 11 shall mean the prospectus included in the
registration statement on the date of its initial effectiveness
and such prospectus as and if amended or supplemented prior to
the date this Purchase Agreement becomes effective and shall also
include all preliminary prospectuses. The terms Registration
Statement and Prospectus as used in this Section 11 shall mean
said documents as defined, respectively, in Sections 3(a) and
3(b) hereof and shall also include each and every amendment of
and supplement to said documents, respectively, furnished by the
Company to the Purchasers or to the Representative for
distribution to the Purchasers. No indemnity by the Company
hereunder shall apply in respect of (i) any Prospectus or Bidding
Prospectus used at a time not authorized under the Securities Act
or this Purchase Agreement, (ii) any Prospectus or Bidding
Prospectus used in unamended or unsupplemented form after the
same has been amended or supplemented, provided the Company has
supplied such amendment or supplement to the Purchasers or to the
Representative for distribution to the Purchasers, or (iii) any
Purchaser, or any person controlling such Purchaser, on account
of any loss, claim, or liability arising by reason of any person
acquiring any of the Bonds, if a copy of the Prospectus has not
been sent or given by a Purchaser or a securities dealer to such
person with or prior to the written confirmation of the sale
involved. No use of any Bidding Prospectus is authorized after
the acceptance by the Company of the bid.
(b) The Company will indemnify and hold harmless each
Purchaser and each person, if any, who controls any Purchaser
within the meaning of Section 15 of the Securities Act against
any loss, claim, or liability, joint or several (including the
reasonable cost of investigating or defending any such alleged
loss, claim, or liability and reasonable counsel fees incurred in
connection therewith), arising by reason of any person acquiring
any of the Bonds, on the ground that the Registration Statement,
the Prospectus, or the Bidding Prospectus includes or included an
untrue statement of a material fact or omits or omitted to state
a material fact which (in the case of the Registration Statement)
is or was required to be stated therein or is or was necessary to
make the statements therein not misleading or which (in the case
of the Prospectus or the Bidding Prospectus) is or was necessary
to make the statements therein, in the light of the circumstances
<PAGE>
under which they were made, not misleading, unless such statement
or omission was made in reliance upon written information
furnished to the Company by any Purchaser, or by and through the
Representative on behalf of any Purchaser, for use therein, or
unless such statement or omission shall occur in the Statement of
Eligibility and Qualification under the Trust Indenture Act of
1939 of the Trustee under the Indenture. For purposes of the
foregoing, no Purchaser shall be deemed to be required to send or
give a copy of documents incorporated by reference in the
Prospectus to any person with or prior to the written
confirmation of the sale involved in order to be entitled to the
benefits of the indemnification provided for herein. Upon
commencement of any such suit, if any Purchaser or any such
controlling person wishes to make a claim in respect thereof
against the Company under its agreement herein contained, such
Purchaser or such controlling person, as the case may be, shall,
within thirty days after the summons or other first legal process
giving information of the nature of the claim shall have been
served upon such Purchaser or upon such controlling person (or
after he shall have received notice of such service on any
designated agent), give notice in writing of such suit to the
Company; but failure so to notify the Company shall not relieve
it from any liability which it may have to the person against
whom such suit is brought, otherwise than on account of its
indemnity agreement contained in this paragraph. The Company
will be entitled to participate at its own expense in the defense
or, if it so elects, to assume the defense of any such suit, and,
if the Company elects to assume the defense, the defendant or
defendants therein will be entitled to participate in the defense
but shall bear the fees and expenses of any additional counsel
retained by them, unless the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(c) Each Purchaser will indemnify and hold harmless the
Company and each of its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15
of the Securities Act, to the same extent as the Company in the
foregoing paragraph (b) agrees to indemnify and hold harmless
each Purchaser, but only with respect to any written information
furnished to the Company by such Purchaser, or by and through the
Representative on behalf of such Purchaser, for use in the
Prospectus. If any action shall be brought hereunder against the
<PAGE>
Company or any such officer, director, or controlling person,
such Purchaser shall have the rights and duties given to the
Company by paragraph (b), and the Company or such officer,
director, or controlling person shall have the rights and duties
given to such Purchaser by said paragraph.
(d) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, or liability in such
proportion as is appropriate to reflect not only the relative
benefits received by the Company on the one hand and the
Purchaser on the other but also the relative fault of the Company
on the one hand and of the Purchaser on the other in connection
with the statement or omission that resulted in such loss, claim,
or liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and by the Purchaser on the other in connection with
the offering shall be deemed to be in the same proportion as the
total net proceeds from the offering, before deducting expenses,
received by the Company bear to the total underwriting discounts
or commissions, if any, received by all of the Purchasers, in
each case as set forth in the table on the cover page of the
Prospectus. If there are no such underwriting discounts or
commissions so set forth, the relative benefits received by the
Purchaser shall be the difference between the price received by
the Purchaser upon sale of the Bonds and the price paid for the
Bonds pursuant to this Purchase Agreement. The relative fault of
the Company on the one hand and of the Purchaser on the other
shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact or
the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Purchaser and
the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnities contained in this Section and all the
representations and warranties contained in this Purchase
Agreement shall survive the delivery of the Bonds.
12. SUBSTITUTION OF PURCHASERS. (a) If one or more
Purchasers fail or refuse to take up and pay for the entire
principal amount of Bonds that it or they agreed to purchase
under this Purchase Agreement and the aggregate principal amount
<PAGE>
of Bonds which all such defaulting Purchasers shall have failed
to purchase does not exceed ten percent of the aggregate
principal amount of the Bonds, the nondefaulting Purchasers shall
have the right and are obligated severally to take up and pay for
(in addition to the principal amounts of Bonds set forth opposite
their respective names in Schedule A to the Confirmation of Bid)
the total principal amount of Bonds agreed to be purchased by all
such defaulting Purchasers in the respective proportions which
the principal amounts set forth opposite the names of the
nondefaulting Purchasers in Schedule A bear to the aggregate
principal amount so set forth opposite the names of all such
nondefaulting Purchasers; provided, however, that no Bonds of
denominations smaller than $1,000 are to be delivered and, if
Bonds of smaller denominations would result from the aforesaid
proportions, such smaller denominations shall be combined and the
resulting $1,000 Bond or Bonds shall be delivered to, and shall
be purchased by, such Purchaser or Purchasers as the
Representative shall designate. In such event, the
Representative, for the accounts of the several nondefaulting
Purchasers, may take up and pay for all or any part of such
principal amount of Bonds to be purchased by each remaining
Purchaser under this paragraph and, in order to effect necessary
changes in the Registration Statement, Prospectus, and other
documents and arrangements, may postpone the Closing Date not
more than four full business days.
(b) If one or more of the Purchasers shall fail or refuse to
take up and pay for the entire principal amount of Bonds which it
or they have agreed to purchase under this Purchase Agreement and
the aggregate principal amount of Bonds which all such defaulting
Purchasers shall have failed to purchase exceeds ten percent of
the aggregate principal amount of the Bonds, the nondefaulting
Purchasers, or any one or more of them, at 10 A.M., Boston time,
on the Closing Date or within 24 hours thereafter, shall have the
right to take up and pay for (in such proportion as may be agreed
upon among them so long as no Bonds of denominations smaller than
$1,000 are to be delivered), or to substitute another Purchaser
or Purchasers to take up and pay for, the total principal amount
of Bonds agreed to be purchased by all such defaulting
Purchasers. In the event that the nondefaulting Purchasers shall
not take up and pay for all the Bonds which the defaulting
Purchasers shall have agreed but failed to purchase, or
substitute another Purchaser or Purchasers, as aforesaid, the
Company shall have the privilege of finding and substituting
within a further 24-hour period another Purchaser or Purchasers
to purchase the principal amount of Bonds which the defaulting
Purchasers agreed but failed to purchase. (The term Purchaser as
used in this Purchase Agreement shall refer to and include each
Purchaser substituted under this paragraph with the same effect
<PAGE>
as if said substituted Purchaser had originally been named in
Schedule A to the Confirmation of Bid.) In any such case, either
the Company or the Representative shall have the right to
postpone the Closing Date not more than seven full business days,
in order that necessary changes in the Registration Statement,
the Prospectus, and any other documents and arrangements may be
effected. If said nondefaulting Purchasers shall not take up and
pay for such principal amount of Bonds, or substitute another
Purchaser or Purchasers therefor, and the Company shall not
substitute another Purchaser or Purchasers therefor, all as
aforesaid, then this Purchase Agreement shall terminate without
any liability on the part of the Company (except as otherwise
provided in paragraph (e) of Section 7) or of any nondefaulting
Purchaser. Nothing contained in this paragraph shall obligate
any Purchaser to purchase or find purchasers for any principal
amount of Bonds in excess of the amount agreed to be purchased by
such Purchaser under the terms of Section 5, nor shall anything
in this paragraph relieve any defaulting Purchaser of any
liability to the Company which it might otherwise have.
13. PERSONS ENTITLED TO BENEFIT OF PURCHASE AGREEMENT. This
Purchase Agreement shall inure to the benefit of the Company and
the Purchasers (and, as to the provisions of Section 11, the
other persons indemnified thereunder) and their respective
successors and assigns. Nothing in this Purchase Agreement is
intended or shall be construed to give to any other person, firm,
or corporation any legal or equitable right, remedy, or claim
under or in respect of this Purchase Agreement or any provision
herein contained. The term "successors and assigns" as used in
this Purchase Agreement shall not include any purchaser, as such
purchaser, of any of the Bonds from any of the Purchasers.
14. NOTICES. Any request, consent, notice, or other
communication on behalf of the Purchasers shall be given in
writing by the Representative addressed to the Treasurer of the
Company at 25 Research Drive, Westborough, Massachusetts 01582,
and any notice or other communication by the Company to the
Purchasers shall be given in writing to the Representative, at
its address stated in the Questionnaire furnished pursuant to
Section 2 of the Terms and Conditions.
15. EFFECTIVENESS OF PURCHASE AGREEMENT. The date on which
this Purchase Agreement is effective is the date stated by the
Company in the written acceptance of the Bid.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts.
<PAGE>
17. COUNTERPARTS. This Agreement may be executed by one or
more of the parties hereto in any number of counterparts, each of
which shall be deemed an original, but all counterparts shall
together constitute one and the same instrument.
<PAGE>
Exhibit 1 to
Terms of Purchase
PROPOSED FORM OF OPINION
OF
(ORIGINAL ISSUE DATE: )
COUNSEL FOR THE COMPANY
, 19
As Representative(s) of the Several Purchasers
Re: MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bonds, Series , %, due
Dear Representative(s):
We have acted as counsel for Massachusetts Electric Company
(the Company) in connection with the issue by it of $
principal amount of First Mortgage Bonds, Series , %, due
(Original Issue Date: ) (the Bonds), and are therefore familiar
with the proceedings taken in connection therewith. The Company
is a subsidiary of New England Electric System.
This opinion is furnished to you pursuant to Section 8(b)(i)
of the Purchase Agreement which became effective on ,
19 , between you as purchaser of the Bonds and the Company and
is being delivered on the Closing Date referred to therein,
concurrently with said issuance of Bonds.
The Bonds are being issued under the Company's First Mortgage
Indenture and Deed of Trust dated as of July 1, 1949 (the
Original Indenture), as supplemented and amended by
supplemental indentures (the Original Indenture and all
supplemental indentures being collectively referred to herein as
the Indenture).
We are of opinion that:
1. The Company is a corporation validly organized and duly
existing under the laws of The Commonwealth of Massachusetts, has
the corporate power to transact the electric business in which it
is now engaged, and has franchises adequate for carrying on such
business.
<PAGE>
2. The Company had full power and authority to accept your
bid for the Bonds, and the Purchase Agreement has been duly
authorized, executed, and delivered by the Company.
3. The Company had corporate power proper and adequate for
making the Indenture which was duly executed and delivered in
accordance with proper authority from the stockholders and
directors of the Company. The Supplemental Indenture,
including Schedule A thereto, contains a correct and adequate
description of the real estate, rights or interests in real
estate, and fixed property of the Company acquired up to ,
19 , and not included in the Original Indenture or the previous
supplemental indentures, and now owned of record, except for the
properties expressly excluded from the Indenture.
4. All filings and recordings of or in respect of the
Indenture have been duly made where such filings and recordings
are necessary for the preservation or protection of the lien
thereof, and the Indenture is a valid, binding, and enforceable
instrument subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and to
the effects of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law).
5. The Company has corporate power proper and adequate for
the execution and issuance of the Bonds under the Indenture and
in accordance with due authorization from the stockholders and
directors of the Company and based in part upon certificates by
an officer of the Company and by an officer of the trustee under
the Indenture as to execution, certification, and delivery, the
Bonds have been duly issued and are valid and binding obligations
of the Company and entitled to the benefits and security of the
Indenture (subject to the qualification stated in paragraph 4
above).
6. The Bonds, together with all other now outstanding First
Mortgage Bonds of the Company, are secured by a first mortgage
lien on substantially all the properties and franchises now owned
by the Company, subject to the property specifically excepted in
the granting clauses of, and to the liens permitted by, the
Indenture, including the prior lien of the Trustee for
compensation, expenses, and liabilities; and, except as
aforesaid, there is no existing indebtedness secured by lien on
the property securing such Bonds ranking prior to or on a parity
with the lien securing such Bonds.
<PAGE>
7. The property specifically described as mortgaged property
in the Indenture constitutes substantially all of the property
owned by the Company and used by, or useful to, it in its
business, except for the property expressly excepted from the
Indenture. None of the real estate and rights in real estate
described in the schedules to the Indenture and which constitute
the principal properties of the Company is excluded from the lien
of the Indenture by virtue of the provisions of clause (c) of the
paragraph in the Original Indenture beginning "But Specifically
Reserving, Excepting and Excluding," and as to the remainder of
the properties described in said schedules the exclusions, if
any, by virtue of said clause (c) are minor.
8. The principal substations of the Company are in general
on land owned by the Company, the balance being upon land of
others pursuant to lease or other arrangements. The electric
lines and related equipment of the Company are in general on land
of others, being in substantial part located upon, over, or under
public streets or highways and in part upon, over, or under
private ways or other property not owned by the Company, such
occupation of private property in general pursuant to easements,
licenses, or permits from owners thereof, but without examination
of titles, or pursuant to long user, a majority of the poles
being owned jointly with others, principally telephone companies.
9. With respect to the issue and sale of the Bonds, an
appropriate order has been issued by the Massachusetts Department
of Public Utilities, to the extent it has jurisdiction,
authorizing the issue and sale of the Bonds; the Company is
exempted by Rule 52 under the Public Utility Holding Company Act
of 1935 (the l935 Act) from the requirement of an order of the
Securities and Exchange Commission (the Commission); the
Indenture has been qualified under the Trust Indenture Act of
1939; the Registration Statement referred to below has become
effective under the Securities Act of 1933, as amended (the
Securities Act); said order and said Registration Statement
remain, to the best of our knowledge, in effect at this date; and
no other approval, consent, or action of any governmental or
regulatory authority is required for the issue and sale of the
Bonds or the carrying out of the provisions of the Purchase
Agreement (except under the so-called blue-sky or securities laws
of the several states in connection with sales by you and others
of the Bonds, the applicability of which we have not considered
and as to which we express no opinion).
10. The statements upon our authority made or incorporated
by reference in the registration statement, as amended by all
amendments thereto, filed with the Commission under the
Securities Act (the Registration Statement) and in the prospectus
<PAGE>
dated , 19 , as supplemented by the prospectus
supplement dated , 19 , relating to the Bonds (the
Prospectus) are correct; the Registration Statement and the
Prospectus, including all documents incorporated by reference
therein in accordance with the requirements of Form S-3 under the
Securities Act (except for the financial statements contained or
incorporated by reference therein, as to which we express no
opinion), comply as to form in all material respects with the
relevant requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended, and of the applicable rules,
regulations, and releases of the Commission thereunder; and the
Bonds conform to the description thereof in the Registration
Statement and Prospectus. While we have not made a detailed
review of the accuracy or completeness of other information in,
or incorporated by reference in, the Registration Statement and
Prospectus and assume no responsibility therefor, nothing has
come to our attention which leads us to believe that either the
Registration Statement or the Prospectus, or the documents
incorporated by reference therein, contains any untrue statement
of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as amended and supplemented,
contains an untrue statement of a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
The above opinion, insofar as it relates to mortgaging of
franchises, relates to the mortgaging of secondary franchises and
not to the mortgaging of the Company's primary franchise to be a
corporation. The above opinion insofar as it relates to the
execution and delivery of the Original Indenture and certain
supplemental indentures prior to the
Supplemental Indenture is based upon opinions of other counsel
for the Company. The above opinion, insofar as it relates to
titles, is based in part upon opinions of local counsel and of
counsel associated with us and in part upon examination of titles
of the Company to its principal properties by title examiners
under our direction, the direction of counsel associated with us,
including Alan J. Rabinowitz, Esquire, General Property Counsel
of the Company, or by local counsel of good standing and
experienced in the examination of titles and reviewed by us or
counsel associated with us. In the case of easements over lands
of others, the title of the grantors of the easements were not in
all cases examined to the same extent as in the case of fee
ownership and in some instances such easements depend upon long
user.
<PAGE>
We are members of the bar of The Commonwealth of
Massachusetts and we do not express any opinion as to matters
governed by any laws other than those of The Commonwealth of
Massachusetts and the Federal Law of the United States of
America.
Yours very truly,
ROBERT KING WULFF*
Corporation Counsel
KIRK L. RAMSAUER*
Assistant General Counsel
*To be signed by ROBERT KING WULFF AND/OR KIRK L. RAMSAUER
<PAGE>
Exhibit 2 to
Terms of Purchase
PROPOSED FORM OF OPINION
of
MILBANK, TWEED, HADLEY & MCCLOY
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
, 19
and the other several Purchasers
named in the Purchase Agreement
referred to below,
Re: MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bonds, Series , %, due
Dear Sirs:
We have acted as your counsel in connection with your
purchase from Massachusetts Electric Company, a Massachusetts
corporation (the Company), pursuant to a Purchase Agreement dated
, 19 (the Purchase Agreement) made with the Company,
of $ aggregate principal amount of First Mortgage Bonds,
Series , %, due (the Bonds) of the Company, issued under
and pursuant to the First Mortgage Indenture and Deed of Trust
dated as of July 1, 1949, as supplemented and modified by
supplemental indentures (collectively, the Mortgage), between the
Company and State Street Bank and Trust Company, successor to The
Second National Bank of Boston, as Trustee (the Trustee). As
such counsel we have reviewed originals, or copies certified to
our satisfaction, of all such corporate records of the Company,
indentures, agreements and other instruments, certificates of
public officials and of officers and representatives of the
Company and of the Trustee, and other documents, as we have
deemed necessary to require as a basis for the opinions
hereinafter expressed. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity with the original
documents of all documents submitted to us as copies, and the
authenticity of the originals of such latter documents. As to
various questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied
upon certifications by officers of the Company and other
appropriate persons and statements contained in the Registration
Statement hereinafter mentioned.
<PAGE>
In addition, we attended the closing held today at the
principal office of
, Boston, Massachusetts, in the course of
which the Company caused to be delivered to you $
aggregate principal amount of Bonds against payment therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion
that:
1. The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
2. The registration statement with respect to the Bonds
filed with the Securities and Exchange Commission (the
Commission) pursuant to the Securities Act of 1933, as amended
(the Act), as amended by all amendments thereto (the Registration
Statement), has become effective and, to the best of our
knowledge, remains in effect on the date hereof, and the
prospectus with respect to the Bonds dated , 19 ,
as supplemented by the prospectus supplement dated ,
19 , including all documents incorporated by reference therein
pursuant to the requirements of Form S-3 under the Act (the
Prospectus), is lawful for use for the purposes specified in the
Act in connection with the offer for sale and the sale of the
Bonds in the manner specified therein, subject to compliance with
the provisions of securities or "blue sky" laws of certain
jurisdictions in connection with the offer and sale of the Bonds
in such jurisdictions.
The Registration Statement and the Prospectus (except the
financial statements and other financial data included therein,
as to which we express no opinion) comply as to form in all
material respects with the requirements of the Act and with the
applicable published rules and regulations of the Commission
under the Act.
As to the financial statements included in the Prospectus, we
have made no examination of the Company's books of account and we
therefore express no opinion. As to the statements under
"Description of the New Bonds" (except the financial data
included thereunder as to which we express no opinion), subject
to the concluding paragraph of this opinion, we are of the
opinion that the statements are accurate and do not omit any
material fact required to be stated therein or necessary to make
such statements not misleading. As to other matters, we have not
undertaken to determine independently the accuracy or
completeness of the statements contained in the Registration
Statement or in the Prospectus. We have, however, participated
<PAGE>
in conferences with representatives of the Company and of New
England Power Service Company in connection with the preparation
of the Registration Statement and the Prospectus and we have
reviewed all documents incorporated by reference in the
Prospectus pursuant to the requirements of Form S-3 under the Act
and such of the corporate records of the Company as we deemed
advisable. None of the foregoing disclosed to us any information
which gave us reason to believe that the Registration Statement
or the Prospectus (except the financial statements and other
financial data included therein, as to which we express no
opinion) contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
3. The Company is exempt under Rule 52 of the Public Utility
Holding Company Act of l935 from the requirement for an order of
the Commission under said Act with respect to the issue and sale
of the Bonds.
4. The Massachusetts Department of Public Utilities has
issued an appropriate order with respect to the issue and sale of
the Bonds. Said order, to the best of our knowledge, remains in
effect on the date hereof.
5. No other order, approval or consent of any regulatory
body is legally required under federal law for the issue and sale
of the Bonds pursuant to the Purchase Agreement or the carrying
out of the provisions of the Purchase Agreement.
6. The Mortgage has been duly authorized, executed and
delivered by the Company, and having, in the opinion of Robert
King Wulff, Esq., Corporation Counsel of the Company, and/or Kirk
L. Ramsauer, Esq., Assistant General Counsel of the Company,
referred to below, upon which we rely, been duly filed and
recorded, constitutes a valid mortgage legally effective to
create a lien (as to the ranking of which reference is made to
said opinion) as security for the Bonds upon the interest of the
Company in the property now owned by the Company which is
described in the Mortgage as subject to the lien thereof; and the
Mortgage is a valid, binding and enforceable instrument, subject,
as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights generally. The
enforceability of the Mortgage is further subject to the effect
of general principles of equity (regardless of whether considered
in a proceeding in equity or at law), including without
limitation (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and
(ii) concepts of materiality, reasonableness, good faith and fair
<PAGE>
dealing, and subject also to the possible inefficacy of certain
provisions of the Mortgage, whereby the Company undertakes, upon
the happening of an event of default, to create a lien upon
certain property theretofore expressly excluded from the
Mortgage.
The Mortgage has been duly qualified under the Trust
Indenture Act of 1939, as amended.
7. The Bonds purchased by you conform to the terms of the
Purchase Agreement and to the statements with respect thereto
contained in the Registration Statement and the Prospectus and
have been duly authorized and (assuming due execution thereof by
the Company and certification by the Trustee) issued under the
Mortgage and are valid and binding obligations of the Company.
The foregoing opinions are subject to the following:
We have made no examination of the Company's title to the
properties purported to be owned by it or of the ranking of the
liens created by the Mortgage or the franchises or licenses under
which the Company operates. We express no opinion on such
matters (including the adequacy of the real property descriptions
in the Mortgage) and, to the extent that the opinions herein
expressed involve such matters, we have relied upon said opinion
of Counsel for the Company. With respect to the filing and
recording of the Mortgage, we have also relied upon said opinion
of Counsel for the Company.
In rendering the opinions hereinabove expressed, we have
relied upon said opinion of Counsel to the Company as to all
matters governed by the law of The Commonwealth of Massachusetts,
and as to such matters, the opinions hereinabove expressed are
subject to all qualifications, limitations, assumptions and
reliances, and other considerations, therein set forth.
We are members of the bar of the State of New York and do not
express any opinion herein concerning any laws other than the law
of the State of New York, the federal law of the United States
and, to the extent hereinabove stated in reliance on said
opinions of Counsel to the Company, the law of The Commonwealth
of Massachusetts.
Very truly yours,
MILBANK, TWEED, HADLEY & MCCLOY
<PAGE>
Exhibit 1-B
to Form S-3
UNDERWRITING AGREEMENT
FOR PURCHASE OF $__________
FIRST MORTGAGE BONDS, SERIES ___,
_____%, DUE __________
OF
MASSACHUSETTS ELECTRIC COMPANY
Date:
Massachusetts Electric Company
25 Research Drive
Westborough, MA 01582
Ladies and Gentlemen:
We (the Underwriters) understand that Massachusetts Electric
Company, (the Company), proposes to issue and sell $__________
aggregate principal amount of First Mortgage Bonds, Series ___,
_____%, due __________, (with Original Issue Date as defined in
the Terms of Purchase) (the Bonds).
Subject to the terms and conditions set forth in the Terms of
Purchase annexed hereto, the Company hereby agrees to sell all of
the Bonds, and each of the Underwriters agrees, severally and not
jointly, to purchase the respective principal amount of the Bonds
set forth opposite its name below, in each case at a purchase
price of _____% of the principal amount of such Bonds.
Principal
Name Amount of Bonds
____ _______________
____________________
Total $
<PAGE>
The Underwriters will pay for such Bonds upon delivery
thereof in accordance with the Terms of Purchase.
The Bonds shall have the terms set forth in the Prospectus
dated _______________, and the Prospectus Supplement dated
_______________, including the following:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
Other:
All provisions contained in the document entitled "TERMS OF
PURCHASE RELATING TO FIRST MORTGAGE BONDS, SERIES *, **%, DUE *
(ORIGINAL ISSUE DATE ***) OF MASSACHUSETTS ELECTRIC COMPANY", a
copy of which is attached hereto, are herein incorporated by
reference in their 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.
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and
returning the signed copy to us at the address below.
Very truly yours,
[Name of Underwriter or Representative]
By______________________________________
Name:
Title:
Address:
Accepted:
MASSACHUSETTS ELECTRIC COMPANY
By_________________________________
Name:
Title:
<PAGE>
TERMS OF PURCHASE
RELATING TO
FIRST MORTGAGE BONDS, SERIES *, **%, DUE *
(ORIGINAL ISSUE DATE ***)
OF
MASSACHUSETTS ELECTRIC COMPANY
TERMS OF PURCHASE between Massachusetts Electric Company (the
Company), a Massachusetts corporation, and the several
Underwriters named in a confirmation letter (the Confirmation) to
which these Terms of Purchase are attached and hereinafter
collectively called the Underwriting Agreement. (The words
"herein" and "hereunder", unless specifically limited, mean "in
the Underwriting Agreement" and "under the Underwriting
Agreement", respectively.)
1. UNDERWRITERS AND REPRESENTATIVE. The term Underwriters
as used herein shall mean the several persons, firms, or
corporations named in the Confirmation (including the
Representative hereinafter mentioned); and the term
Representative as used herein shall be deemed to mean the
representative or representatives designated as Representative
by, or in the manner authorized by, the Underwriters and who, by
signing the Confirmation, represent that it or they have been
authorized by the Underwriters to enter into this Underwriting
Agreement on their behalf and to act for them in the manner
herein provided. If there shall be only one person, firm, or
corporation named in said Confirmation, the term Underwriters and
the term Representative as used herein shall mean such person,
firm, or corporation.
2. DESCRIPTION OF THE BONDS. The Company proposes to issue
and sell $* principal amount of its First Mortgage Bonds,
Series *, **%, due * (Original Issue Date ***) (the Bonds), to be
issued under an indenture supplemental to the First Mortgage
Indenture and Deed of Trust dated as of July 1, 1949, (as
heretofore and hereafter supplemented, the Indenture), from the
Company to State Street Bank and Trust Company (the Trustee),
______________________
* The series designation, aggregate principal amount, and the
year in which the Bonds mature are as specified in the
Confirmation.
** The percentage is the interest rate specified in the
Confirmation.
*** Original Issue Date shall be the Closing Date.
<PAGE>
formerly Second Bank-State Street Trust Company, successor to The
Second National Bank of Boston. The terms and provisions of the
Bonds and of the Indenture are summarized in the registration
statement and in the prospectus below mentioned.
3. PUBLIC OFFERING. The Company is advised by the
Representative that the Underwriters propose to make a public
offering of their respective portions of the Bonds as soon after
this Agreement is entered into as in the Representative's
judgment is advisable. The terms of the public offering of the
Bonds are set forth in the prospectus below mentioned.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter as follows:
(a) With respect to the proposed issue and sale of the
Bonds, the Company has filed a registration statement,
including as a part thereof a prospectus, under the
Securities Act of 1933, as amended (the Securities Act), with
the Securities and Exchange Commission (the Commission).
Said registration statement has become effective, and the
prospectus in the registration statement as now effective
(the Registration Statement) meets the requirements of
section 10(a) of the Securities Act. The Company will file a
supplement to the prospectus (the Supplement) with respect to
the Bonds to reflect the results of the pricing set forth in
the Confirmation pursuant to the rules and regulations under
the Securities Act, after giving the Representative an
opportunity to examine and make objections of substance to
the Supplement. Such examination shall not limit or affect
the rights of any Underwriter in respect of any
representation, warranty, or covenant of indemnity by the
Company herein contained. Before filing any other supplement
or amendment to the Registration Statement or the Supplement
with respect to the Bonds, the Company will afford the
Representative an opportunity to examine it and any documents
incorporated therein and to make objections of substance
thereto. The Representative shall have the right to
terminate this Underwriting Agreement, without liability on
the part of any Underwriter, if the Company shall file the
Supplement or any other supplement or amendment to the
prospectus to which the Representative shall reasonably so
object in writing.
(b) Said prospectus and the Registration Statement have
been, and the Supplement and each other supplement or
amendment thereto will be, carefully prepared in conformity
with the requirements of the Securities Act and the rules,
regulations, and releases of the Commission thereunder; the
<PAGE>
Registration Statement contains all statements which are
required to be incorporated or stated therein in accordance
with the Securities Act and the rules, regulations, and
releases thereunder, and will in all material respects
conform to the requirements thereof; said prospectus, as
supplemented when the Supplement is filed (the Prospectus),
will contain or incorporate therein all statements made in
the Registration Statement which the Prospectus is required
to contain and will in all material respects conform to the
requirements of the Securities Act and the rules,
regulations, and releases thereunder; wherever the terms
prospectus, Prospectus, registration statement, or
Registration Statement are used herein, they shall be deemed
to include all documents incorporated by reference therein
pursuant to the requirements of Form S-3 under the Securities
Act, and such documents incorporated or to be incorporated by
reference therein have been or will be prepared and filed
with the Commission in a timely manner and in accordance with
the provisions of the Securities Exchange Act of 1934 (the
Exchange Act) and applicable rules, regulations, and releases
thereunder; neither the Registration Statement nor the
Prospectus will include any untrue statement of a material
fact or omit to state a material fact which (in the case of
the Registration Statement) is required to be incorporated or
stated therein or is necessary to make the statements therein
or incorporated therein not misleading or which (in the case
of the Prospectus) is necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the
foregoing representations and warranties shall not apply to
statements or omissions made in reliance on written
information furnished to the Company by the Underwriter, or
by and through the Representative on behalf of any
Underwriter, or to statements or omissions in the Statement
of Eligibility and Qualification of the Trustee under the
Indenture.
(c) The financial statements of the Company included or
incorporated by reference in the Registration Statement will
be correct and complete and will truly present the financial
position of the Company as at the dates stated therein and
the results of the operations of the Company for the periods
stated therein. The Company had, on the date of the latest
financial statements included or incorporated by reference in
the Registration Statement, no material liabilities or
obligations, fixed or contingent, other than those disclosed
in the Registration Statement or such financial statements,
and since that date the Company has not incurred any material
liabilities or obligations still outstanding, fixed or
<PAGE>
contingent, other than (i) in the ordinary course of
business, (ii) as a result of transactions described in the
prospectus included in the Registration Statement, or (iii)
short-term borrowings which result in short-term note
indebtedness of not exceeding, in the aggregate at any one
time outstanding, the limitations then authorized for the
Company by the Commission under the Public Utility Holding
Company Act of 1935 (the 1935 Act). Since the date of the
latest financial statements included or incorporated by
reference in the Registration Statement, there has not been
any material adverse change in the financial condition of the
Company not disclosed in the prospectus included in the
Registration Statement. Except as described in said
prospectus, there are no proceedings at law or in equity or
before any federal or state commission or other public
authority the result of which might have a material adverse
effect upon the financial condition of the Company.
(d) Coopers & Lybrand L. L. P., who have certified
certain of the financial statements filed with the
Commission, are independent certified public accountants as
required by the Securities Act and the rules, regulations,
and releases thereunder.
(e) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this Underwriting Agreement will not violate any of the
terms, conditions, or provisions of, or constitute a default
under, any franchise, indenture, or other contract or
agreement to which the Company is now a party or by which the
Company or its property may be bound or affected, or the
Company's charter, by-laws, or preferred stock provisions, or
any order of any court or administrative agency by which the
Company is bound.
(f) The issue and sale of the Bonds are solely for the
purpose of financing the business of the Company.
5. INFORMATION FROM AND WARRANTIES OF THE UNDERWRITERS.
Each Underwriter, in addition to other information furnished to
the Company for use in the Prospectus, is contemporaneously
furnishing and will continue to furnish to the Company through
the Representative for use in the Prospectus the information to
be stated therein with regard to the public offering to be made
by the Underwriters, any further information regarding the
Underwriters and such public offering which may be required under
the 1935 Act, and all other information required by law in
respect of the purchase and sale of the Bonds. Each Underwriter
warrants and represents to the Company, each of the officers and
<PAGE>
directors of the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act,
and each other Underwriter that all information furnished at any
time in writing to the Company by such Underwriter, or by or
through the Representative on behalf of such Underwriter, for use
in the Prospectus, will not contain an untrue statement of a
material fact and will not omit to state any material fact which
is necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
6. PURCHASE AND SALE OF BONDS. The Company will sell to
each Underwriter and each Underwriter will severally purchase
from the Company, at the price specified in the Confirmation, at
the time and place, in the manner, and upon the terms and
conditions hereinafter set forth, the principal amount of Bonds
set forth opposite its name in the Confirmation, which amount may
be increased in accordance with paragraph (a) of Section 13
hereof.
All obligations of the Underwriters hereunder are several,
and not joint or joint and several, and nothing herein shall
constitute the Underwriters copartners of each other.
7. TIME AND PLACE OF CLOSING; DELIVERY AND PAYMENT. The
term Closing Date wherever used herein shall mean the eighth day
(or if such day is not a full business day, the next full
business day thereafter) following the date hereof, or such other
date as shall be agreed in writing by the Company and the
Representative (subject to postponement in accordance with the
provisions of Section 13 hereof).
Payment for the Bonds, as provided in Section 6 hereof, shall
be made at the principal office of State Street Bank and Trust
Company, Boston, Massachusetts, at 10 a.m., Boston time, on the
Closing Date. Payment shall be made to the Company or its order
in immediately available current-day funds by certified check or
checks drawn on, or by official check or checks of, State Street
Bank and Trust Company, or in Boston Federal Reserve Bank Funds.
Payment for the Bonds may also be made by a FedWire electronic
funds transfer to Massachusetts Electric Company's General Funds
Account, Number 514-22952, at Bank of Boston, Boston,
Massachusetts. Such payment shall be made upon delivery of the
Bonds to the Representative for the respective accounts of the
Underwriters, such delivery to be made at the offices of State
Street Bank and Trust Company, N.A., 61 Broadway, New York, New
York 10006. The Bonds will be delivered, at the option of the
Company, either in temporary or definitive form. If delivered in
temporary form, each will be in the denomination of $1,000, and
an exchange of temporary Bonds for fully-registered Bonds in
<PAGE>
definitive form will be made as soon as practicable and without
charge to the holders thereof. If delivered in definitive form,
the Bonds will be in fully-registered form and will be registered
in such name or names and in such denominations of $1,000 or
integral multiples thereof as the Representative may request not
later than 10 a.m., Boston time, on the third full business day
prior to the Closing Date. If no such direction is received, the
Bonds will be registered in the names of the respective
Underwriters in denominations selected by the Company.
The Company will make such Bonds available to the
Representative for examination at the place of delivery, not
later than 2 p.m., Boston time, on the first full business day
prior to the Closing Date.
The Representative, individually and not as the
Representative, may (but shall not be obligated to) make payment
to the Company for the Bonds to be purchased by any Underwriter
whose funds shall not have been received by the Representative as
of the Closing Date, for the account of such Underwriter. Any
such payment by the Representative shall not relieve such
Underwriter from any of its obligations hereunder, but the
Representative shall succeed to the right of the Company to
receive the amount of such payment from such Underwriter.
8. COVENANTS OF THE COMPANY. The Company agrees that:
(a) The Company will promptly deliver to the
Representative a certified copy of the registration statement
with respect to the Bonds, as originally filed, and of all
amendments thereto heretofore or hereafter made, including a
copy of each consent and certificate included or incorporated
by reference therein or filed as an exhibit thereto (but
excluding any other exhibit thereto unless specifically
requested by the Representative). The Company will deliver
to the Representative in New York or Boston, as requested, as
soon as practicable after the filing of the Supplement, and
thereafter from time to time during the nine-month period
commencing on the date hereof, as many unsigned copies of the
Prospectus (as supplemented or amended, if the Company shall
have made any supplements or amendments thereto) and any
documents incorporated by reference therein as the
Representative may reasonably request for purposes
contemplated by the Securities Act.
(b) The Company will advise the Representative
immediately by telegraph or other means of communication and
confirm the advice in writing:
<PAGE>
(i) when the Supplement has been filed;
(ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement, or of the initiation of any
proceedings for that purpose, and agrees, if any such
stop order should be entered by the Commission, to make
every reasonable effort to obtain the lifting or removal
thereof as soon as possible;
(iii) of the issuance by the Massachusetts
Department of Public Utilities (MDPU) of any order
altering, suspending, supplementing, or otherwise
affecting its order permitting the issuance and sale of
the Bonds;
(iv) of any action by the Commission which has
the effect of eliminating the exemption from the
requirements of the Public Utility Holding Company Act
of 1935 provided under Rule 52 promulgated thereunder;
and
(v) of the commencement of any litigation in
connection with the Bonds against the Company or any of
its directors or any signer of the Registration
Statement.
(c) During the six-month period commencing on the
effective date of this Underwriting Agreement, the Company
will use its best efforts, when and as requested by the
Representative, to furnish information and otherwise
cooperate in qualifying the Bonds for the purposes of any
public offering by the Underwriters under securities or
"blue-sky" laws of such states as the Representative may
designate; provided that the Company shall not be obligated
to qualify as a foreign corporation in, or consent to service
of process under the laws of, any state, or to meet other
requirements deemed by it to be unduly burdensome. The
Company will pay or reimburse the Representative in an
aggregate amount not exceeding $3,000 for the filing fees and
expenses in connection with any qualification referred to in
this paragraph.
(d) The Company will pay all expenses in connection with
(i) the preparation and filing by it of the Registration
Statement and the Prospectus and any supplement or amendment
thereto, (ii) the issue and delivery of the Bonds, and (iii)
the printing of the Prospectus and any supplement or
<PAGE>
amendment thereto and the delivery of reasonable quantities
of copies thereof to Underwriters. The Company will pay all
federal and state taxes (except transfer taxes) on the issue
of the Bonds. The Company shall not, however, be required to
pay any amount for the expenses of the Representative or of
any Underwriters, except as provided in paragraphs (c) and
(e) of this Section. The fees and disbursements of Milbank,
Tweed, Hadley & McCloy (the Underwriters' Counsel) shall be
paid by the Underwriters, except as provided in paragraph (e)
of this Section; and in the event that the fees of
Underwriters' Counsel shall be reduced from the amount stated
by such counsel to the Representative, an amount equal to
such reduction shall be paid to the Company by or on behalf
of the Underwriters.
(e) If the Underwriting Agreement shall be terminated
pursuant to any of the provisions hereof, the Company will
pay the reasonable fees and disbursements of Underwriters'
Counsel and the filing fees and expenses referred to in
paragraph (c) of this Section. If the Underwriters shall not
take up and pay for the Bonds due to the failure of the
Company to comply with any of the conditions specified in
Section 9 hereof, the Company will reimburse the Underwriters
in an aggregate amount not exceeding $2,000 for their
reasonable out-of-pocket expenses incurred in connection with
the financing contemplated by this Underwriting Agreement.
The Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated
profits.
(f) During the nine-month period commencing on the date
hereof, if any event known to the Company or of which the
Company shall be advised by the Representative shall occur
which should be set forth in a supplement to or an amendment
of the Prospectus or in any document to be incorporated by
reference therein in order to make the Prospectus not
misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, the Company will so
advise the Representative and, upon request from the
Representative, will forthwith at the Company's expense, or
at the expense of the Underwriters if the only event
occasioning the supplement or amendment is a change in the
purchasing or distribution arrangements, prepare and furnish
to the Representative (in form satisfactory to Underwriters'
Counsel) a reasonable number of copies of a supplemented or
amended prospectus or the document incorporated therein or,
at the option of the Company, a reasonable number of
appropriate supplements to be attached to the Prospectus, so
that the Prospectus as supplemented or amended will not
<PAGE>
contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading. In case any Underwriter is
required to deliver a prospectus descriptive of the Bonds
more than nine months after the date hereof, the Company,
upon the request of the Representative, will furnish to the
Representative, at the expense of such Underwriter, a
reasonable quantity of copies of a supplemented or amended
prospectus meeting the requirements of section 10(a) of the
Securities Act.
(g) The Company will make generally available to its
security holders, as soon as practicable, an earnings
statement (which need not be certified) covering a
twelve-month period commencing subsequent to the date hereof,
which earnings statement shall satisfy the requirements of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the several Underwriters to purchase and pay for the Bonds
shall be subject to the performance by the Company of its
obligations hereunder and the following conditions:
(a) Prior to 7 P.M., Boston time, on the date hereof,
the Indenture shall have been qualified under the Trust
Indenture Act of 1939, there shall have been issued an order
of the MDPU, to the extent that it has jurisdiction,
permitting the issuance and sale of the Bonds, and at such
time and on the Closing Date such order shall not contain any
provision which, in the opinion of the Representative or the
Company, is unduly burdensome to the Company, it being
understood that such order as is now in effect does not
contain any such unduly burdensome provision.
(b) All legal proceedings to be taken and all legal
opinions to be rendered in connection with the issue and sale
of the Bonds shall be satisfactory to Underwriters' Counsel.
Prior to or concurrently with the delivery of the Bonds, the
Representative shall have received the following opinions and
letter, with printed or duplicated copies thereof for each of
the Underwriters, with such changes therein as may be agreed
upon by the Company and the Representative with the approval
of Underwriters' Counsel:
(i) Opinion of Robert King Wulff, Esq. and/or Kirk
L. Ramsauer, Esq., counsel for the Company,
substantially in the form attached hereto as Exhibit 1;
<PAGE>
(ii) Opinion of Underwriters' Counsel substantially
in the form attached hereto as Exhibit 2; and
(iii) Letter of Coopers & Lybrand L. L. P., dated
the Closing Date and addressed to the Company and to the
Representative, confirming that they are independent
certified public accountants with respect to the Company
within the meaning of the Securities Act and the
applicable published rules and regulations thereunder,
and stating in effect:
(1) that in their opinion the financial
statements and financial statement schedules
(included or incorporated by reference in the
Registration Statement) examined by them as stated
in their report (incorporated by reference in the
Registration Statement) comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and of the
published rules and regulations thereunder;
(2) that on the basis of a reading of the
minutes of the meetings of the stockholders and the
Board of Directors of the Company held during any
period subsequent to 199__, and not covered by the
Financial Statements referred to in paragraph (1)
of this clause, as set forth in the minute books
through a specified date not more than five
business days prior to the date of their letter, a
reading of the unaudited financial statements of
the Company included or incorporated by reference
in the Registration Statement, and inquiries of
officials of the Company who have responsibility
for financial and accounting matters (which
procedures do not constitute an examination made in
accordance with generally accepted auditing
standards), they agree that, if any unaudited
amounts of total operating revenue and net income
are set forth or incorporated by reference in the
Registration Statement, including amounts set forth
under "Selected Financial Information", they agree
with the corresponding amounts set forth in the
unaudited financial statements for that period.
Those officials of the Company who have
responsibility for financial and accounting matters
stated:
(i) that the unaudited financial statements
included or incorporated by reference in the
Registration Statement are in conformity as to
<PAGE>
form in all material respects with the
applicable accounting requirements of the
Exchange Act and the published rules and
regulations thereunder, and that said
financial statements are in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
incorporated by reference in the Registration
Statement;
(ii) that, during the period from the date of
the latest financial statements included or
incorporated by reference in the Registration
Statement through a specified date not more
than five business days prior to the date of
their letter, there was no change in the
capital stock and no increase in long-term
debt of the Company;
except in all instances as set forth or incorporated by
reference in or contemplated by the Prospectus; and
(3) that they have compared the dollar amounts
contained in Exhibit 12 (Computation of Ratio of
Earnings to Fixed Charges) to the Registration
Statement with such dollar amounts derived from the
unaudited financial statements incorporated by
reference in the Registration Statement, general
accounting records of the Company or from schedules
prepared by the Company or derived directly from
such records or schedules by analysis or
computation, and have found such dollar amounts to
be in agreement, and have recalculated the ratios
contained in Exhibit 12 and have found the
calculation of such ratios to be mathematically
correct, except in each case as otherwise stated in
said letter.
(c) At the time of the delivery of the Bonds:
(i) no stop order suspending the effectiveness
of the Registration Statement shall have been
entered and be in effect, no proceeding for that
purpose shall be pending, and any request on the
part of the Commission for amendments or additional
information shall have been complied with to its
satisfaction;
<PAGE>
(ii) the order of the MDPU referred to in
paragraph (a) of this Section shall remain in force
and effect; and
(iii) the representations and warranties of
the Company herein shall be true and correct;
and the Representative shall have received a certificate
signed by an officer of the Company to such effect, to the
best of his knowledge, information, and belief.
If any provision of this Section is not fulfilled at or prior
to the delivery of the Bonds, this Underwriting Agreement may be
terminated by the Representative (with the consent of
Underwriters, including the Representative, who have agreed to
purchase in the aggregate 50% or more in principal amount of the
Bonds) upon delivering written notice thereof to the Company.
Any such termination shall be without liability of any party to
any other party, except as otherwise provided in paragraph (e) of
Section 8.
10. CONDITIONS OF THE COMPANY'S OBLIGATION. The obligation
of the Company to deliver the Bonds is subject to the following
conditions:
(a) The conditions set forth in paragraphs (a), (c)(i),
and (c)(ii) of Section 9 hereof.
(b) Concurrently with the delivery of the Bonds, the
Company shall receive the full purchase price for all of the
Bonds.
If any provision of this Section is not fulfilled at or prior
to the delivery of the Bonds, this Underwriting Agreement may be
terminated by the Company, by written notice delivered to the
Representative. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
paragraph (e) of Section 8.
11. TERMINATION. This Underwriting Agreement may be
terminated at any time prior to the Closing Date by the
Representative (with the consent of Underwriters including the
Representative who have agreed to purchase in the aggregate 50%
or more in principal amount of the Bonds), upon notice thereof to
the Company, if prior to such time (a) there shall have occurred
any general suspension of trading in securities on the New York
Stock Exchange or there shall have been established by the New
York Stock Exchange, the Commission, or any Federal or state
agency or by the decision of any court, any limitation on prices
<PAGE>
for such trading or any restrictions on the distribution of
securities, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities, or (c) there
shall have occurred 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 (c) in the judgement of the
Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Bonds on the
terms and in the manner contemplated by the Prospectus.
Any termination of this Underwriting Agreement pursuant to
this Section shall be without liability of any party to any other
party, except as otherwise provided in paragraph (e) of Section
8.
12. INDEMNIFICATION. (a) The term Preliminary Prospectus as
used in this Section 12 shall mean the prospectus included in the
registration statement on the date of its initial effectiveness
and such prospectus as and if amended or supplemented prior to
the date this Underwriting Agreement becomes effective and shall
also include all preliminary prospectuses. The terms
Registration Statement and Prospectus as used in this Section 12
shall mean said documents as defined, respectively, in Sections
4(a) and 4(b) hereof and shall also include each and every
amendment of and supplement to said documents, respectively,
furnished by the Company to the Underwriters or to the
Representative for distribution to the Underwriters. No
indemnity by the Company hereunder shall apply in respect of (i)
any Prospectus or Preliminary Prospectus used at a time not
authorized under the Securities Act or this Underwriting
Agreement, (ii) any Prospectus or Preliminary Prospectus used in
unamended or unsupplemented form after the same has been amended
or supplemented, provided the Company has supplied such amendment
or supplement to the Underwriters or to the Representative for
distribution to the Underwriters, or (iii) any Underwriter, or
any person controlling such Underwriter, on account of any loss,
claim, or liability arising by reason of any person acquiring any
of the Bonds, if a copy of the Prospectus has not been sent or
given by an Underwriter or a securities dealer to such person
with or prior to the written confirmation of the sale involved.
No use of any Preliminary Prospectus is authorized after the date
hereof.
(b) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act against
any loss, claim, or liability, joint or several (including the
reasonable cost of investigating or defending any such alleged
<PAGE>
loss, claim, or liability and reasonable counsel fees incurred in
connection therewith), arising by reason of any person acquiring
any of the Bonds, on the ground that the Registration Statement,
the Prospectus, or the Preliminary Prospectus includes or
included an untrue statement of a material fact or omits or
omitted to state a material fact which (in the case of the
Registration Statement or the registration statement as now
effective) is or was required to be stated therein or is or was
necessary to make the statements therein not misleading or which
(in the case of the Prospectus or the Preliminary Prospectus) is
or was necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon
written information furnished to the Company by any Underwriter,
or by and through the Representative on behalf of any
Underwriter, for use therein, or unless such statement or
omission shall occur in the Statement of Eligibility and
Qualification under the Trust Indenture Act of 1939 of the
Trustee under the Indenture. For purposes of the foregoing, no
Underwriter shall be deemed to be required to send or give a copy
of documents incorporated by reference in the Prospectus to any
person with or prior to the written confirmation of the sale
involved in order to be entitled to the benefits of the
indemnification provided for herein. Upon commencement of any
such suit, if any Underwriter or any such controlling person
wishes to make a claim in respect thereof against the Company
under its agreement herein contained, such Underwriter or such
controlling person, as the case may be, shall, within thirty days
after the summons or other first legal process giving information
of the nature of the claim shall have been served upon such
Underwriter or upon such controlling person (or after he shall
have received notice of such service on any designated agent),
give notice in writing of such suit to the Company; but failure
so to notify the Company shall not relieve it from any liability
which it may have to the person against whom such suit is
brought, otherwise than on account of its indemnity agreement
contained in this paragraph. The Company will be entitled to
participate at its own expense in the defense or, if it so
elects, to assume the defense of any such suit, and, if the
Company elects to assume the defense, the defendant or defendants
therein will be entitled to participate in the defense but shall
bear the fees and expenses of any additional counsel retained by
them, unless the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
<PAGE>
(c) Each Underwriter will indemnify and hold harmless the
Company and each of its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15
of the Securities Act, to the same extent as the Company in the
foregoing paragraph (b) agrees to indemnify and hold harmless
each Underwriter, but only with respect to any written
information furnished to the Company by such Underwriter, or by
and through the Representative on behalf of such Underwriter, for
use in the Prospectus. If any action shall be brought hereunder
against the Company or any such officer, director, or controlling
person, such Underwriter shall have the rights and duties given
to the Company by paragraph (b), and the Company or such officer,
director, or controlling person shall have the rights and duties
given to such Underwriter by said paragraph.
(d) If the indemnification provided for in this Section 12 is
unavailable to an indemnified party, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, or liability in such
proportion as is appropriate to reflect not only the relative
benefits received by the Company on the one hand and the
Underwriter on the other but also the relative fault of the
Company on the one hand and of the Underwriter on the other in
connection with the statement or omission that resulted in such
loss, claim, or liability, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and by the Underwriter on the other in
connection with the offering shall be deemed to be in the same
proportion as the total net proceeds from the offering, before
deducting expenses, received by the Company bear to the total
underwriting discounts or commissions, if any, received by all of
the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. If there are no such underwriting
discounts or commissions so set forth, the relative benefits
received by the Underwriter shall be the difference between the
price received by the Underwriter upon sale of the Bonds and the
price paid for the Bonds pursuant to this Underwriting Agreement.
The relative fault of the Company on the one hand and of the
Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or allegedly untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or by the Underwriter and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
<PAGE>
(e) The indemnities contained in this Section and all the
representations and warranties contained in this Underwriting
Agreement shall survive the delivery of the Bonds.
13. SUBSTITUTION OF UNDERWRITERS. (a) If one or more
Underwriters fail or refuse to take up and pay for the entire
principal amount of Bonds that it or they agreed to purchase
under this Underwriting Agreement and the aggregate principal
amount of Bonds which all such defaulting Underwriters shall have
failed to purchase does not exceed ten percent of the aggregate
principal amount of the Bonds, the nondefaulting Underwriters
shall have the right and are obligated severally to take up and
pay for (in addition to the principal amounts of Bonds set forth
opposite their respective names in the Confirmation) the total
principal amount of Bonds agreed to be purchased by all such
defaulting Underwriters in the respective proportions which the
principal amounts set forth opposite the names of the
nondefaulting Underwriters in the Confirmation bear to the
aggregate principal amount so set forth opposite the names of all
such nondefaulting Underwriters; provided, however, that no Bonds
of denominations smaller than $1,000 are to be delivered and, if
Bonds of smaller denominations would result from the aforesaid
proportions, such smaller denominations shall be combined and the
resulting $1,000 Bond or Bonds shall be delivered to, and shall
be purchased by, such Underwriter or Underwriters as the
Representative shall designate. In such event, the
Representative, for the accounts of the several nondefaulting
Underwriters, may take up and pay for all or any part of such
principal amount of Bonds to be purchased by each remaining
Underwriter under this paragraph and, in order to effect
necessary changes in the Registration Statement, Prospectus, and
other documents and arrangements, may postpone the Closing Date
not more than four full business days.
(b) If one or more of the Underwriters shall fail or refuse
to take up and pay for the entire principal amount of Bonds which
he or they have agreed to purchase under this Underwriting
Agreement and the aggregate principal amount of Bonds which all
such defaulting Underwriters shall have failed to purchase
exceeds ten percent of the aggregate principal amount of the
Bonds, the nondefaulting Underwriters, or any one or more of
them, at 10 A.M., Boston time, on the Closing Date or within 24
hours thereafter, shall have the right to take up and pay for (in
such proportion as may be agreed upon among them so long as no
Bonds of denominations smaller than $1,000 are to be delivered),
or to substitute another Underwriter or Underwriters to take up
and pay for, the total principal amount of Bonds agreed to be
purchased by all such defaulting Underwriters. In the event that
the nondefaulting Underwriters shall not take up and pay for all
<PAGE>
the Bonds which the defaulting Underwriters shall have agreed but
failed to purchase, or substitute another Underwriter or
Underwriters, as aforesaid, the Company shall have the privilege
of finding and substituting within a further 24-hour period
another Underwriter or Underwriters to purchase the principal
amount of Bonds which the defaulting Underwriters agreed but
failed to purchase. (The term Underwriter as used in this
Underwriting Agreement shall refer to and include each
Underwriter substituted under this paragraph with the same effect
as if said substituted Underwriter had originally been named in
the Confirmation.) In any such case, either the Company or the
Representative shall have the right to postpone the Closing Date
not more than seven full business days, in order that necessary
changes in the Registration Statement, the Prospectus, and any
other documents and arrangements may be effected. If said
nondefaulting Underwriters shall not take up and pay for such
principal amount of Bonds, or substitute another Underwriter or
Underwriters therefor, and the Company shall not substitute
another Underwriter or Underwriters therefor, all as aforesaid,
then this Underwriting Agreement shall terminate without any
liability on the part of the Company (except as otherwise
provided in paragraph (e) of Section 8) or of any nondefaulting
Underwriter. Nothing contained in this paragraph shall obligate
any Underwriter to purchase or find underwriters for any
principal amount of Bonds in excess of the amount agreed to be
purchased by such Underwriter under the terms of Section 6, nor
shall anything in this paragraph relieve any defaulting
Underwriter of any liability to the Company which it might
otherwise have.
14. PERSONS ENTITLED TO BENEFIT OF UNDERWRITING AGREEMENT.
This Underwriting Agreement shall inure to the benefit of the
Company and the Underwriters (and, as to the provisions of
Section 12, the other persons indemnified thereunder) and their
respective successors and assigns. Nothing in this Underwriting
Agreement is intended or shall be construed to give to any other
person, firm, or corporation any legal or equitable right,
remedy, or claim under or in respect of this Underwriting
Agreement or any provision herein contained. The term
"successors and assigns" as used in this Underwriting Agreement
shall not include any purchaser, as such purchaser, of any of the
Bonds from any of the Underwriters.
15. NOTICES. Any request, consent, notice, or other
communication on behalf of the Underwriters shall be given in
writing by the Representative addressed to the Treasurer of the
Company at 25 Research Drive, Westborough, Massachusetts 01582,
and any notice or other communication by the Company to the
Underwriters shall be given in writing to the Representative, at
its address stated in the Confirmation.
<PAGE>
16. EFFECTIVENESS OF UNDERWRITING AGREEMENT. The date on
which this Underwriting Agreement is effective is the date stated
in the Confirmation.
17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of
Massachusetts.
18. COUNTERPARTS. This Agreement may be executed by one or
more of the parties hereto in any number of counterparts, each of
which shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
<PAGE>
Exhibit 1 to
Terms of Purchase
PROPOSED FORM OF OPINION
OF
COUNSEL FOR THE COMPANY
_____________, 19__
As Representatives of the Several Underwriters
Re: MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bonds, Series ___, _____%, due __________
(Original Issue Date: _______________)
Dear Representatives:
We have acted as counsel for Massachusetts Electric Company
(the Company) in connection with the issue by it of $__________
principal amount of First Mortgage Bonds, Series ___, _____%, due
__________ (Original Issue Date: __________) (the Bonds), and are
therefore familiar with the proceedings taken in connection
therewith. The Company is a subsidiary of New England Electric
System.
This opinion is furnished to you pursuant to Section 9(b)(i)
of the Underwriting Agreement which became effective on
__________, 19__, between you as underwriter of the Bonds and the
Company and is being delivered on the Closing Date referred to
therein, concurrently with said issue of Bonds.
The Bonds are being issued under a First Mortgage Indenture
and Deed of Trust dated as of July 1, 1949 (the Original
Indenture), as supplemented and amended by an __________
Supplemental Indenture dated as of __________, 19__, and previous
supplemental indentures (the Original Indenture and all
supplemental indentures being collectively referred to herein as
the Indenture).
We are of opinion that:
1. The Company is a corporation validly organized and duly
existing under the laws of The Commonwealth of Massachusetts, has
the corporate power to transact the electric business in which it
is now engaged, and has franchises adequate for carrying on such
business.
2. The Company had full power and authority to accept your
offer for the purchase of the Bonds, and the Underwriting
Agreement has been duly authorized, executed, and delivered by
the Company.
3. The Company had corporate power proper and adequate for
making the Indenture which was duly executed and delivered in
<PAGE>
accordance with proper authority from the stockholders and
directors of the Company. The ___________ Supplemental
Indenture, including Schedule __ thereto, contains a correct and
adequate description of the real estate, rights or interests in
real estate, and fixed property of the Company acquired up to
__________, 19__, and not included in the Original Indenture or
the previous supplemental indentures, and now owned of record,
except for the properties expressly excluded from the Indenture.
4. All filings and recordings of or in respect of the
Indenture have been duly made where such filings and recordings
are necessary for the preservation or protection of the lien
thereof, and the Indenture is a valid, binding, and enforceable
instrument subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally and to
the effects of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law).
5. The Company has corporate power proper and adequate for
the execution and issuance of the Bonds under the Indenture in an
aggregate principal amount not exceeding $__________ and in
accordance with due authorization from the stockholders and
directors of the Company and, based in part upon certificates by
an officer of the Company and by an officer of the Trustee under
the Indenture as to execution, certification, and delivery, said
Bonds have been duly issued and are valid and binding obligations
of the Company and entitled to the benefits and security of the
Indenture.
6. Said Bonds, together with all other now outstanding First
Mortgage Bonds of the Company, are secured by a direct first
mortgage lien on substantially all the properties and franchises
now owned by the Company, subject to the property specifically
excepted in the granting clauses of, and to the liens permitted
by, the Indenture, including the prior lien of the Trustee for
compensation, expenses, and liabilities; and, except as
aforesaid, there is no existing indebtedness secured by lien on
the property securing such Bonds ranking prior to or on a parity
with the lien securing such Bonds.
7. The property specifically described as mortgaged property
in the Indenture constitutes substantially all of the property
owned by the Company and used by, or useful to, it in its
business, except for the property expressly excepted from the
Indenture. None of the real estate and rights in real estate
described in the schedules to the Indenture and which constitute
the principal properties of the Company is excluded from the lien
of the Indenture by virtue of the provisions of clause (c) of the
paragraph in the Original Indenture beginning "But Specifically
Reserving, Excepting and Excluding," and as to the remainder of
the properties described in said schedules the exclusions, if
any, by virtue of said clause (c) are minor.
<PAGE>
8. The principal substations of the Company are in general
on land owned by the Company, the balance being upon land of
others pursuant to lease or other arrangements. The electric
lines and related equipment of the Company are in general on land
of others, being in substantial part located upon, over, or under
public streets or highways and in part upon, over, or under
private ways or other property not owned by the Company, such
occupation of private property in general pursuant to easements,
licenses, or permits from owners thereof, but without examination
of titles, or pursuant to long user, a majority of the poles
being owned jointly with others, principally telephone companies.
9. With respect to the issue and sale of the Bonds, an order
has been issued by the Massachusetts Department of Public
Utilities, to the extent it has jurisdiction, authorizing the
issue and sale of the Bonds and said order remains, to the best
of our knowledge, in effect at this date; the Company is exempted
by Rule 52 under the Public Utility Holding Company Act of 1935
(the 1935 Act) from the requirement of an order of the Securities
and Exchange Commission (the Commission); the Indenture has been
qualified under the Trust Indenture Act of 1939; the Registration
Statement referred to below has become effective under the
Securities Act of 1933, as amended (the Securities Act); said
order and said Registration Statement remain, to the best of our
knowledge, in effect at this date; and no other approval,
consent, or action of any governmental or regulatory authority is
required for the issue and sale of the Bonds or the carrying out
of the provisions of the Underwriting Agreement (except under the
so-called blue-sky or securities laws of the several states in
connection with sales by you and others of the Bonds, the
applicability of which we have not considered and as to which we
express no opinion).
10. The statements upon our authority made or incorporated
by reference in the registration statement, as amended by all
amendments thereto, filed with the Commission under the
Securities Act (the Registration Statement) and in the prospectus
dated __________, 19__, as supplemented by the prospectus
supplement dated __________, 19__, relating to the Bonds (the
Prospectus) are correct; the Registration Statement and the
Prospectus, including all documents incorporated by reference
therein in accordance with the requirements of Form S-3 under the
Securities Act (except for the financial statements contained or
incorporated by reference therein, as to which we express no
opinion), comply as to form in all material respects with the
relevant requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended, and of the applicable rules,
regulations, and releases of the Commission thereunder; and the
Bonds conform to the description thereof in the Registration
Statement and Prospectus. While we have not made a detailed
review of the accuracy or completeness of other information in,
or incorporated by reference in, the Registration Statement and
<PAGE>
Prospectus and assume no responsibility therefor, nothing has
come to our attention which leads us to believe that either the
Registration Statement or the Prospectus, or the documents
incorporated by reference therein, contains any untrue statement
of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
The above opinion, insofar as it relates to mortgaging of
franchises, relates to the mortgaging of secondary franchises and
not to the mortgaging of the Company's primary franchise to be a
corporation. The above opinion insofar as it relates to the
execution and delivery of the Original Indenture and certain
supplemental indentures prior to the __________ Supplemental
Indenture is based upon opinions of other counsel for the
Company. The above opinion, insofar as it relates to titles, is
based in part upon opinions of local counsel and of counsel
associated with us and in part upon examination of titles of the
Company to its principal properties by title examiners under our
direction, the direction of counsel associated with us, or the
direction of local counsel, or examination by local counsel and
reviewed by us or counsel associated with us, such title
examiners and local counsel being, in our opinion, of good
standing and experienced in the examination of titles. In the
case of easements over lands of others, the title of the grantors
of the easements were not in all cases examined to the same
extent as in the case of fee ownership and in some instances such
easements depend upon long user.
We are members of the bar of The Commonwealth of
Massachusetts and we do not express any opinion as to matters
governed by any laws other than those of The Commonwealth of
Massachusetts and the Federal Law of the United States of
America.
Yours very truly,
ROBERT KING WULFF*
Corporation Counsel
KIRK L. RAMSAUER*
Assistant General Counsel
______________________
*To be signed by ROBERT KING WULFF and/or KIRK L. RAMSAUER.
<PAGE>
Exhibit 2 to
Terms of Purchase
PROPOSED FORM OF OPINION
of
MILBANK, TWEED, HADLEY & MCCLOY
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
__________, 19__
and the other several Underwriters
named in the Underwriting Agreement
referred to below,
Re: MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bonds, Series ___, _____%, due __________
Dear Sirs:
We have acted as your counsel in connection with your
purchase from Massachusetts Electric Company, a Massachusetts
corporation (the Company), pursuant to a Underwriting Agreement
dated __________, 19__ (the Underwriting Agreement) made with the
Company, of $__________ aggregate principal amount of First
Mortgage Bonds, Series ___, _____%, due __________ (the Bonds) of
the Company, issued under and pursuant to the First Mortgage
Indenture and Deed of Trust dated as of July 1, 1949, as
supplemented and modified by __________ supplemental indentures
(collectively, the Mortgage), between the Company and State
Street Bank and Trust Company, successor to The Second National
Bank of Boston, as Trustee (the Trustee). As such counsel we
have reviewed originals, or copies certified to our satisfaction,
of all such corporate records of the Company, indentures,
agreements and other instruments, certificates of public
officials and of officers and representatives of the Company and
of the Trustee, and other documents, as we have deemed necessary
to require as a basis for the opinions hereinafter expressed. In
such examination we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity with the original documents of all
documents submitted to us as copies, and the authenticity of the
originals of such latter documents. As to various questions of
fact material to such opinions, we have, when relevant facts were
not independently established, relied upon certifications by
officers of the Company and other appropriate persons and
statements contained in the Registration Statement hereinafter
mentioned.
<PAGE>
In addition, we attended the closing held today at the
principal office of State Street Bank and Trust Company, 225
Franklin Street, Fourth Floor, Boston, Massachusetts, in the
course of which the Company caused to be delivered to you
$__________ aggregate principal amount of Bonds against payment
therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion
that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The registration statement with respect to the Bonds
filed with the Securities and Exchange Commission (the
Commission) pursuant to the Securities Act of 1933, as amended
(the Act), as amended by all amendments thereto (the Registration
Statement), has become effective and, to the best of our
knowledge, remains in effect on the date hereof, and the
prospectus with respect to the Bonds dated __________, 19__, as
supplemented by the prospectus supplement dated __________, 19__,
including all documents incorporated by reference therein
pursuant to the requirements of Form S-3 under the Act (the
Prospectus), is lawful for use for the purposes specified in the
Act in connection with the offer for sale and the sale of the
Bonds in the manner specified therein, subject to compliance with
the provisions of securities or "blue sky" laws of certain
jurisdictions in connection with the offer and sale of the Bonds
in such jurisdictions.
The Registration Statement and the Prospectus (except the
financial statements and other financial data included therein,
as to which we express no opinion) comply as to form in all
material respects with the requirements of the Act and with the
applicable published rules and regulations of the Commission
under the Act.
As to the financial statements included in the Prospectus, we
have made no examination of the Company's books of account and we
therefore express no opinion. As to the statements under
"Description of Series ___ Bonds", (except the financial data
included thereunder as to which we express no opinion), subject
to the concluding paragraph of this opinion, we are of the
opinion that the statements are accurate and do not omit any
material fact required to be stated therein or necessary to make
such statements not misleading. As to other matters, we have not
undertaken to determine independently the accuracy or
completeness of the statements contained in the Registration
Statement or in the Prospectus. We have, however, participated
in conferences with representatives of the Company and of New
<PAGE>
England Power Service Company in connection with the preparation
of the Registration Statement and the Prospectus and we have
reviewed all documents incorporated by reference in the
Prospectus pursuant to the requirements of Form S-3 under the Act
and such of the corporate records of the Company as we deemed
advisable. None of the foregoing disclosed to us any information
which gave us reason to believe that the Registration Statement
or the Prospectus (except the financial statements and other
financial data included therein, as to which we express no
opinion) contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
3. The Company is exempt under Rule 52 of the Public Utility
Holding Company Act of 1935 from the requirement for an order of
the Commission under said Act with respect to the issue and sale
of the Bonds.
4. The Massachusetts Department of Public Utilities has
issued an appropriate order with respect to the issue and sale of
the Bonds. Said order, to the best of our knowledge, remains in
effect on the date hereof.
5. No other order, approval or consent of any public
regulatory body is legally required under federal law for the
issue and sale of the Bonds pursuant to the Underwriting
Agreement or the carrying out of the provisions of the
Underwriting Agreement.
6. The Mortgage has been duly authorized, executed and
delivered by the Company, and having, in the opinion of Robert
King Wulff, Esq., Corporation Counsel for the Company, and Kirk
L. Ramsauer, Esq., Assistant General Counsel for the Company,
referred to below, upon which we rely, been duly filed and
recorded, constitutes a valid mortgage legally effective to
create a lien (as to the ranking of which reference is made to
said opinion) as security for the Bonds upon the interest of the
Company in the property now owned by the Company which is
described in the Mortgage as subject to the lien thereof; and the
Mortgage is a valid, binding and enforceable instrument, subject,
as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights
generally. The enforceability of the Mortgage is further subject
to the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good
faith and fair dealing, and subject also to the possible
<PAGE>
inefficacy of certain provisions of the Mortgage, whereby the
Company undertakes, upon the happening of an event of default, to
create a lien upon certain property theretofore expressly
excluded from the Mortgage.
The Mortgage has been duly qualified under the Trust
Indenture Act of 1939, as amended.
7. The Bonds purchased by you conform as to legal matters in
all substantial respects to the description thereof contained in
the Registration Statement and the Prospectus and have been duly
authorized and (assuming due execution thereof by the Company and
certification by the Trustee) issued under the Mortgage and are
valid and binding obligations of the Company.
The foregoing opinions are subject to the following:
We have made no examination of the Company's title to the
properties purported to be owned by it or of the ranking of the
lien created by the Mortgage or of the franchises under which the
Company operates. We express no opinion on such matters
(including the adequacy of the real property descriptions in the
Mortgage), and, to the extent that the opinions herein expressed
involve such matters, we have relied upon the opinion of Robert
King Wulff, Esq. and Kirk L. Ramsauer, Esq., addressed to you on
this date. Furthermore, with respect to the filing and recording
of the Mortgage, we have also relied upon said opinion of counsel
for the Company.
In rendering the opinions hereinabove expressed, we have
relied upon said opinion of Robert King Wulff, Esq. and Kirk L.
Ramsauer, Esq. as to all matters governed by the law of the
Commonwealth of Massachusetts and as to such matters, the
opinions hereinabove expressed are subject to all qualifications,
limitations, assumptions and reliances, and other considerations,
therein set forth.
We are members of the bar of the State of New York and we do
not express any opinion as to matters governed by any laws other
than the law of the State of New York, the Federal law of the
United States of America, and to the extent hereinabove stated in
reliance upon said opinions of Robert King Wulff, Esq. and Kirk
L. Ramsauer, Esq., the law of the Commonwealth of Massachusetts.
Very truly yours,
MILBANK, TWEED, HADLEY & MCCLOY
<PAGE>
Exhibit 1-C
to Form S-3
$
MASSACHUSETTS ELECTRIC COMPANY
(a Massachusetts corporation)
First Mortgage Bonds, Series
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
[DATE]
[Name of Agent]
[Address of Agent]
Dear Agent:
Massachusetts Electric Company (the Company) agrees with you
with respect to the issue and sale by the Company of up to $
aggregate principal amount of its First Mortgage Bonds,
Series (the Bonds). The Bonds are to be issued pursuant to
an indenture supplemental (the Supplemental Indenture) to the
First Mortgage Indenture and Deed of Trust dated as of July 1,
1949 (the Original Indenture) between the Company and State
Street Bank and Trust Company (the Trustee), formerly Second Bank
- - State Street Trust Company, successor to The Second National
Bank of Boston (such Original Indenture as heretofore and
hereafter supplemented, the Indenture).
Subject to the terms and conditions stated herein, the
Company hereby (i) appoints you as agent of the Company for the
purpose of soliciting purchases of the Bonds from the Company by
others and (ii) agrees that whenever the Company determines to
sell Bonds directly to you as principal for resale to others, it
will enter into a Terms Agreement relating to such sale in
accordance with the provisions of Section 2(b) hereof. The Bonds
shall have the maturities, interest rates, provisions for
redemption, and other terms set forth in the Prospectus referred
to below, as it may be supplemented from time to time.
<PAGE>
The Company has filed with the Securities and Exchange
Commission (the SEC) a registration statement on Form S-3 for the
registration of First Mortgage Bonds, including the Bonds, and
the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the Securities
Act). Such registration statement has been declared effective by
the SEC, and the Indenture has been qualified under the Trust
Indenture Act of 1939 (the Trust Indenture Act). Such
registration statement and the prospectus filed pursuant to Rule
424 under the Securities Act, including all documents
incorporated therein by reference, as from time to time amended
or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the Exchange Act), the
Securities Act, or otherwise, are referred to herein as the
Registration Statement and the Prospectus, respectively.
The Company may from time to time appoint one or more
other persons as agents for soliciting purchases of the Bonds
from the Company by entering into distribution agreements
substantially similar to this Agreement. The Company will notify
you prior to making any such appointment and will notify you of
any proposed additions, modifications, amendments, waivers, or
changes of any nature with respect to any such distribution
agreement. The Company reserves the right to sell, and may
accept offers to purchase, Bonds directly on its own behalf.
As used herein, Commencement Date shall have the
meaning set out in Section 2(d) hereof and Settlement Date shall
mean the time and date for the delivery of and payment for Bonds,
whether sold under Section 2(b) hereof and the applicable Terms
Agreement or under Section 2(a) hereof and the Administrative
Procedures set out in Exhibit B hereto.
SECTION 1. Representations and Warranties. (a) The
Company represents and warrants to you, as of the Commencement
Date and each Settlement Date with respect to any applicable
Terms Agreement, and as of the times referred to in Sections 6(a)
and 6(b) hereof (in each case the Representation Date), as
follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective,
complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of
the Securities Act and the rules and regulations thereunder
(the Regulations) and the Trust Indenture Act. The
Registration Statement, at the time the Registration
<PAGE>
Statement became effective did not, and as of the applicable
Representation Date will not, contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the
time the Registration Statement became effective did not,
and as of the applicable Representation Date will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon
information furnished to the Company in writing by you for
use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification under the
Trust Indenture Act (Form T-1) of the Trustee.
(ii) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed
with the SEC, complied and will comply in all material
respects with the requirements of the Exchange Act and the
rules and regulations thereunder (the Exchange Act
Regulations), and, when read together and with the other
information in the Prospectus, at the time the Registration
Statement became, and any amendments thereto become,
effective, did not 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, in the light of the circumstances under which they
were or are made, not misleading.
(iii) Coopers & Lybrand L. L. P., who have certified
certain financial statements included or incorporated by
reference in the Prospectus, are independent public
accountants as required by the Securities Act and the
Regulations.
(iv) The financial statements of the Company included
or incorporated by reference in the Registration Statement
will be correct and complete and will truly present the
financial position of the Company as at the dates stated
therein and the results of the operations of the Company for
the periods stated therein. The Company had, on the date of
the latest financial statements included or incorporated by
reference in the Registration Statement, no material
liabilities or obligations, fixed or contingent, other than
<PAGE>
those disclosed in the Prospectus or such financial
statements, and since that date the Company has not incurred
any material liabilities or obligations still outstanding,
fixed or contingent, other than (i) in the ordinary course
of business, (ii) as a result of transactions disclosed in
the Prospectus, or (iii) short-term borrowings which result
in short-term note indebtedness of not exceeding, in the
aggregate at any one time outstanding, the limitations then
authorized for the Company by the SEC under the Public
Utility Holding Company Act of 1935 (the 1935 Act). Since
the date of the latest financial statements included or
incorporated by reference in the Registration Statement,
there has not been any material adverse change in the
financial condition of the Company not disclosed in the
Prospectus. Except as disclosed in said Prospectus, there
are no proceedings at law or in equity or before any Federal
or state commission or other public authority the result of
which might have a material adverse effect upon the
financial condition of the Company.
(v) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this Distribution Agreement and each applicable Terms
Agreement will not violate any of the terms, conditions, or
provisions of, or constitute a default under, any franchise,
indenture, or other contract or agreement to which the
Company is now a party or by which the Company or its
property may be bound or affected, or the Company's articles
of organization, by-laws, or preferred stock provisions, or
any order of any court or administrative agency by which the
Company is bound.
(vi) The issue and sale of the Bonds are solely for
the purpose of financing the business of the Company.
(b) Any certificate signed by any officer of the
Company and delivered to you or to your counsel in connection
with an offering of Bonds shall be deemed a representation and
warranty of and by the Company to you as to the matters covered
thereby.
SECTION 2. Solicitations as Agent; Purchases as
Principal.
(a) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to
the terms and conditions herein set forth, you agree, as agent of
the Company to use your reasonable best efforts to solicit offers
<PAGE>
to purchase the Bonds upon the terms and conditions set forth in
the Prospectus. You are hereinafter sometimes referred to, in
your capacity as agent, as the Agent.
The Company reserves the right, in its sole discretion,
to suspend solicitation of purchases of the Bonds commencing at
any time for any period of time or permanently. Upon receipt of
instructions from the Company, you will forthwith suspend
solicitation of purchases from the Company until such time as the
Company has advised you that such solicitation may be resumed.
The Company agrees to pay you a commission, in the form
of a discount, equal to the percentage of the principal amount of
each Bond sold by the Company as a result of a solicitation made
by you as set forth in Schedule A hereto.
As Agent, you are authorized to solicit orders for the
Bonds only in denominations of $1,000 or any integral multiple
thereof. You shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Bonds received by you
as Agent. The Company shall have the sole right to accept offers
to purchase the Bonds and may reject any such offer in whole or
in part. You shall have the right, in your discretion reasonably
exercised, to reject any offer to purchase the Bonds received by
you in whole or in part, and any such rejection shall not be
deemed a breach of your agreement contained herein. The Company
reserves the right to sell, and may solicit and accept offers to
purchase, Bonds directly on its own behalf, and, in the case of
any such sale not resulting from a solicitation made by you, no
commission will be payable with respect to such sale.
(b) Purchases as Principal. Each sale of Bonds to you
as principal shall be made in accordance with the terms of this
Agreement and a separate agreement which will provide for the
sale of such Bonds to, and the purchase by, you. Each such
separate agreement (which shall be substantially in the form of
Exhibit A hereto and which may take the form of an exchange of
any standard form of written telecommunication between you and
the Company) is herein referred to as a Terms Agreement. Your
commitment to purchase Bonds pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount
of Bonds to be purchased by you pursuant thereto, the price to be
paid to the Company for such Bonds, the initial public offering
price, if any, at which the Bonds are proposed to be reoffered,
the Settlement Date, the place of delivery of and payment for
such Bonds, and any other particular terms of the Bonds. Such
<PAGE>
Terms Agreement shall also specify any requirements for opinions
of counsel, letters from Coopers & Lybrand L. L. P., and
certificates of officers of the Company pursuant to Section 5
hereof.
(c) Procedures. Procedural details relating to the
issue and delivery of Bonds, and solicitation of offers to
purchase Bonds, and the payment in each case therefor, shall be
as set forth in the Administrative Procedures attached hereto as
Exhibit B (the Procedures). You and the Company agree to perform
the respective duties and obligations specifically provided to be
performed by each of us herein and in the Procedures, as amended
from time to time. The Procedures may be amended only by written
agreement of you and the Company.
(d) Delivery. The documents required to be delivered
by Section 5 hereof shall be delivered at the office of Peabody &
Arnold, counsel for State Street Bank and Trust Company, on the
date hereof, or at such other time as you and the Company may
agree upon in writing, which in no event shall be later than the
time at which you commence solicitation of purchases of Bonds
hereunder. Such time and date are herein called the Commencement
Date.
SECTION 3. Covenants of the Company. The Company
covenants with you as follows:
(a) If, at any time when the Prospectus is required by
the Securities Act to be delivered in connection with sales of
the Bonds, any event shall occur or condition exist as a result
of which it is necessary, in the reasonable opinion of your
counsel or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, at
any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the
Securities Act or the Regulations, immediate notice shall be
given, and confirmed in writing, to you to cease the solicitation
of offers to purchase the Bonds in your capacity as Agent and to
cease sales of any Bonds you may then own as principal, and the
Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to
the Exchange Act or the Securities Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement comply with such requirements.
<PAGE>
(b) On or prior to the date on which there shall be
released to the general public interim financial statement
information related to the Company with respect to each of the
first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Company shall furnish such information to you, confirmed in
writing, and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference full or
capsule financial information with respect to the results of
operations of the Company for the period between the end of the
preceding fiscal year and the end of such quarter or for such
fiscal year, as the case may be, and corresponding information
for the comparable period of the preceding fiscal year, as well
as such other information and explanations as shall be necessary
for an understanding of such financial information or as shall be
required by the Securities Act or the Regulations; provided,
however, that if on the date of such release you shall have
suspended solicitation of purchases of the Bonds in your capacity
as Agent pursuant to a request from the Company and shall not
then hold any Bonds as principal, the Company shall not be
obligated so to amend or supplement the Prospectus until such
time as the Company shall determine that solicitation of
purchases of the Bonds should be resumed or shall subsequently
enter into a new Terms Agreement with you.
(c) On or prior to the date on which there shall be
released to the general public financial information included in
or derived from the audited financial statements of the Company
for the preceding fiscal year, the Company shall cause the
Registration Statement and the Prospectus to be amended, whether
by the filing of documents pursuant to the Exchange Act or the
Securities Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such
financial statements or as shall be required by the Securities
Act or the Regulations; provided, however, that if on the date of
such release you shall have suspended solicitation of purchases
of the Bonds in your capacity as Agent pursuant to a request from
the Company, and shall not then hold any Bonds as principal, the
Company shall not be obligated so to amend or supplement the
Prospectus until such time as the Company shall determine that
solicitation of purchases of the Bonds should be resumed or shall
subsequently enter into a new Terms Agreement with you.
(d) The Company will make generally available to its
security holders as soon as practicable, but not later than 18
months after the effective date of the Registration Statement and
<PAGE>
of each post-effective amendment thereto and after the date of
each Terms Agreement, an earnings statement of the Company (which
need not be audited) complying with Section 11(a) of the
Securities Act and the Regulations (including, at the option of
the Company, Rule 158 under the Act).
(e) The Company will give to you notice of its
intention to file any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the Exchange Act or the
Securities Act or otherwise (other than by the filing of an
amendment or supplement relating solely to the terms of an issue
of Bonds, a change in the principal amount of Bonds remaining to
be sold, or similar changes) and will furnish your counsel with
copies of any such amendment or supplement or other documents
proposed to be filed, other than a current report on Form 8-K, a
reasonable time in advance of filing, and will afford your
counsel a reasonable opportunity to examine such amendment or
supplement or other document and to make objections of substance
thereto.
(f) The Company will advise you immediately, (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the filing with the SEC of any supplement to the
Prospectus or any document to be filed pursuant to the Exchange
Act or the Securities Act which will be incorporated by reference
in the Prospectus, (iii) of the receipt of any comments from the
SEC with respect to the Registration Statement or the Prospectus,
(iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by
the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose, (vi) of the issuance by the Massachusetts
Department of Public Utilities (MDPU) of any order altering,
suspending, supplementing, or otherwise affecting any of its
order permitting the issuance and sale of the Bonds, (vii) of any
action by the SEC which has the effect of eliminating the
exemption from the requirement of obtaining an order under the
1935 Act pursuant to Rule 52 promulgated thereunder, and (viii)
of the commencement of any litigation in connection with the
Bonds against the Company or any of its directors or any signer
of the Registration Statement.
(g) The Company will promptly deliver to you a
certified copy of the Registration Statement, as originally
filed, and of all amendments thereto heretofore or hereafter
made, including a copy of each consent included or incorporated
by reference therein or filed as an exhibit thereto (but
excluding any other exhibit thereto unless specifically requested
<PAGE>
by you) all to the extent not previously delivered. The Company
will deliver to you in New York or Boston, as requested, as many
unsigned copies of the Prospectus (as supplemented or amended, if
the Company shall have made any supplements or amendments
thereto) and any documents incorporated by reference therein as
you may reasonably request so long as you are required to deliver
a Prospectus in connection with the sale or solicitation of
offers to purchase the Bonds.
(h) The Company will furnish to you, at the earliest
time the Company makes the same available to others, copies of
its annual reports and other financial reports furnished or made
available to the public generally.
(i) The Company will endeavor, in cooperation with
you, to qualify the Bonds for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Bonds; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will
file such statements and reports as may be required by the laws
of each jurisdiction in which the Bonds have been qualified as
above provided.
(j) The Company, during the period when the Prospectus
is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the SEC pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act.
(k) Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company
will not, without your prior consent, offer or sell, or enter
into any agreement to sell, any debt securities of the Company
(other than the Bonds) of the same or substantially similar
maturity to the Bonds, except as may otherwise be provided in any
such Terms Agreement.
SECTION 4. Payment of Expenses. The Company covenants
and agrees with you that the Company will pay or cause to be paid
expenses incident to its performance of its obligations under
this Agreement, including the following: (i) the preparation and
filing of the Registration Statement and all amendments thereto,
(ii) the preparation, issuance, and delivery of the Bonds if in
certificated form, (iii) the fees and disbursements of the
Company's accountants and of the Trustee and its counsel, (iv)
the qualification of the Bonds under securities laws in
<PAGE>
accordance with the provisions of Section 3(i), including filing
fees and the reasonable fees and disbursements of your counsel in
connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey, (v) the
printing and delivery to you in quantities as hereinabove stated
of copies of the Registration Statement and all amendments
thereto, and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the
Indenture and any Blue Sky Survey and any Legal Investment
Survey, (vii) any fees charged by rating agencies for the rating
of the Bonds, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc., and (ix) all other costs and expenses incident to
the performance of its obligations hereunder which are not
otherwise specifically provided in this subsection.
The Company shall also reimburse you [the Agents] for
the reasonable fees and disbursements of your counsel [for the
Agents] and any out-of-pocket expenses, including advertising
expenses, incurred with the approval of the Company.
SECTION 5. Conditions of Obligations. Your
obligations to solicit offers to purchase the Bonds as agent of
the Company and your obligations to purchase Bonds pursuant to
any Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein,
to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all covenants
and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) Prior to the Commencement Date, the Indenture
shall have been qualified under the Trust Indenture Act; there
shall have been issued an order of the MDPU, to the extent that
it has jurisdiction, permitting the issuance and sale of the
Bonds, and at such time and at each Settlement Date with respect
to any applicable Terms Agreement such order shall not contain
any provision which, in your opinion or the opinion of the
Company, is unduly burdensome to the Company.
(b) At the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, if called
for by such Terms Agreement, you shall have received:
(i) The opinion, dated as of such date, of Robert King
Wulff, Esquire, and/or Kirk L. Ramsauer, Esquire, Counsel
for the Company, in form and substance satisfactory to you
and your counsel, to the effect that:
<PAGE>
(A) The Company is a corporation validly
organized and duly existing under the laws of The
Commonwealth of Massachusetts, has the corporate power
to transact the electric business in which it is now
engaged, and has franchises adequate for carrying on
such business.
(B) This Agreement (and, if the opinion is being
given pursuant to Section 6(c) hereof on account of the
Company having entered into a Terms Agreement, the
applicable Terms Agreement) has been duly authorized,
executed, and delivered by the Company.
(C) The Company had corporate power proper and
adequate for making the Indenture which was duly
executed and delivered in accordance with proper
authority from the stockholders and directors of the
Company.
(D) The Supplemental Indenture, including
Schedule A thereto, contains a correct and adequate
description of the real estate, rights or interests in
real estate, and fixed property of the Company acquired
up to __________, and not included in the Original
Indenture or the previous supplemental indentures, and
then owned of record, except for the properties
expressly excluded from the Indenture.
(E) All filings and recordings of or in respect
of the Indenture have been duly made where such filings
and recordings are necessary for the preservation or
protection of the lien thereof, and the Indenture is a
valid, binding, and enforceable instrument subject to
laws of general application affecting the rights and
remedies of mortgagees and creditors.
(F) The Company has corporate power proper and
adequate for the execution and issuance of the Bonds
under the Indenture in the aggregate principal amount
of $ , and, in accordance with due
authorization from the stockholders and directors of
the Company, when executed and certified as specified
in the Indenture and delivered against payment therefor
in accordance with this Agreement, will be duly issued
and valid and binding obligations of the Company and
entitled to the benefits and security of the Indenture.
(G) The Bonds are secured by a direct first
mortgage lien on substantially all the properties and
franchises now owned by the Company, subject to the
<PAGE>
property specifically excepted in the granting clauses
of, and to the liens permitted by, the Indenture,
including the prior lien of the Trustee for
compensation, expenses, and liabilities; and, except as
disclosed in the Prospectus, there is no existing
indebtedness secured by lien on the property securing
such Bonds ranking prior to or on a parity with the
lien securing the Bonds.
(H) The property specifically described as
mortgaged property in the Indenture constitutes
substantially all of the property owned by the Company
and used by, or useful to, it in its business, except
for the property expressly excepted from the Indenture.
None of the real estate and rights in real estate
described in the schedules to the Indenture and which
constitute the principal properties of the Company is
excluded from the lien of the Indenture by virtue of
the provisions of clause (c) of the paragraph in the
Original Indenture beginning "But Specifically
Reserving, Excepting and Excluding," and as to the
remainder of the properties described in said schedules
the exclusions, if any, by virtue of said clause (c)
are minor.
(I) The principal substations of the Company are
in general on land owned by the Company, the balance
being upon land of others pursuant to lease or other
arrangements. The electric lines and related equipment
of the Company are in general on land of others, being
in substantial part located upon, over, or under public
streets or highways and in part upon, over, or under
private ways or other property not owned by the
Company, such occupation of private property being in
general pursuant to easements, licenses, or permits
from owners thereof, but without examination of titles,
or pursuant to long user, a majority of the poles being
owned jointly with others, principally telephone
companies.
(J) With respect to the issue and sale of the
Bonds, an appropriate order has been issued by the
MDPU, to the extent it has jurisdiction, authorizing
the issue and sale of the Bonds; the Company is
exempted by Rule 52 under the 1935 Act from the
requirement of an order of the SEC; the Indenture has
been qualified under the Trust Indenture Act of 1939;
the Registration Statement has become effective under
the Securities Act; said order and said Registration
<PAGE>
Statement remain, to the best of such counsel's
knowledge, in effect at this date; and no other
approval, consent, or action of any governmental or
regulatory authority is required for the issue and sale
of the Bonds or the carrying out of the provisions of
this Agreement (except that such counsel need express
no opinion concerning the applicability of the blue-sky
or securities laws of the several states in connection
with sales by you and others of the Bonds).
(K) The statements upon such counsel's authority
made or incorporated by reference in the Registration
Statement and in the Prospectus, relating to the Bonds
are correct; the Registration Statement and the
Prospectus, including all documents incorporated by
reference therein in accordance with the requirements
of Form S-3 under the Securities Act (except for the
financial statements contained or incorporated by
reference therein, as to which such counsel need
express no opinion), comply as to form in all material
respects with the relevant requirements of the
Securities Act and the Exchange Act, as amended, and of
the applicable rules, regulations, and releases of the
SEC thereunder; and the Bonds conform to the
description thereof in the Registration Statement and
Prospectus.
(L) Nothing has come to the attention of such
counsel which leads them to believe that either the
Registration Statement, or the documents incorporated
by reference therein, contains an untrue statement of a
material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the
Prospectus, as amended or supplemented at the
Commencement Date or said Settlement Date, as the case
may be, 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
in which they were made, not misleading.
(ii) The opinion of Milbank, Tweed, Hadley & McCloy,
counsel to the Agent, with respect to the validity of the
Indenture, the Bonds, the Registration Statement, the
Prospectus, and other related matters as you may reasonably
request.
(c) At the Commencement Date and at each Settlement
Date with respect to any Terms Agreement,
<PAGE>
(i) no stop order suspending the effectiveness of the
Registration Statement shall have been entered and be in
effect, no proceeding for that purpose shall be pending, and
any request on the part of the SEC for amendments or
additional information shall have been complied with to its
satisfaction;
(ii) the order of the MDPU referred to in paragraph
(a) of this Section shall remain in force and effect; and
(iii) the representations and warranties of the
Company herein shall be true and correct;
and you shall have received a certificate of an officer of the
Company, dated as of the Commencement Date or such Settlement
Date, if called for by the applicable Terms Agreement, to such
effect to the best of his knowledge, information and belief.
(d) At the Commencement Date and at each Settlement
Date with respect to any Terms Agreement, if called for by such
Terms Agreement, you shall have received from Coopers & Lybrand
L. L. P., a letter, dated as of the Commencement Date or such
Settlement Date, in form and substance satisfactory to you, to
the effect that:
(i) They are independent certified public accountants
with respect to the Company within the meaning of the
Securities Act and the and the applicable published rules
and regulations thereunder;
(ii) In their opinion the financial statements and
financial schedules (included or incorporated by reference
in the Registration Statement) examined by them as stated in
their report (incorporated by reference in the Registration
Statement) comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and of the published rules and
regulations thereunder;
(iii) On the basis of reading the minutes of the
meetings of the stockholders and the Board of Directors of
the Company held during any period subsequent to 199 , and
not covered by the financial statements referred to in
paragraph (ii) of this clause, as set forth in the minute
books through a specified date not more than five business
days prior to the date of their letter, a reading of the
unaudited financial statements of the Company included or
incorporated by reference in the Registration Statement, and
inquiries of officials of the Company who have
<PAGE>
responsibility for financial and accounting matters (which
procedures do not constitute an examination made in
accordance with generally accepted standards), they agree
that if any unaudited amounts of total operating revenue and
net income are set forth or incorporated by reference in the
Registration Statement, including amounts set forth under
"Selected Financial Information", they agree with the
corresponding amounts set forth in the unaudited financial
statements for that period. Those officials of the Company
who have responsibility for financial and accounting matters
stated that:
(A) that the unaudited financial statements
included or incorporated by reference in the
Registration Statement are in conformity as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the published
rules and regulations thereunder, and that said
financial statements are in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement;
(B) that, during the period from the date of the
latest financial statements included or incorporated by
reference in the Registration Statement through a
specified date not more than five business days prior
to the date of their letter, there was no change in the
capital stock and no increase in long-term debt of the
Company; and
(iv) That they have compared the dollar amounts
contained in Exhibit 12 (Computation of Ratio of Earnings to
Fixed Charges) to the Registration Statement with such
dollar amounts derived from the general accounting records
of the Company or from schedules prepared by the Company or
derived directly from such records or schedules by analysis
or computation, and have found such dollar amounts to be in
agreement, and have recalculated the ratios contained in
Exhibit 12 and have found the calculation of such ratios to
be mathematically correct, except in each case as otherwise
stated in said letter.
(e) At the Commencement Date and at each Settlement
Date with respect to any applicable Terms Agreement, your counsel
shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to
<PAGE>
pass upon the issuance and sale of the Bonds as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein
contained and all proceedings taken by the Company in connection
with the issuance and sale of the Bonds as herein contemplated
shall be satisfactory in form and substance to you and your
counsel.
(f) Your obligations to purchase Bonds pursuant to any
Terms Agreement will be subject to the following further
conditions: (i) the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as
of the date of the applicable Terms Agreement shall not have been
lowered since that date; (ii) there shall not have occurred,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business; (iii) there shall not have come to
your attention any facts that would cause you to believe that the
Prospectus, at the time it was required to be delivered to a
purchaser of the Bonds, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances existing at such time, not misleading; (iv) there
shall not have occurred any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) there shall not
have occurred any banking moratorium declared by Federal or New
York authorities; or (vi) there shall not have occurred any
outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress, or any
other substantial national or international calamity or emergency
if, in the judgment of the Agent, the effect of such outbreak,
escalation, declaration, calamity, or emergency makes it
impracticable or inadvisable to proceed.
If any condition specified in this Section shall not
have been fulfilled, this Agreement (and, at your option, any
Terms Agreement) may be terminated by you by notice to the
Company at any time at or prior to the applicable Settlement
Date, and such termination shall be without liability of any
party to any other party, except that the covenants set forth in
<PAGE>
Section 3(d) hereof, the provisions of Section 4 hereof, the
indemnity and contribution agreement set forth in Section 7
hereof, and the provisions of Sections 8 and 12 hereof shall
remain in effect.
SECTION 6. Additional Covenants of the Company. The
Company covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase
of Bonds, and each sale of Bonds to you pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to you
pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or you, of
the Bond or Bonds relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as
amended and supplemented to each such time);
(b) Within five business days after the Registration
Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement relating solely to the
terms of an issue of Bonds, a change in the principal amount of
Bonds remaining to be sold, or similar changes) or there is filed
with the SEC any document incorporated by reference into the
Prospectus, and, if so indicated in the applicable Terms
Agreement, each time the Company sells Bonds to you pursuant to a
Terms Agreement, the Company shall furnish or cause to be
furnished to you forthwith a certificate in form satisfactory to
you to the effect that the statements contained in the
certificate referred to in Section 5(c) hereof which were last
furnished to you are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu
of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(c), modified as
necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such certificates;
<PAGE>
(c) Within five business days after the Registration
Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement (i) relating solely to
the terms of an issue of Bonds, a change in the principal amount
of Bonds remaining to be sold, or similar changes or (ii) setting
forth or incorporating by reference financial statements or other
information as of and for a fiscal quarter) or there is filed
with the SEC any document (other than a document setting forth or
incorporating by reference only financial statements or other
financial information) incorporated by reference into the
Prospectus, and, if so indicated in the applicable Terms
Agreement, each time the Company sells Bonds to you pursuant to a
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to you and your counsel a written opinion of
Robert King Wulff and/or Kirk L. Ramsauer, Counsel for the
Company, or other counsel satisfactory to you, dated the date of
delivery of such opinion, in form satisfactory to you, of the
same tenor as the opinion referred to in paragraphs (K) and (L)
of Section 5(b)(i) hereof and as to such other matters referred
to in Section 5(b)(i) hereof as you may request but modified, as
necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such opinion or, in lieu of such opinion, counsel last furnishing
such opinion to you shall furnish you with a letter to the effect
that you may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance); and
(d) Within five business days after the filing with
the SEC of each of the Company's annual report on Form 10-K, the
Company's quarterly reports on Form 10-Q, and any of the
Company's current reports on Form 8-K which contain financial
information, and each other time that the Registration Statement
or the Prospectus shall be amended or supplemented to include
additional financial information or there is filed with the SEC
any document incorporated by reference into the Prospectus which
contains additional financial information or, if so indicated in
the applicable Terms Agreement, the Company sells Bonds to you
pursuant to a Terms Agreement, the Company shall cause Coopers &
Lybrand L. L. P. forthwith to furnish you a letter, dated no
earlier than the date of filing of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to you, of the same tenor as the
portions of the letter referred to in clauses (i) and (ii) of
Section 5(d) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date
<PAGE>
of such letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said Section
5(d) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and
for a fiscal quarter, Coopers & Lybrand L. L. P. may limit the
scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other
information included therein of an accounting, financial or
statistical nature is of such a nature that, in your reasonable
judgment, such letter should cover such other information;
provided, further, that with respect to the filing of any of the
Company's reports on Form 8-K containing only financial
information which does not in any way reflect any material change
in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, the Company may
provide you with a certificate of its Treasurer, Assistant
Treasurer, or a principal accounting officer to such effect in
lieu of the letter from Coopers & Lybrand L. L. P. referred to
above in this paragraph (d).
SECTION 7. Indemnification. (a) The Company will
indemnify and hold harmless you and each person, if any, who
controls you within the meaning of Section 15 of the Securities
Act against any loss, claim, or liability, joint or several
(including the reasonable cost of investigating or defending any
such alleged loss, claim, or liability and reasonable counsel
fees incurred in connection therewith), arising by reason of any
person acquiring any of the Bonds, on the ground that the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, includes or included an untrue statement of a
material fact or omits or omitted to state a material fact which
(in the case of the Registration Statement, or any amendment
thereto) is or was required to be stated therein or is or was
necessary to make the statements therein not misleading or which
(in the case of the Prospectus, or any amendment or supplement
thereto) is or was necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, unless such statement or omission was made in
reliance upon written information furnished to the Company by
you, for use therein, or unless such statement or omission shall
occur in the Statement of Eligibility and Qualification under the
Trust Indenture Act (Form T-1) of the Trustee under the
Indenture. Upon commencement of any such suit, if you or any
controlling person wish to make a claim in respect thereof
against the Company under its agreement herein contained, you or
such controlling person, as the case may be, shall, within thirty
<PAGE>
days after the summons or other first legal process giving
information of the nature of the claim shall have been served
upon you or upon such controlling person (or after he shall have
received notice of such service on any designated agent), give
notice in writing of such suit to the Company; but failure so to
notify the Company shall not relieve it from any liability which
it may have to the person against whom such suit is brought,
otherwise than on account of its indemnity agreement contained in
this paragraph. The Company will be entitled to participate at
its own expense in the defense or, if it so elects, to assume the
defense of any such suit, and, if the Company elects to assume
the defense, the defendant or defendants therein will be entitled
to participate in the defense but shall bear the fees and
expenses of any additional counsel retained by them, unless the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
No indemnity by the Company hereunder shall apply in respect of
(i) any Prospectus used at a time not authorized under the
Securities Act or this Agreement, (ii) any Prospectus used in
unamended or unsupplemented form after the same has been amended
or supplemented, provided the Company has supplied such amendment
or supplement to you, or (iii) you, or any person controlling
you, on account of any loss, claim, or liability arising by
reason of any person acquiring any of the Bonds, if a copy of the
Prospectus has not been sent or given by you or a securities
dealer to such person with or prior to the written confirmation
of the sale involved.
(b) You will indemnify and hold harmless the Company
and each of its officers and directors and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act, to the same extent as the Company in the
foregoing paragraph (a) agrees to indemnify and hold harmless
you, but only with respect to any written information furnished
to the Company by you for use in the Prospectus, or any amendment
or supplement thereto. If any action shall be brought hereunder
against the Company or any such officer, director, or controlling
person, you shall have the rights and duties given to the Company
by paragraph (a), and the Company or such officer, director, or
controlling person shall have the rights and duties given to you
by said paragraph.
<PAGE>
(c) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party, each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, or liability,
in such proportion as is appropriate to reflect not only the
relative benefits received by the Company on the one hand and by
you on the other but also the relative fault of the Company on
the one hand and of you on the other in connection with the
statement or omission that resulted in such loss, claim, or
liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and you on the other in connection with the sale of
the Bonds shall be deemed to be in the same proportion as the
total sales price received by the Company from the sale of the
Bonds to the date of liability, before deducting expenses, bear
to the total discounts or commissions, if any, received by you to
the date of such liability. The relative fault of the Company on
the one hand and of you on the other shall be determined by
reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or by you and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
SECTION 8. Status of the Agent. In soliciting
purchases of the Bonds from the Company, you are acting solely as
agent for the Company and not as principal. You will make
reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Bonds from the Company
has been solicited by you and accepted by the Company but you
shall not have any liability to the Company in the event any such
purchase is not consummated for any reason.
SECTION 9. Representations, Warranties and Agreement
to Survive Delivery. All representations, warranties and
agreements contained in this Agreement or any Terms Agreement, or
contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
you or any controlling person, or by or on behalf of the Company,
and shall survive each delivery of and payment for any of the
Bonds.
<PAGE>
SECTION 10. Termination. This Agreement may be
terminated for any reason, at any time by either party hereto
upon the giving of 30 days' written notice of such termination to
the other party hereto. In the event of any such termination,
neither party will have any liability to the other party hereto,
except that (i) you shall be entitled to any commissions earned
in accordance with the third paragraph of Section 2(a) hereof,
(ii) if at the time of termination (A) you shall own any of the
Bonds with the intention of reselling them or (B) an offer to
purchase any of the Bonds has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Bond or
Bonds relating thereto has not occurred, the covenants set forth
in Sections 3 and 6 hereof shall remain in effect until such
Bonds are so resold or delivered, as the case may be, and (iii)
the covenant set forth in Section 3(d) hereof, the provisions of
Section 4 hereof, the indemnity agreement set forth in Section 7
hereof, and the provisions of Sections 8 and 12 hereof shall
remain in effect.
SECTION 11. Notices. Any request, consent, notice, or
other communication on your behalf shall be given in writing
addressed to the Treasurer of the Company at 25 Research Drive,
Westborough, Massachusetts 01582, and any notice or other
communications by the Company to you shall be given in writing
addressed to ___________________.
SECTION 12. Parties. This Agreement and any Terms
Agreement shall inure to the benefit of and be binding on the
Agent and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or any Terms Agreement
is intended or shall be construed to give any person, firm, or
corporation, other than the parties hereto and their respective
successors and the controlling persons, officers, and directors
referred to in Section 7, and their heirs and legal
representatives, any legal or equitable right, remedy, or claim
under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of
the parties hereto and their respective successors and said
controlling persons, officers, directors, and their heirs and
legal representatives, and for the benefit of no other person,
firm, or corporation. No purchaser of Bonds shall be deemed to
be a successor by reason merely of such purchase.
<PAGE>
SECTION 13. Governing Law. This Agreement and the
rights and obligations of the parties created hereby shall be
governed by the laws of The Commonwealth of Massachusetts.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement between you
and the Company in accordance with its terms.
Very truly yours,
MASSACHUSETTS ELECTRIC COMPANY
By_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first
above written:
_________________________________
By________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
MASSACHUSETTS ELECTRIC COMPANY
(A Massachusetts corporation)
First Mortgage Bonds, Series
TERMS AGREEMENT
, 199
Massachusetts Electric Company
25 Research Drive
Westborough, Massachusetts 01582
Attention: Treasurer
Re: Distribution Agreement dated __________,19__
Subject to the terms and conditions of the Distribution
Agreement dated __________, 19__ between Massachusetts Electric
Company (the Company) and the undersigned, the undersigned agrees
to purchase the following Bonds: $
Original Issue Date:
Principal Amount:
Purchase Price: %
Original Issue Discount, if any:
Maturity Date:
Interest Rate: %
Redemption Provisions:
<PAGE>
Method of and Specified Funds for Payment of Purchase
Price:
[By certified or official bank check or checks, payable
to the order of the Company in Boston Federal Reserve
Bank (same day) Funds.] [By wire to a bank account
specified by the Company in immediately available
funds.]
Settlement Date:
Exceptions, if any, to Section 3(k) of the Distribution
Agreement:
[The following documents referred to in the
Distribution Agreement shall be delivered as a
condition to the Closing:
[The certificate referred to in Section
[5(c)][6(b)].]
[The opinion referred to in Section
[5(b)(i)][6(c)].]
[The opinion referred to in Section 5(b)(ii).]
[The accountants' letter referred to in
Section [5(d)][6(d)].]
Syndicate Provisions:
[Set forth any provisions relating to underwriters' default
and step-up of amounts to be
purchased by underwriters acting with [Agent]].
[NAME OF AGENT]
By_________________________________
Name:
Title:
Accepted:
MASSACHUSETTS ELECTRIC COMPANY
By________________________________________
Name:
Title:
<PAGE>
Schedule A
Medium Term Note Programs
-------------------------
Fee Schedule
------------
<PAGE>
EXHIBIT B
MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bonds, Series
Administrative Procedures
First Mortgage Bonds, Series (the Bonds) in the
aggregate principal amount of up to $__________ are to be offered
from time to time by Massachusetts Electric Company (the
Company). _____________________ as agent (the Agent) has agreed
to use its reasonable best efforts to solicit purchases of the
Bonds directly from the Company, and may also purchase Bonds, as
principal, for resale. The Bonds are being offered and sold
pursuant to a Distribution Agreement between the Company and the
Agent, dated __________ (the Distribution Agreement). The Bonds
have been registered with the Securities and Exchange Commission
(the SEC). The Bonds will be issued pursuant to an indenture
supplemental to the First Mortgage Indenture and Deed of Trust
dated as of July 1, 1949 (the Indenture) between the Company and
State Street Bank and Trust Company (formerly Second Bank - State
Street Trust Company, successor to The Second National Bank of
Boston), as trustee (in its capacity as trustee under the
Indenture and otherwise, referred to herein as State Street).
Each Bond will be represented by either a Global
Security (as defined hereinafter) delivered to State Street, as
agent for the Depository Trust Company (DTC), and recorded in the
book-entry system maintained by DTC (a Book-Entry Bond) or a
certificate delivered to the holder thereof or a person
designated by such holder (a Certificated Bond). In the event
that Book-Entry certificates are to be delivered to other
depositaries or their agents, the administrative procedures will
be appropriately amended or supplemented at that time. An owner
of a Book-Entry Bond will not be entitled to receive a
certificate representing such Bond. Book-Entry Bonds will be
issued in accordance with the administrative procedures set forth
in Part I hereof and Certificated Bonds will be issued in
accordance with the administrative procedures set forth in Part
II hereof.
To the extent the procedures set forth below conflict
with the provisions of the Bonds, the Indenture, or the
Distribution Agreement, the relevant provisions of the Bonds, the
Indenture, and the Distribution Agreement shall control. Unless
otherwise defined herein, terms defined in the Indenture shall be
used herein as therein defined.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY BONDS
In connection with the qualification of the Book-Entry
Bonds for eligibility in the book-entry system maintained by DTC,
State Street will perform the custodial, document control, and
administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from the
Company and State Street to DTC, dated as of __________, and a
Medium-Term Note Certificate Agreement between State Street and
DTC, dated as of August 21, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement
System (SDFS).
Issuance: On any date of settlement (as defined under
Settlement below) for one or more Book-Entry
Bonds, the Company will issue a single global
security in fully registered form without
coupons (a Global Security) representing up
to $__________ principal amount of all such
Bonds that have the same maturity, interest
rate, redemption, and, in the case of
original issue discount Bonds, original issue
discount provisions (collectively, the
Terms). Each Global Security will be dated
and issued as of the date of its
certification by State Street. No Global
Security will represent any Certificated
Bond.
CUSIP The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Corporation (the CUSIP Service Bureau) for
the reservation of one series of CUSIP
numbers (including tranche numbers). This
series consists of approximately 900 CUSIP
numbers and relates to Global Securities
representing the Book-Entry Bonds. The
Company has delivered to State Street and to
DTC a written list of the numbers in such
series. State Street will assign CUSIP
numbers to Global Securities as described
below under Settlement Procedure "B". DTC
will notify the CUSIP Service Bureau
<PAGE>
periodically of the CUSIP numbers that State
Street has assigned. At any time when fewer
than 100 of the reserved CUSIP numbers of the
series remain unassigned, and if it deems
necessary, the Company will reserve
additional CUSIP numbers for assignment to
Global Securities. Upon obtaining such
additional CUSIP numbers, the Company shall
deliver a list thereof to State Street and
DTC.
Registration: Each Global Security will be registered in
the name of Cede & Co., as nominee for DTC,
on the transfer registry maintained under the
Indenture. The beneficial owner of a Book-
Entry Bond (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in
DTC (with respect to such Bond, the
Participant) to act as agent or agents for
such owner in connection with the book-entry
system maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such Participant, a
credit balance with respect to such Bond in
the account of such Participant. The
ownership interest of such beneficial owner
in such Bond will be recorded through the
records of such Participant or through the
separate records of such Participant and one
or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Bond will be
accomplished by book entries made by DTC and,
in turn, by the Participant (and in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferees and transferors of such Bond.
Consolidations: State Street may deliver to DTC and the CUSIP
Service Bureau at any time, but at least 30
days before the consolidation is to be
effective, a written notice of consolidation
specifying (i) the CUSIP numbers of two or
more outstanding Global Securities that
<PAGE>
represent Book-Entry Bonds having the same
Terms and for which interest has been paid to
the same date, (ii) a date, occurring at
least thirty days before the next Interest
Payment Date for such Book-Entry Bonds, on
which such Global Securities shall be
exchanged for a single replacement Global
Security, and (iii) a new CUSIP number to be
assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send
to each Participant (including State Street)
a written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, State
Street will deliver to the CUSIP Service
Bureau a written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, State Street will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number,
and the CUSIP numbers of the exchanged Global
Securities will be cancelled and not
immediately reassigned.
Denominations: Book-Entry Bonds will be issued in principal
amounts of $1,000 or any integral multiple
thereof.
Interest: Each Book-Entry Bond will bear interest from
the date as of which the Global Security
representing such Book-Entry Bond was first
certified, at the annual rate stated on the
face thereof, payable on __________ and
__________ of each year (the Interest Payment
Dates) and at maturity or, upon earlier
redemption, the date of redemption. Each
payment of interest shall include interest
accrued to but excluding the Interest Payment
Date.
<PAGE>
Calculation of Interest (including payments for partial
Interest: periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
Interest will not accrue on the 31st day of
any month.
Payments of Promptly after the close of business on _____
Interest: or __________ (the Record Dates), State
Street will deliver to the Company and DTC a
written notice specifying by CUSIP number the
amount of interest to be paid on each Global
Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding with a maturity date or a
redemption date) and the total of such
amounts. Standard & Poor's Corporation will
use the information received in the pending
deposit message described under Settlement
Procedure "C" below in order to include the
amount of any interest payment and certain
other information regarding the related
Global Security in the appropriate daily bond
report published by Standard & Poor's
Corporation. DTC will confirm the amount
payable on each Global Security on such
Interest Payment Date by reference to the
appropriate bond reports published by
Standard & Poor's Corporation. The Company
will pay to State Street the total amount of
interest due on such Interest Payment Date
(other than on a maturity date or a
redemption date), and State Street will pay
such amount to DTC at the times and in the
manner set forth below. If any Interest
Payment Date for a Book-Entry Bond is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date. On each Interest
Payment Date, interest payments shall be made
to DTC in same day funds in accordance with
existing arrangements between State Street
and DTC. Thereafter, on each such date, DTC
will pay, in accordance with its SDFS
<PAGE>
operating procedures then in effect, such
amounts in funds available for immediate use
to the respective Participants in whose names
the Book-Entry Bonds represented by such
Global Securities are recorded in the book-
entry system maintained by DTC. Neither the
Company, nor State Street, nor the Agent
shall have any direct responsibility or
liability for the payment by DTC to such
Participants of the principal of and interest
on the Book-Entry Bonds.
The amount of any taxes required under
applicable law to be withheld from any
interest payment on a Book-Entry Bond will be
determined and withheld by the Participant,
indirect participant in DTC, or other person
responsible for forwarding payments and
materials directly to the beneficial owner of
such Bond.
The first payment of interest on any Bond
originally issued between a Record Date and
an Interest Payment Date will be made on the
Interest Payment Date following the next
succeeding Record Date.
Payment at Maturity On or about the first Business Day of each
and Redemption: month, State Street will deliver to the
Company and DTC a written list of principal
and interest to be paid on each Global
Security maturing either on a maturity date
or any redemption date in the following
month. The Company and DTC will confirm with
State Street the amounts of such principal
and interest payments with respect to each
such Global Security on or about the fifth
Business Day preceding any such maturity date
or redemption date, as the case may be, of
such Global Security. The Company will pay
to State Street the principal amount of such
Global Security, together with interest due
on such maturity date or redemption date.
State Street will pay such amounts to DTC at
the times and in the manner set forth below.
<PAGE>
If the maturity date or the redemption date
of a Global Security representing Book-Entry
Bonds is not a Business Day, the payment due
on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from
and after such maturity date or the
redemption date. Promptly after payment to
DTC of the principal and interest due on the
maturity date or the redemption date of such
Global Security and its return by DTC, State
Street will cancel such Global Security in
accordance with the terms of the Indenture.
The total amount of any principal and
interest due on Global Securities on any
Interest Payment Date or on the maturity date
or a redemption date shall be paid by the
Company to State Street in immediately
available funds for use by State Street on
such date. Prior to 10 A.M. (New York City
time) on each maturity date or redemption
date or as soon as possible thereafter, State
Street will pay by separate wire transfer
(using Fedwire message entry instructions in
a form previously agreed to with DTC) to an
account at the Federal Reserve Bank of New
York previously agreed to with DTC, in funds
available for immediate use by DTC, each
payment of principal (together with interest
thereon) due on Global Securities on any
maturity date or redemption date.
Rate Setting and The Company and the Agent will discuss from
Posting: time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Bonds that may be sold
as a result of the solicitation of offers by
the Agents. If the Company decides to set
prices of, and rates borne by, any Bonds in
respect of which the Agent is to solicit
offers (the setting of such prices and rates
to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted, it will promptly advise
the Agent of the prices and rates to be
posted.
<PAGE>
The Bonds will be sold at a price, exclusive
of accrued interest, which will be not less
than 95% nor more than 100% of the principal
amount and at an interest rate which will be
a multiple of 1/8 of 1%. Any discount will
not be greater than 1/4 of 1% for each year
to maturity.
Acceptance and The Company shall have the sole right to
Rejection of accept offers to purchase Bonds from the
Offers: Company and may reject any such offer in
whole or in part. The Agent shall
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Bonds from the Company received by it, other
than those rejected by such Agent. The Agent
shall have the right, in its discretion
reasonably exercised, to reject any offer in
whole or in part.
Settlement: The receipt of immediately available funds by
the Company in payment for a Book-Entry Bond
and the certification and issuance of the
Global Security representing such Bond shall,
with respect to such Bond, constitute
settlement. The date of such settlement is
herein referred to as the Settlement Date.
All offers accepted by the Company will be
settled on the fifth business day next
succeeding the date of acceptance unless
otherwise agreed by the purchaser and the
Company. The Settlement Date shall be
specified upon acceptance of an offer.
Settlement In the event of a purchase of Bonds by the
Procedures: Agent, as principal, appropriate settlement
details will be set forth in the applicable
Terms Agreement to be entered into between
the Agent and the Company pursuant to the
Distribution Agreement.
Settlement Procedures with regard to each
Book-Entry Bond sold by the Agent, as agent,
shall be as follows:
<PAGE>
A. The Agent will advise the Company of the
following settlement information:
1. Principal Amount.
2. Price of the Bonds.
3. Original Issue Discount, if any.
4. Maturity Date.
5. Interest Rate.
6. Redemption Provisions.
7. Agent's Commission.
8. Settlement Date.
B. The Company will notify State Street by
telephone of the information set forth
in Settlement Procedure "A" above and
the original issue date of the Bond.
State Street will assign a CUSIP number
to the Global Security representing such
Bond. State Street will also notify the
Company and the Agent of such CUSIP
number by telephone as soon as
practicable.
C. State Street will enter a pending
deposit message through DTC's
Participant Terminal System, providing
the following settlement information to
DTC, such information will be routed to
Standard & Poor's Corporation through
DTC:
1. The information set forth in
Settlement Procedure "A".
2. Initial Interest Payment Date for
such Bond, number of days by which
such date succeeds the related
Record Date and amount of interest
payable on such Interest Payment
Date.
<PAGE>
3. CUSIP number of the Global Security
representing such Bond.
4. Whether such Global Security will
represent any other Book-Entry Bond
(to the extent known at such time).
D. The Company shall telecopy (promptly
followed by the original) to State
Street the certificate as to form
relating to the Global Security
representing such Bonds. As soon as
practicable thereafter, the Company will
provide State Street with any additional
information set forth above.
E. The Company will prepare the Global
Security in the form set forth in the
Indenture, with specific terms as pre-
approved by the Company, the Agent, and
State Street.
F. The Company will cause State Street to
issue, certify, and deliver the Global
Security representing such Bonds. State
Street will hold the Global Security as
DTC's agent.
G. DTC will credit such Bond to the
participant account of State Street,
acting as DTC's agent, at DTC.
H. State Street will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Bond to State Street's participant
account and credit such Bond to the
Agent's participant account and (ii)
debit the Agent's settlement account and
credit State Street's settlement account
for an amount equal to the price of such
Bond less the Agent's commission. The
entry of such a deliver order shall
constitute a representation and warranty
by State Street to DTC that (a) the
<PAGE>
Global Security representing such Book-
Entry Bond has been issued and certified
and (b) State Street is holding such
Global Security pursuant to the Medium-
Term Note Certificate Agreement between
State Street and DTC.
I. The Agent will enter an SDFS deliver
order through DTC's Participation
Terminal System instructing DTC (i) to
debit such Bond to the Agent's
participant account and credit such Bond
to the participant accounts of the
Participant with respect to such Bond
and (ii) to debit the settlement
accounts of such Participant and credit
the settlement account of the Agent for
an amount equal to the price of such
Bond.
J. State Street will transfer to the
account of the Company maintained at the
Bank of Boston in Boston, Massachusetts
in immediately available funds in the
amount transferred to State Street in
accordance with Settlement Procedure
"H".
K. The Agent will confirm the purchase of
such Bond to the purchaser either by
transmitting to the Participants with
respect to such Bond a confirmation
order or orders through DTC's
institutional delivery system or by
mailing a written confirmation to such
purchaser.
L. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures "H" and "I" will
be settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
<PAGE>
M. Upon written request by the Company,
State Street will send to the Company a
statement setting forth the principal
amount of the Bonds outstanding as of
that date, after giving effect to such
transaction and all other orders of
which the Company has advised State
Street but which have not yet been
settled.
Settlement Procedures For offers of Book-Entry Bonds solicited
Timetable: by the Agent and accepted by the
Company, Settlement Procedures "A"
through "M" set forth above shall be
completed on or before the respective
times set forth below:
Settlement
Procedure Time
__________ ____
A 11:00 A.M. on the acceptance
date
B 12:00 Noon on the acceptance
date
C 2:00 P.M. on the acceptance
date
D-E 9:00 A.M. on the Settlement
Date
F-G 11:00 A.M. on the Settlement
Date
H-I 2:00 P.M. on the Settlement
Date
J-K 4:45 P.M. on the Settlement
Date
L-M 5:00 P.M. on the Settlement
Date
If a sale is to be settled more than one
Business Day after the sale, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable, but not
later than 11:00 A.M., 12:00 Noon and
2:00 P.M., respectively, on the first
<PAGE>
Business Day after the acceptance date.
Settlement Procedures "J" and "L" are subject
to extension in accordance with any extension
of Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If a sale is to be settled on a date after
the fifth Business Day next succeeding the
date of acceptance, Settlement Procedures "A"
through "C" shall be completed no later than
the fifth Business Day immediately preceding
the Settlement Date.
If settlement of a Book-Entry Bond is
rescheduled or cancelled, the Company will
instruct State Street to deliver to DTC a
cancellation message to such effect by no
later than 12:00 Noon on the Business Day
immediately preceding the scheduled
Settlement Date and State Street will enter
such order by 2:00 P.M. through DTC's
Participation Terminal System.
Failure to If after entry of a deliver order under
Settle: Settlement Procedure "H" or "I", a trade does
not settle, State Street may deliver to DTC,
through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message
instructing DTC to debit such Bond to State
Street's participant account, provided that
State Street's participant account contains a
principal amount of the Global Security
representing such Bond that is at least equal
to the principal amount to be debited. If a
withdrawal message is processed with respect
to all the Book-Entry Bonds represented by a
Global Security, State Street will mark such
Global Security "cancelled", make appropriate
entries in State Street's records and send
such cancelled Global Security to the
Company. The CUSIP number assigned to such
Global Security shall be cancelled and not
immediately reassigned. If a withdrawal
message is processed with respect to one or
<PAGE>
more, but not all, of the Book-Entry Bonds
represented by a Global Security, State
Street will exchange such Global Security for
another Global Security, which shall
represent the Book-Entry Bonds previously
represented by the surrendered Global
Security with respect to which a withdrawal
message has not been processed and shall bear
the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Bond
is not timely paid to the Participant with
respect to such Bond by the beneficial
purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf
or such purchaser), such Participant and, in
turn, the Agent for such Bond may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "I" and
"H", respectively. Thereafter, State Street
will deliver the withdrawal message and take
the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-
Entry Bond, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. In the event of a failure to
settle with respect to one or more, but not
all, of the Book-Entry Bonds to have been
represented by a Global Security, State
Street will provide, in accordance with
Settlement Procedure "F", for the
certification and issuance of a Global
Security representing the other Book-Entry
Bonds to have been represented by such Global
Security and will make appropriate entries in
its records.
<PAGE>
Suspension of Subject to its representations, warranties
Solicitation; and covenants contained in the Distribution
Amendment or Agreement, the Company may instruct the Agent
Supplement: to suspend solicitation of purchases at any
time. Upon receipt of such instructions the
Agent will forthwith suspend solicitation of
purchases from the Company until such time as
the Company has advised them that
solicitation of purchases may be resumed. If
the Company decides to amend or supplement
the Registration Statement or the Prospectus
relating to the Bonds (other than by the
filing of an amendment or supplement relating
solely to the terms of an issue of Bonds, a
change in the principal amount of Bonds
remaining to be sold, or similar changes) it
will promptly advise the Agent and State
Street and will furnish counsel to the Agent
with copies of the proposed amendment or
supplement, other than a current report on
Form 8-K.
In the event that at the time the
solicitation of purchases from the Company is
suspended there shall be any offers
outstanding which have not been settled, the
Company will promptly advise the Agent and
State Street whether such offers may be
settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as
in effect at the time of the suspension may
be delivered in connection with the
settlement of such offers. The Company will
have the sole responsibility for such
decision and for any arrangements which may
be made in the event that the Company
determines that such offers may not be
settled or that copies of such Prospectus may
not be so delivered.
Preparation of If any offer to purchase a Bond is accepted
Pricing Supplement: by or on behalf of the Company, the Company,
with the approval of the Agent, will prepare
a pricing supplement (a Pricing Supplement)
reflecting the terms of such Bond and will
arrange to file the Pricing Supplement with
<PAGE>
the Securities and Exchange Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will supply at
least 10 copies thereof (or additional copies
if requested) to the Agent. The Agent will
cause a Prospectus and the appropriate
Pricing Supplement to accompany or precede
each written confirmation of a sale sent to
each purchaser or his agent.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other
that those retained for files) will be
destroyed.
State Street not Nothing herein shall be deemed to require
to risk own funds: State Street to risk its own funds in
connection with any payment to the Company,
or the Agent, or the purchaser, it being
understood by all parties that payments made
by State Street to either the Company, the
Agent or the purchaser shall be made only to
the extent that funds are provided to State
Street for such purpose.
Duties of State Street, in its capacity as trustee and
State Street: otherwise, undertakes to perform such duties
and only such duties as are specifically set
forth in these Administrative Procedures and
in the Indenture, as they may from time to
time be supplemented, and no implied
covenants or obligations shall be read into
these Administrative Procedures against it.
Nothing herein shall diminish any right or
immunity that State Street shall have in its
capacity as trustee under the Indenture.
Advertising Cost: The Company will determine and approve, with
the Agent, the amount of advertising, if any,
that is appropriate in offering the Bonds.
Any advertising expenses which are approved
by the Company will be paid by the Company.
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED BONDS
Date of Issuance: Each Bond will initially be dated
and issued as of the date of its
certification by State Street.
Registration: Bonds will be issued only in fully
registered form.
Denominations: Bonds will be issued in principal
amounts of $1,000 or any integral
multiple thereof.
Interest: Each Bond will bear interest from
its original issue date, at the
annual rate stated on the face
thereof, payable on and
of each year (the
Interest Payment Dates) and at
maturity or, upon earlier
redemption, the date of redemption.
Each payment of interest shall
include interest accrued to but
excluding the Interest Payment Date.
Calculation of Interest: Interest (including payments for
partial periods) will be calculated
on the basis of a 360-day year of
twelve 30-day months. Interest will
not accrue on the 31st day of any
month.
Payments of Interest: Interest will be payable to the
person in whose name the Bond is
registered at the close of business
on or
(the Record Dates) next preceding
the Interest Payment Date; provided,
however, that interest payable on a
maturity date or a redemption date
will be payable to the person to
whom principal shall be payable.
State Street, as paying agent, will
be responsible for withholding taxes
on interest paid as required by law.
<PAGE>
The first payment of interest on any
Bond originally issued between a
Record Date and an Interest Payment
Date will be made on the Interest
Payment Date following the next
succeeding Record Date.
Payment at Maturity and Upon presentation of each Bond at
Redemption: maturity or upon maturity or upon
redemption, State Street will pay
the principal amount thereof,
together with accrued interest due
at maturity or the date of such
redemption, as the case may be.
Such payment shall be made in
immediately available funds,
provided that the Bond is presented
to State Street in time for State
Street to make payments in such
funds in accordance with its normal
procedures. The Company will
provide State Street with funds
available for immediate use for such
purpose. Bonds presented at
maturity or upon redemption will be
cancelled by State Street as
provided in the Indenture.
Rate Setting and Posting: The Company and the Agent will
discuss from time to time the
aggregate principal amount of, the
issuance price of, and the interest
rates to be borne by, Bonds that may
be sold as a result of the
solicitation of offers by the
Agents. If the Company decides to
set prices of, and rates borne by,
any Bonds in respect of which the
Agent is to solicit offers (the
setting of such prices and rates to
be referred to herein as "posting")
or if the Company decides to change
prices or rates previously posted,
it will promptly advise the Agent of
the prices and rates to be posted.
<PAGE>
The Bonds will be sold at a price,
exclusive of accrued interest, which
will be not less than 95% nor more
than 100% of the principal amount
and at an interest rate which will
be a multiple of 1/8 of 1%. Any
discount will not be greater than
1/4 of 1% for each year to maturity.
Acceptance and The Company shall have the sole
Rejection of Offers: right to accept offers to purchase
Bonds from the Company and may
reject any such offer in whole or in
part. The Agent shall communicate
to the Company, orally or in
writing, each reasonable offer to
purchase Bonds from the Company
received by it, other than those
rejected by such Agent. The Agent
shall have the right, in its
discretion reasonably exercised, to
reject any order in whole or in
part.
Settlement: The receipt of immediately available
funds by the Company in payment for
a Bond and the certification and
issuance of such Bond shall, with
respect to such Bond, constitute
settlement. The date of such
settlement is herein referred to as
the Settlement Date. All offers
accepted by the Company will be
settled on the fifth business day
next succeeding the date of
acceptance unless otherwise agreed
by the purchaser and the Company.
The Settlement Date shall be
specified upon acceptance of an
offer.
Settlement Procedures: In the event of a purchase of Bonds
by the Agent, as principal,
appropriate settlement details will
be set forth in the applicable Terms
<PAGE>
Agreement to be entered into between
the Agent and the Company
pursuant to the Distribution
Agreement.
Settlement Procedures with regard to
each Bond sold by the Agent, as
agent, shall be as follows:
A. The Agent will advise the
Company of the following
settlement information:
1. Principal Amount.
2. Exact name in which the
Bonds are to be registered
(Registered Owner).
3. Exact address of the
Registered Owner and
address for payment of
principal and interest.
4. Taxpayer identification
number of the Registered
Owner (if available).
5. Principal amount of each
Bond to be delivered to
the Registered Owner.
6. Price of the Bonds.
7. Original Issue Discount,
if any.
8. Maturity Date.
9. Interest Rate.
10. Redemption Provisions.
11. Agent's Commission.
12. Settlement Date.
<PAGE>
B. The Company shall telecopy
(promptly followed by the
original) to State Street the
certificate as to form relating
to the Bonds. As soon as
practicable thereafter, the
Company will provide State
Street with any additional
information set forth above.
C. The Company will prepare the
Bonds in the form set forth in
the Indenture, with specific
terms as pre-approved by the
Company, the Agent, and State
Street.
D. The Company will cause State
Street to issue, certify, and
deliver Bonds.
E. State Street will deliver the
Bonds in accordance with the
Company's instructions provided
in the settlement information
(with confirmation) to the
Agent against written evidence
of receipt by the Agent.
F. The Agent will deliver the
Bonds (with confirmation) to
the purchaser against payment
in immediately available funds.
G. The Agent will deposit, in
funds available for immediate
use, an amount equal to the
price of the Bond, less the
applicable commission, received
under Settlement Procedure "F",
into the Company's account at
Bank of Boston, Boston,
Massachusetts.
H. The Agent will obtain a written
acknowledgement of receipt of
the Bonds by the purchaser.
<PAGE>
I. Upon written request by the
Company, State Street will send
to the Company a statement
setting forth the principal
amount of the Bonds outstanding
as of that date, after giving
effect to such transaction and
all other orders of which the
Company has advised State
Street but which have not yet
been settled.
Settlement Procedures For offers accepted by the Company,
Timetable: Settlement Procedures "A" through
"I" set forth above shall be
completed on or before the
respective times set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on
the first
Business Day
after the
acceptance date.
B 3:00 P.M. on the
first Business
Day after the
acceptance date.
C-E 11:00 A.M. on
the Settlement
Date.
F-I 4:00 P.M. on the
Settlement Date.
If a sale is to be settled on a date
after the fifth Business Day next
succeeding the date of acceptance,
Settlement Procedures "A" through
"B" shall be completed no later than
the fifth Business Day immediately
preceding the settlement date.
<PAGE>
Failure to Settle: In the event that a purchaser of a
Bond from the Company shall fail to
accept delivery of a Bond on the
Settlement Date, the Agent will
forthwith notify State Street and
the Company by telephone, confirmed
in writing, of such failure, and
return the Bond to State Street.
Upon receipt by State Street of the
Bond from the Agent, State Street
will immediately advise the Company
of such receipt and the Company will
promptly arrange to credit the
account of the Agent in an amount of
immediately available funds equal to
the amount previously paid by the
Agent in respect of the Bond. Such
debits and credits will be made on
the Settlement Date, if possible,
and in any event not later than the
business day following the
Settlement Date.
Upon receipt of the Bond in respect
of which the default occurred, State
Street will cancel the Bond in
accordance with the Indenture.
Use of Funds: If after payment for a Bond having
been made by the Agent to the
Company's account, a failure occurs
for any reason other than default by
the Agent in the performance of its
obligations hereunder or under the
Distribution Agreement, the Company
will reimburse the Agent on an
equitable basis for its loss of the
use of the funds during the period
when the funds were credited to the
account of the Company. If the
Agent fails to perform its
obligations hereunder or under the
Distribution Agreement, which
results in the Company's loss of the
use of funds, including, without
<PAGE>
limitation, failure to credit to the
Company's account the appropriate
amount of the payment of a Bond in
funds available for immediate use in
accordance with the above specified
timetable, the Agent will reimburse
the Company on an equitable basis
for its loss of the use of the funds
resulting from such default by the
Agent.
Suspension of Subject to its representations,
Solicitation; warranties and covenants contained
Amendment or in the Distribution Agreement, the
Supplement: Company may instruct the Agent to
suspend solicitation of purchases at
any time. Upon receipt of such
instructions the Agent will
forthwith suspend solicitation of
purchases from the Company until
such time as the Company has advised
them that solicitation of purchases
may be resumed. If the Company
decides to amend or supplement the
Registration Statement or the
Prospectus relating to the Bonds
(other than by the filing of an
amendment or supplement relating
solely to the terms of an issue of
Bonds, a change in the principal
amount of Bonds remaining to be
sold, or similar changes), it will
promptly advise the Agent and State
Street and will furnish counsel to
the Agent with copies of the
proposed amendment or supplement,
other than a Current Report on Form
8-K.
In the event that at the time the
solicitation of purchases from the
Company is suspended there shall be
any offers outstanding which have
not been settled, the Company will
promptly advise the Agent and State
<PAGE>
Street whether such offers may be
settled and whether copies of the
Prospectus as theretofore amended
and/or supplemented as in effect at
the time of the suspension may be
delivered in connection with the
settlement of such offers. The
Company will have the sole
responsibility for such decision and
for any arrangements which may be
made in the event that the Company
determines that such offers may not
be settled or that copies of such
Prospectus may not be so delivered.
Preparation of If any offer to purchase a Bond is
Pricing Supplement; accepted by or on behalf of the
Delivery of Company, the Company, with the
Prospectus: approval of the Agent, will prepare
a pricing supplement (a Pricing
Supplement) reflecting the terms of
such Bond and will arrange to file
the Pricing Supplement with the
Securities and Exchange Commission
in accordance with the applicable
paragraph of Rule 424(b) under the
Act and will supply at least 10
copies thereof (or additional copies
if requested) to the Presenting
Agent. The Agent will cause a
Prospectus and the appropriate
Pricing Supplement to accompany or
precede (a) each written
confirmation of a sale sent to a
purchaser or his agent and (b) each
Bond delivered to a customer or his
agent.
In each instance that a Pricing
Supplement is prepared, the Agent
will affix the Pricing Supplement to
Prospectuses prior to their use.
Outdated Pricing Supplements (other
than those retained for files) will
be destroyed.
<PAGE>
State Street not to Nothing herein shall be deemed to
risk own funds: require State Street to risk its own
funds in connection with any payment
to the Company, or the Agent, or the
purchaser, it being understood by
all parties that payments made by
State Street to either the Company,
the Agent or the purchaser shall be
made only to the extent that funds
are provided to State Street for
such purpose.
Duties of State Street: State Street, in its capacity as
trustee and otherwise, undertakes to
perform such duties and only such
duties as are specifically set forth
in these Administrative Procedures
and in the Indenture, as they may
from time to time be supplemented,
and no implied covenants or
obligations shall be read into these
Administrative Procedures against
it. Nothing herein shall diminish
any right or immunity that State
Street shall have in its capacity as
trustee under the Indenture.
Advertising Cost: The Company will determine and
approve, with the Agent, the amount
of advertising, if any, that is
appropriate in offering the Bonds.
Any advertising expenses which are
approved by the Company will be paid
by the Company.
<PAGE>
Exhibit 4-C
to Form S-3
- -----------------------------------------------------------------
- -----------------------------------------------------------------
MASSACHUSETTS ELECTRIC COMPANY
(FORMERLY WORCESTER COUNTY ELECTRIC COMPANY)
TO
STATE STREET BANK AND TRUST COMPANY
(FORMERLY SECOND BANK-STATE STREET TRUST COMPANY
SUCCESSOR TO
THE SECOND NATIONAL BANK OF BOSTON)
TRUSTEE
---------------
SUPPLEMENTAL INDENTURE
Dated as of
---------------
Supplementing
FIRST MORTGAGE INDENTURE
and
DEED OF TRUST
To The Second National Bank of Boston, Trustee
Dated as of July 1, 1949
---------------
To Secure First Mortgage Bonds
---------------
ISSUE
First Mortgage Bonds - Series
- -----------------------------------------------------------------
- -----------------------------------------------------------------
<PAGE>
MASSACHUSETTS ELECTRIC COMPANY
SUPPLEMENTAL INDENTURE
Dated as of
---------------
TABLE OF CONTENTS
(Not part of the Indenture)
Page
CAPTIONS AND RECITALS. . . . . . . . . . . . . . . . . . . . . .1
Form of Series Bond [Face] . . . . . . . . . . . . .3
Form of Trustee's Certificate. . . . . . . . . . . . . .6
Form of Series Bond [Reverse]. . . . . . . . . . . .7
GRANTING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . 10
Recital of Consideration.. . . . . . . . . . . . . . . 10
Grant. . . . . . . . . . . . . . . . . . . . . . . . . 11
Reservations and Exceptions. . . . . . . . . . . . . . 11
Habendum . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Declaration. . . . . . . . . . . . . . . . . . . 12
ARTICLE 1. Covenants Regarding the Trust Estate. . . . . . . . 12
1.01 Covenant against encumbrances. . . . . . . . . . 12
1.02 Covenant of seisin; warranty . . . . . . . . . . 13
ARTICLE 2. Particular Provisions Concerning the Series Bonds13
2.01 Issue of Series Bonds. . . . . . . . . . . . 13
2.02 Form of Bond . . . . . . . . . . . . . . . . . . 14
2.03 Dating and Interest Payments . . . . . . . . . . 14
2.04 Limitations on amount. . . . . . . . . . . . . . 17
2.05 Execution. . . . . . . . . . . . . . . . . . . . 17
2.06 Transfer and exchange, etc.. . . . . . . . . . . 17
2.07 Redemption . . . . . . . . . . . . . . . . . . . 18
2.08 Replacement Fund and "net earnings" definition . 19
2.09 Covenant with respect to section 13.03 of
Original Indenture. . . . . . . . . . . . . . 19
ARTICLE 3. Amendment to the Indenture. . . . . . . . . . . . . 20
3.01 Section 3.03 of the Original Indenture . . . . . 20
3.02 Section 3.04 of the Original Indenture . . . . . 20
3.03 Section 3.04 of the Original Indenture . . . . . 21
<PAGE>
Page
ARTICLE 4. Concerning the Trustee; Defeasance;
Miscellaneous Provisions. . . . . . . . . . . 21
4.01 Concerning the Trustee . . . . . . . . . . . . . 21
4.02 Defeasance . . . . . . . . . . . . . . . . . . . 22
4.03 Supplemental to Original Indenture . . . . . . . 22
4.04 No default under Original Indenture;
corporate authority . . . . . . . . . . . . . 22
4.05 For benefit of parties and Bondholders only. . . 22
4.06 Approval by Trustee of Bond form . . . . . . . . 22
4.07 Date of Supplemental Indenture . . . . . . . . . 22
4.08 Counterparts . . . . . . . . . . . . . . . . . . 23
4.09 Cover, headings, etc.. . . . . . . . . . . . . . 23
TESTIMONIUM AND EXECUTION. . . . . . . . . . . . . . . . . . . 24
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE OF VOTES . . . . . . . . . . . . . . . . . . . . . 34
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of
, between MASSACHUSETTS ELECTRIC COMPANY (formerly Worcester
County Electric Company and hereinafter generally called the
Company), a corporation duly organized and existing under the laws
of The Commonwealth of Massachusetts, having its principal place of
business and mailing address at 25 Research Drive, Westborough,
Massachusetts, and STATE STREET BANK AND TRUST COMPANY (formerly
Second Bank-State Street Trust Company, successor to The Second
National Bank of Boston, and hereinafter generally called the
Trustee), a corporation duly organized and existing under the laws
of The Commonwealth of Massachusetts, having its principal place of
business and address at 225 Franklin Street, Boston, Massachusetts,
and duly authorized to execute the trusts hereof.
WHEREAS the Company has heretofore executed and delivered to
State Street Bank and Trust Company, and its predecessors, as
Trustee, its First Mortgage Indenture and Deed of Trust, dated as
of July 1, 1949, and recorded, among other places, with Worcester
District Deeds, of Worcester County, Massachusetts, Book 3201, Page
1 and Worcester Registry District of the Land Court as Document
#12516 (hereinafter singly generally called the Original Indenture,
and with this and all other indentures supplemental thereto
collectively called the Indenture), whereby the Company has given,
granted, bargained, sold, warranted, pledged, assigned,
transferred, mortgaged, and conveyed to the Trustee all and
singular the property therein described, whether then owned or
thereafter acquired, to secure its First Mortgage Bonds
(hereinafter generally called the Bonds) of an unlimited (except as
therein provided) permitted aggregate principal amount, to be
issued in one or more series as provided in the Original Indenture;
and
WHEREAS the Original Indenture has heretofore been supplemented
and amended by Supplemental Indentures, viz.:
Supplemental Indenture Dated as of
---------------------- -----------
First Supplemental Indenture March 1, 1951
Second Supplemental Indenture May 1, 1952
Third Supplemental Indenture October 1, 1955
Fourth Supplemental Indenture December 1, 1959
Fifth Supplemental Indenture July 1, 1961
Sixth Supplemental Indenture September 1, 1962
Seventh Supplemental Indenture December 1, 1963
Eighth Supplemental Indenture March 1, 1966
Ninth Supplemental Indenture April 1, 1968
Tenth Supplemental Indenture May 1, 1969
Eleventh Supplemental Indenture October 1, 1970
Twelfth Supplemental Indenture October 1, 1972
Thirteenth Supplemental Indenture October 1, 1975
Fourteenth Supplemental Indenture October 1, 1982
<PAGE>
Fifteenth Supplemental Indenture June 1, 1986
Sixteenth Supplemental Indenture December 1, 1988
Seventeenth Supplemental Indenture July 1, 1989
Eighteenth Supplemental Indenture March 1, 1992
Nineteenth Supplemental Indenture January 1, 1993
Twentieth Supplemental Indenture September 1, 1993
(hereinafter referred to as the Prior Supplemental Indentures)
whereby the Company has given, granted, bargained, sold, warranted,
pledged, assigned, transferred, mortgaged, and conveyed to the
Trustee all and singular the property therein specified, whether
owned at the time of the execution or thereafter acquired by the
Company, to secure its Bonds issued or to be issued in one or more
series as provided in the Original Indenture; and
WHEREAS the Company has heretofore issued under the Indenture
and had outstanding as of , the following aggregate
principal amount of First Mortgage Bonds:
Series Percent Due Amount
------ ------- --- ------
R various various$
S various various$
T various various$
U various various$
(hereinafter referred to as the Outstanding Bonds); and
WHEREAS the Company proposes to issue under the Indenture an
additional series of Bonds, to be designated First Mortgage Bonds,
Series (hereinafter generally called Series Bonds or Bonds
of Series ); and
WHEREAS sections 4.07 and 4.17 of the Original Indenture
provide that the Company will from time to time give further
assurances to the Trustee, and will from time to time subject to
the lien of the Indenture all after-acquired property included or
intended to be included in the trust estate, and section 12.01 of
the Original Indenture provides that the Company and the Trustee
may from time to time enter into indentures supplemental to the
Original Indenture for certain purposes as therein specifically set
forth, among other things to provide for the issue of Bonds of a
series other than Series A and the forms and provisions of such
other series pursuant to the provisions of section 2.02 of the
Original Indenture; and to add to the covenants and agreements of
the Company such further covenants and agreements as the board of
directors of the Company shall consider to be for the protection of
the holders of the Bonds outstanding under the Indenture and for
the protection of the trust estate; and
<PAGE>
WHEREAS section 3.04 of the Original Indenture makes provision
for the application by the Company, upon compliance with the
applicable provisions of the Indenture, for the certification and
delivery of additional Bonds against the retirement of Bonds
bearing a higher interest rate, which have not been bona fide sold,
pledged or otherwise negotiated by the Company, and whereas the
parties hereto desire to amend the Indenture in order to add
provisions, not inconsistent with the security and protection
intended for the protection of the Bondholders, to clarify such
provisions and to better provide for the certification and delivery
of additional Bonds based upon the retirement of Unissued Bonds;
and
WHEREAS the Company has determined to execute and the Trustee,
at the request of the Company, has further determined to join in
this Supplemental Indenture to make certain changes in the
Indenture which shall not relieve the Company or the Trustee of any
obligation which it would otherwise have to any holder, or in any
manner impair the rights and remedies of any holder, of any of the
Outstanding Bonds; and
WHEREAS the Company desires to issue from time to time an
unlimited aggregate principal amount of Series Bonds; and
currently, the Company has approval, to the extent required by law,
from the Massachusetts Department of Public Utilities to issue from
time to time $100,000,000 aggregate principal amount of Series
Bonds and execute and deliver this Supplemental
Indenture; and all things necessary to make such issues of Series
Bonds, in aggregate principal amount not in excess of
$100,000,000, when executed by the Company and certified by the
Trustee and delivered as herein and in the Original Indenture
provided, the legal, valid, and binding obligations of the Company
according to their tenor, and to make this
Supplemental Indenture a legal, valid, and binding instrument
supplemental to the Original Indenture, have in all respects been
duly authorized; and
WHEREAS the Series Bonds and the Trustee's certificate and
the form of endorsement thereon are to be in substantially the
following form:
[Form of Series Bond]
[Face]
[IF APPLICABLE, INSERT - Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate
<PAGE>
issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository
Trust Company and any payments are made to Cede & Co., any
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede
& Co., has an interest herein.]
NUMBER REGISTERED
$
CUSIP
MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, Series
%, Due
Original Issue Date:
MASSACHUSETTS ELECTRIC COMPANY, a Massachusetts corporation
(hereinafter, with its successors and assigns as defined in the
Indenture mentioned below, generally called the Company), for value
received, hereby promises to pay to or
registered assigns, on , (or earlier as hereinafter
referred to) the principal sum of _______________________ DOLLARS
($ ) in lawful money of the United States of America, at
the corporate trust office in Boston, Massachusetts, of State
Street Bank and Trust Company (hereinafter with its successors
generally called the Trustee) or at the corporate trust office of
its successor in the trusts created by the Indenture mentioned
below, and in such other places, if any, as may be authorized for
the purpose, and to pay interest thereon, in like lawful money,
from the original issue date specified above, if the date hereof is
prior to ____________, ____, or, if thereafter, from the first day
of May or November, as the case may be, next preceding the date
hereof to which interest has been paid or duly provided for (or
from the date hereof if such date be either of said days and
interest has been paid or duly provided for to such date), at the
rate per annum specified below the title of this Bond, at said
office of the Trustee, semiannually, on May 1 and November 1 of
each year until payment of the principal hereof. Interest so
payable, and punctually paid or duly provided for, on the first day
of May or November will be paid to the person in whose name this
Bond (or one or more Predecessor Bonds, as defined in said
Indenture) is registered at the close of business on April 15 or
October 15 (whether or not a business day) next preceding such
first day of May or November. However, any such interest
installment that is not punctually paid or duly provided for shall
<PAGE>
forthwith cease to be payable to the registered owner on such April
15 or October 15, as the case may be, and may be paid to the person
in whose name this Bond (or one or more Predecessor Bonds) is
registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Bondholders not less than fifteen
days prior to such special record date, or may be paid, at any time
and without prior notice to Bondholders, to the person in whose
name this Bond is registered at the close of business on the day
next preceding the date of such payment, or may be paid at any time
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Series Bonds may at the
time be listed and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Interest
payable at maturity or upon earlier redemption will be payable to
the person to whom the principal will be payable. At the option of
the Company, interest may be paid by check payable to the order of
and mailed to the address of the person entitled thereto as the
name and address of such person shall appear on registration books
maintained pursuant to said Indenture.
Interest (including payments for partial periods) will be
calculated on the basis of a 360-day year of twelve 30-day months.
Interest will not accrue on the 31st day of any month.
The provisions of this Bond are continued on the reverse hereof
and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate hereon shall have been signed by
the Trustee.
<PAGE>
IN WITNESS WHEREOF, Massachusetts Electric Company has caused
this Bond to be executed, either manually or by facsimile, under
its corporate seal by its officers thereunto duly authorized.
Dated:
MASSACHUSETTS ELECTRIC COMPANY
By And By
President Treasurer
TRUSTEE'S CERTIFICATE
This is one of the First Mortgage Bonds - Series referred
to in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
As Trustee,
By
Authorized Signature
<PAGE>
[Form of Series Bond]
[Reverse]
MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, Series
%, Due
Original Issue Date:
This Bond is one of a duly authorized issue of First Mortgage
Bonds of the Company, issued or to be issued in one or more series,
the series, of which this Bond is one, being designated First
Mortgage Bonds, Series , and all of said Bonds of all series and
forms being issued or to be issued under and secured by a certain
First Mortgage Indenture and Deed of Trust (herein, with all
indentures stated to be supplemental thereto to which the Trustee
shall be a party, including a Supplemental
Indenture dated as of , generally called the
Indenture), to which Indenture, an executed counterpart of which is
on file with the Trustee, reference is hereby made for a
description of the property mortgaged and pledged to the Trustee as
security for said Bonds, and for a statement of the nature and
extent of the security, the terms and conditions upon which said
Bonds are or are to be issued and secured, the rights and remedies
under the Indenture of the holders of all of said Bonds, and the
rights and obligations under the Indenture of the Company and of
the Trustee; but neither the foregoing reference to the Indenture,
nor any provision of this Bond or of the Indenture, shall affect or
impair the obligation of the Company, which is absolute,
unconditional, and unalterable, to pay, at the stated or
accelerated maturities herein provided, the principal of and
premium, if any, and interest on this Bond as herein provided.
In certain events, on the conditions, in the manner, to the
extent, and with the effect set forth in the Indenture,
(1) the principal of this Bond may be declared and/or may
become due and payable before the stated maturity hereof,
together with the interest accrued hereon;
(2) the Company and the Trustee may make modifications or
alterations of the provisions of the Indenture and of this Bond
with the consent of the holders of the percent of the principal
amount of the Bonds at the time outstanding provided in the
Indenture; provided, however, that no such alteration or
modification shall (a) impair the obligation of the Company
<PAGE>
in respect of the principal of or premium or interest on any
Bond, or extend the maturity or reduce the rate or extend the
time of payment of interest thereon, or modify the terms of
payment of such principal or interest without the consent of
the holder thereof, (b) permit the creation of any lien prior
to or on a parity with the lien of the Indenture except as
expressly authorized by the Indenture, or (c) reduce the
percentage of the principal amount of Bonds with the consent of
the holders of which modifications or alterations may be made
as aforesaid;
(3) the holders of the percent of the principal amount of
the Bonds at the time outstanding provided in the Indenture,
may waive any existing default under the Indenture and the
consequences of any such default, except a default in the
payment of the principal of, premium, if any, or interest on
any of the Bonds, and except a default arising from the
creation of any lien prior to or on a parity with the lien of
the Indenture; [IF APPLICABLE, INSERT - and]
(4) upon payment of charges and compliance with other
conditions as provided in the Indenture, the Series Bonds
[IF APPLICABLE, INSERT - not drawn for redemption] are
interchangeable, at the principal office of the Trustee and at
such other offices or agencies of the Trustee or of the Company
as may be designated for the purpose, for like aggregate
principal amounts of Bonds of the same series and original
issue date with identical terms and provisions, in
denominations of $1,000 or any integral multiples thereof
(provided, however, the Company shall not be required to make
transfers or exchanges during the 15 days preceding any
interest payment date [IF APPLICABLE, INSERT - and during any
reasonable period which may be necessary in connection with the
selection by lot of Bonds to be redeemed]); and, except as
aforesaid, this Bond [IF APPLICABLE, INSERT - , if not drawn
for redemption,] is transferable on books to be kept by the
Company at said office of the Trustee and at such other offices
or agencies, upon surrender and cancellation hereof at any such
office or agency, duly endorsed or accompanied by a duly
executed instrument of transfer, and thereupon a new Bond or
Bonds of the same series and original issue date with identical
terms and provisions, for a like aggregate principal amount
will be issued to the transferee or transferees in exchange for
this Bond [IF APPLICABLE INSERT -; and
(5) this Bond singly or together with all or less than all
other Bonds of the same series, original issue date, and
identical terms and provisions, or, if this Bond is for a
principal amount exceeding $1,000, any part of the principal
<PAGE>
amount hereof constituting $1,000 or any integral multiple
thereof, may be called for redemption at any time prior to
maturity, whether or not on an interest payment date, upon
prior notice given by a mailing thereof to the respective
registered owners of such Bonds not less than thirty days prior
to the redemption date [IF APPLICABLE, INSERT - (a) if at the
option of the Company or through the application of moneys
deposited with the Trustee as the basis for the issuance of
Bonds, at the respective general redemption prices, stated as
percentages of the called principal amount, set forth in Column
A below [IF APPLICABLE, INSERT - provided, however, that
neither this Bond nor any portion hereof shall be so redeemed
prior to , , if such redemption is for the
purpose or in anticipation of refunding such Bond, or any
portion hereof, through the use, directly or indirectly, of
funds borrowed by the Company at an effective interest cost to
the Company (computed in accordance with generally accepted
financial practice) of less than % per annum,] and (b) if]
through the application of replacement fund, release,
insurance, eminent domain, or other moneys held by the Trustee,
at the respective special redemption prices, stated as
percentages of the called principal amount, set forth [IF
APPLICABLE, INSERT - in Column B] below:
IF REDEEMED AT
ANY TIME IN THE
RESPECTIVE [COLUMN A] [COLUMN B]
TWELVE MONTHS'
PERIOD BEGINNING
GENERAL SPECIAL
IN EACH OF THE REDEMPTION REDEMPTION
FOLLOWING YEARS PRICES PRICES
--------------- ---------- ---------------
[Table to be completed as provided in the certificate as to
form.]
together in each case with accrued and unpaid interest to the
date fixed for redemption [IF APPLICABLE, INSERT -, provided,
however, that neither this Bond nor any portion hereof shall be
so redeemed prior to , ]. If this Bond is called
in whole or in part, and if provision has been duly made for
notice of such call and for payment as required in the
Indenture, thereafter this Bond, or such called part of the
principal amount hereof, shall cease to be secured by the lien
of the Indenture, no interest shall accrue on this Bond or such
called part hereof on and after the date fixed for redemption,
<PAGE>
and the Company after said date fixed for redemption shall be
under no further liability in respect of the principal of or
premium, if any, or interest on this Bond or such called part
hereof (except as expressly provided in the Indenture); and if
less than the whole principal amount hereof shall be so called,
the registered owner hereof shall be entitled, in addition to
the sums payable on account of the part called, to receive,
without expense to such owner, on surrender of this Bond duly
endorsed or accompanied by a duly executed instrument of
transfer, one or more Series Bonds of the same series and
original issue date with identical terms and provisions, for an
aggregate principal amount equal to that part of the principal
amount hereof not then called and paid].
Payment of the principal of and/or premium, if any, on this
Bond to the registered owner (or his registered assigns) hereof and
payment of the interest on this Bond as hereinabove provided shall
be a discharge of the Company, the Trustee, and any paying agent in
respect of such principal, premium, and/or interest, as the case
may be.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Bond against any incorporator,
stockholder, director, officer, employee, or agent, past, present,
or future, as such, of the Company or of any predecessor or
successor corporation, either directly or through the Company or
any such predecessor or successor corporation, under any rule of
law, statute, or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
stockholders, directors, officers, employees, and agents being
waived and released.
[End of Form of Bond]
NOW, THEREFORE, this Supplemental Indenture
witnesseth that, pursuant to and in execution of the powers,
authorities, and obligations conferred, imposed, and reserved in
the Original Indenture, and every other power, authority, and
obligation thereto appertaining and/or enabling, and in
consideration of the premises, of the sum of $10 duly paid to the
Company by the Trustee, and of other good and valuable
considerations, receipt whereof upon the delivery of this
Supplemental Indenture the Company hereby acknowledges, and
for the purpose of confirming the Original Indenture as heretofore
supplemented, and as an indenture hereby expressly stated to be
supplemental to the Original Indenture, and in order to secure the
equal pro rata payment (except as in the Indenture otherwise
provided) of both the principal of and the interest on all of the
Bonds at any time certified, issued, and outstanding under the
<PAGE>
Indenture according to their tenor and the provisions of the
Indenture, and to secure the faithful performance and observance of
all the covenants, obligations, conditions, and provisions
contained in the Bonds and in the Indenture, and in order to
provide for the forms, provisions, and issue of the Series
Bonds;
THE COMPANY HEREBY gives, grants, bargains, sells, warrants,
pledges, assigns, transfers, mortgages, and conveys unto the
Trustee, and its successors in the trusts of the Indenture, and its
and their assigns, all and singular the property and rights and
interests in property included in the trust estate and given,
granted, bargained, sold, warranted, pledged, assigned,
transferred, mortgaged, and conveyed, by the Original Indenture and
the Prior Supplemental Indentures, or intended or required so to
be, whether then or now owned or thereafter or hereafter acquired,
except such properties or rights or interests in property as may
have been released by the Trustee or sold or disposed of in whole
or in part as permitted by the Original Indenture as heretofore
supplemented and amended, including, without limiting the
generality of the foregoing, the property and rights and interests
in property specifically described in Schedule A hereto;
SUBJECT, HOWEVER, in so far as affected thereby, to any
mortgages or other encumbrances or liens constituting permitted
liens as defined in the Original Indenture, the Prior Supplemental
Indentures, or herein, to the liens, encumbrances, reservations,
restrictions, limitations, covenants, interests, and exceptions, if
any, set forth or referred to in the descriptions of such property
contained in Schedules A thereto and hereto, none of which
substantially interferes with the free use and enjoyment by the
Company of the property and rights and interests in property
hereinbefore described for the general purposes and uses of the
Company's electric business;
AND SUBJECT FURTHER, as to all property of any character
acquired after the respective dates of the Original Indenture, the
Prior Supplemental Indentures, and this
Supplemental Indenture, in so far as affected thereby, to any
mortgages, encumbrances, or liens on such after-acquired property
existing at the time of such acquisition or contemporaneously
created, conforming to the provisions of section 4.16 of the
Original Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing
grant, pledge, assignment, transfer, mortgage, and conveyance, all
property and rights and interests in property of the character
specifically reserved and excepted from the grant, pledge,
assignment, transfer, mortgage, and conveyance of the Original
Indenture;
<PAGE>
TO HAVE AND TO HOLD the trust estate, with all of the
privileges and appurtenances thereunto belonging, unto the Trustee,
its successors in the trusts hereof, and its and their assigns, to
its and their own use, forever;
BUT IN TRUST NEVERTHELESS for the equal pro rata benefit,
security and protection (except as provided in sections 2.09 and
2.10 of the Original Indenture, and except in so far as a sinking,
improvement, or analogous fund or funds, established in accordance
with the provisions of the Original Indenture, may afford
particular security for Bonds of one or more series, and except for
independent security as provided in section 2.02 of the Original
Indenture) of the bearers and the registered owners of the Bonds
from time to time certified, issued, and outstanding under the
Indenture, and the bearers of the coupons appertaining thereto,
without (except as aforesaid) any preference, priority, or
distinction whatever of any one Bond over any other Bond by reason
of priority in the issue, sale, or negotiation thereof, or
otherwise;
PROVIDED, HOWEVER, and these presents are upon the condition,
that if the Company shall pay or cause to be paid the principal of
and premium, if any, and interest on the Bonds at the times and in
the manner therein and in the Indenture provided, and shall keep,
perform, and observe all and singular the covenants, agreements and
provisions in the Bonds and in the Indenture expressed to be kept,
performed, and observed by or on the part of the Company, then the
Indenture and the estate and rights thereby and hereby granted
shall, pursuant to the provisions of Article 15 of the Original
Indenture, cease, determine, and be void, but otherwise shall be
and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED, AND AGREED, upon the
trusts and for the purposes aforesaid, as set forth in the
following covenants, agreements, conditions, and provisions, viz.:
ARTICLE 1.
COVENANTS REGARDING THE TRUST ESTATE.
1.01. The Company covenants that the property specifically
described in the granting clauses hereof, including Schedule A
hereto, and now owned by the Company, is wholly free from and
unencumbered by any defect, mortgage, pledge, charge, or other
encumbrance or lien, of any kind, superior to or on a parity with
the lien of the Indenture, except only taxes for the current year
not yet due, and those liens, encumbrances, and defects, if any,
referred to in said granting clauses; and the Company will duly and
punctually remove, perform, pay, and discharge or, if it contests,
<PAGE>
will stay (and indemnify the Trustee from time to time to the
satisfaction of the Trustee against) the enforcement of all
obligations and claims arising or to arise out of or in connection
with each and all thereof.
The Company will not create or suffer any other mortgage,
pledge, charge, or material encumbrance or lien, of any kind,
superior to or on a parity with the lien of the Indenture, upon the
property included in the trust estate, or any part thereof, now
owned or hereafter acquired, except only such as are permitted by
the provisions of section 4.16 of the Original Indenture.
1.02. The Company covenants that it is lawfully seised in fee
simple of the real estate, and owns outright and is lawfully
possessed in its own right, absolutely, and unconditionally, of the
other property and rights constituting the trust estate, described
in the granting clauses hereof, including Schedule A hereto, and
now owned by the Company, and has good title to, and full power and
authority to give, grant, bargain, sell, warrant, pledge, assign,
transfer, mortgage, and convey the property, rights, and interests
hereby presently given, granted, bargained, sold, warranted,
pledged, assigned, transferred, mortgaged, and conveyed or
purported or intended so to be, all subject only to taxes for the
current year not yet due, and to those liens, encumbrances, and
defects, if any, referred to in said granting clauses; and the
Company will warrant and defend the title to the property from time
to time included in the trust estate, and every part thereof, to
the Trustee, against all claims and demands whatsoever of any
person and all persons claiming or to claim the same or any
interest therein, subject only as aforesaid, to permitted liens,
and to mortgages, encumbrances, and liens on after-acquired
property of the character permitted by section 4.16 of the Original
Indenture.
ARTICLE 2.
PARTICULAR PROVISIONS CONCERNING THE SERIES BONDS
In addition to the provisions of the Indenture applicable by
their terms, the following provisions relating to the form and
provisions of the Series Bonds are established as follows:
2.01. The Series Bonds shall be issued from time to time
upon delivery to the Trustee of a certificate as to form signed by
the president or the treasurer of the Company setting forth the
matters described below.
Each issue of the Series Bonds shall be designated in such
manner as to distinguish it from all other issues. Bonds of each
such issue shall be identical in tenor and effect. The
<PAGE>
certificates as to form shall designate, within such limits as may
be from time to time established by a directors' resolution, the
designation and amount of the issue, the date of maturity (which
date shall be not less than nine months nor more than thirty years
from the original issue date of such issue of Bonds), the interest
rate, the provisions for call and redemption, if any, including any
premium or premiums payable thereon.
2.02. The Series Bonds shall consist of fully registered
Bonds without coupons in denominations of $1,000 or any integral
multiple thereof authorized by a certificate as to form, with
distinguishing letters and/or numbers as may be determined by a
certificate as to form, and all as approved by the Trustee. The
permanent Series Bonds and Trustee's certificate shall be
substantially in the forms hereinbefore recited, with appropriate
insertions, omissions, and variations approved by the Trustee for
the different issues and denominations. The permanent Series
Bonds shall be lithographed on steel engraved tints (or, (i) if so
authorized by the certificate as to form, engraved either fully or
partially in such manner as to meet the listing requirements of any
securities exchange on which such Series Bonds may at the time
be listed or (ii) if so authorized by the certificate as to form,
printed, photocopied, or otherwise reproduced in such manner as to
meet the requirements of a depository with which the Series
Bonds may be placed).
The certificate as to form may also provide that ownership of
all of such Series Bonds shall be evidenced by one or more
certificates placed with a depository. If, after the initial
issuance of an issue of the Series Bonds which had been placed
with a depository, the depository is no longer willing or able to
hold such issue of the Series Bonds, the Company may determine
that ownership of such Series Bonds shall be evidenced in the
usual certificated form and shall advise the Trustee of its
determination. In such event, the Company shall take actions
necessary to withdraw such Series V Bonds from the depository and
shall prepare and execute and cause to be authenticated and
delivered replacement Series V Bonds, in certificate form, to the
beneficial owners thereof. No provision of the certificate as to
form with respect to matters referred to in this paragraph shall be
made applicable to the holder of a Bond or Bonds of Series the
original issue date of which is prior to the date of the
certificate as to form, except at the option of such holder.
2.03. Notwithstanding the provisions of the third paragraph of
section 2.01 of the Original Indenture, each Series Bond shall
be dated and bear interest as set forth in this section 2.03.
Each Series Bond shall be dated the date of its
certification and delivery.
<PAGE>
Interest will be payable from the interest payment date next
preceding the date thereof to which interest has been paid or duly
provided for, (i) unless the date thereof is an interest payment
date to which interest has been paid or duly provided for, in which
case the interest shall be payable from such date, or (ii) unless
the date thereof is prior to the first interest payment date for
that issue, in which case the interest shall be payable from the
original issue date of such issue of Series Bonds.
Interest (including payments for partial periods) will be
calculated on the basis of a 360-day year of twelve 30-day months.
Interest will not accrue on the 31st day of any month.
Except as hereinafter provided, the interest installment on any
Series Bond which is payable, and is punctually paid or duly
provided for, on any first day of May or November shall be paid to
the person in whose name that Bond (or one or more Predecessor
Bonds) is registered at the close of business on the relevant
regular record date, namely, April 15 or October 15 (whether or not
a business day) next preceding.
All Series Bonds with an original issue date which is after
the record date for a particular interest payment date shall bear
interest from such original issue date, but payment of interest
shall commence on the second interest payment date succeeding said
original issue date.
Any interest installment on any Series Bond which is
payable, but is not punctually paid or duly provided for (in whole
or in part), on any first day of May or November (herein called
Defaulted Interest) shall forthwith cease to be payable to the
registered owner on the relevant regular record date, and such
Defaulted Interest may be paid by the Company, at its election in
each case, in either of the ways provided in clause (i) or clause
(ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Series Bonds (or
their respective Predecessor Bonds) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Series Bond and the date
of the proposed payment which shall be not less than forty-five
days after the receipt by the Trustee of such notice of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest, or shall
make arrangements satisfactory to the Trustee for such deposit
<PAGE>
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall be not more than
fifteen days nor less than five days prior to the date of the
proposed payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first-class postage prepaid, to each owner of Series
Bonds, at the owner's address on the transfer registry, not less
than fifteen days prior to such special record date. The Trustee
may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a
newspaper or newspapers printed in the English language,
customarily published on each business day, of general circulation
in each city or place where interest is payable, but such
publication shall not be a condition precedent to the establishment
of such special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to
the persons in whose names the Series Bonds (or their
respective Predecessor Bonds) are registered on such special record
date and shall no longer be payable pursuant to the following
clause (ii).
(ii) The Company may elect to make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which Series Bonds
may at the time be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such
payment shall be deemed practicable by the Trustee.
Interest payable at maturity or upon earlier redemption will be
payable to the person to whom the principal will be payable in
accordance with the provisions of the Indenture.
As used herein "Predecessor Bonds" of any particular Bond means
every previous Bond evidencing all or a portion of the same debt as
that evidenced by such particular Bond; and, for the purposes of
this definition, any Bond certified and delivered in lieu of a
destroyed or lost Bond shall be deemed to evidence the same debt as
the destroyed or lost Bond.
<PAGE>
Subject to the foregoing provisions of this section 2.03, each
Series Bond upon transfer of or exchange for or in lieu of any
other Series Bond of the same original issue date and identical
terms and provisions shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Series
Bond.
Payment of the principal of and/or premium, if any, on any
Series Bond to the registered owner (or the owner's registered
assigns) thereof and payment of the interest on any such Bond as
therein and in this section 2.03 provided shall be a discharge of
the Company, the Trustee, and any paying agent in respect of such
principal, premium and/or interest, as the case may be.
2.04. The permitted aggregate principal amount of Series
Bonds which may be executed by the Company and certified by the
Trustee shall not be limited except as otherwise provided in
Article 3 of and elsewhere in the Original Indenture, and except
that the aggregate principal amount of Bonds certified, delivered
and outstanding at any time shall never in any event exceed the
amount at that time permitted by law.
2.05. All of the Series Bonds shall be executed, in the
name and on behalf of the Company and under its corporate seal
impressed or imprinted thereon, by its president or one of its
vice-presidents, and by its treasurer or one of its assistant
treasurers, and shall be expressed to take effect as sealed
instruments. The signature of any or all of these officers on the
Series Bonds may be either manual or facsimile. In case any
officer of the Company who shall have signed or sealed any of the
Series Bonds shall not have been such officer on the date borne
by the Bonds, or shall cease to be such officer before the Bonds so
signed or sealed shall have been actually certified and/or
delivered, such Bonds, nevertheless, by presentation to the Trustee
for certification, or by delivery, shall be adopted by the Company
and may be certified and delivered as herein provided, and
thereupon shall be issued hereunder and shall be as binding upon
the Company as though the person who signed or sealed such Bonds
had been such officer of the Company on the date borne by the Bonds
and on the date of certification and delivery.
2.06. The Series Bonds shall be transferable and
exchangeable for other fully registered bonds of the same series,
original issue date and identical terms and provisions, and may be
presented for payment, and notices, requests, and demands in
respect of the Series Bonds may be served or made, in the
manner and upon the conditions, including the payment of applicable
charges, set forth in the form of Series Bonds hereinbefore
recited and in section 2.06 of and elsewhere in the Original
<PAGE>
Indenture; provided, however, that the owner of any Series Bond
shall be entitled to transfer or exchange such Bond without charge
(except for any stamp tax or other governmental charge incident
thereto); and provided, further, that the Company shall not be
required (i) to issue, transfer or exchange any Series Bond
during the fifteen days next preceding any interest payment date
and during any reasonable period which may be necessary in
connection with the selection by lot of Bonds to be redeemed, or
(ii) to transfer or exchange any Series Bond so selected for
redemption in whole or in part.
2.07. The certificate as to form shall provide, as to an issue
of Series Bonds, whether such Bonds may be called, as a whole
or in part, and whether any part of the principal amount thereof,
may be called, at the option of the Company or pursuant to any
applicable provision of the Original Indenture or this
Supplemental Indenture, for redemption at any time prior to
maturity, whether or not on an interest payment date, in each case
upon not less than 30 days' prior notice given as hereinafter
provided, at the applicable redemption price, together in each case
with accrued and unpaid interest to the redemption date. The
certificate as to form may provide, as to any issue of Series
Bonds, that none of such Bonds shall be so called for a period of
years, as set forth in the certificate. The applicable redemption
price shall be as set forth in the certificate as to form.
The certificate as to form may provide, as to any issue of
Series Bonds, that none of such Bonds shall be redeemed prior
to a stated date at general redemption prices if such redemption is
for the purpose or in anticipation of refunding such Bonds, or any
part thereof, through the use, directly or indirectly, of funds
borrowed by the Company at an effective interest cost to the
Company (computed in accordance with generally accepted financial
practice) of less than the effective interest cost to the Company
of such Bonds.
Notice of such redemption shall be given, money for such
redemption shall be deposited with and held and applied by the
Trustee, and such redemption shall be carried out in the manner and
with the effect specified in sections 5.02, 5.03, and 5.04 of the
Original Indenture, subject to the provisions of this paragraph.
"Published Notice" with respect to any redemption of Series
Bonds need not be given but a similar notice shall be mailed,
first-class postage prepaid, at least thirty days prior to any
redemption date of Series Bonds, to each owner of the Bonds to
be redeemed, at such owner's address on the transfer registry. As
a convenience, but not as a condition precedent to a redemption,
the Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice of redemption to be
<PAGE>
published at least once in a newspaper or newspapers printed in the
English language, customarily published on each business day and of
general circulation in each city or place where the principal of
the Bonds is payable. In case the Company shall have elected to
redeem less than all the outstanding Series Bonds, it shall, in
each such instance, at least fifteen days before the date upon
which mailing of the notice of redemption herein mentioned is
required to be made, notify the Trustee in writing of such election
and of the aggregate principal amount of Bonds to be redeemed and
the original issue date or dates of the Series Bonds from which
redemption is to be made, and the Trustee shall thereupon select
the Bonds to be redeemed from the outstanding Series Bonds of
the appropriate issue or issues not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection or redemption
of portions of the principal of Bonds of denominations greater than
$1,000 the portions of the principal of the Bonds so selected for
partial redemption to equal $1,000 or an integral multiple thereof
(provided, however, no remaining part of such bond shall be less
than $1,000), and within ten days after receiving the aforesaid
notice shall notify the Company in writing of the Bonds selected
for redemption and, in the case of any Bond selected for partial
redemption, the principal amount thereof to be redeemed. In case
the Company shall have elected to redeem less than all of an issue
of the outstanding Series Bonds, the notice of redemption shall
state, among other things, the identification (by numbers, groups
of numbers ending in the same digit, or series of digits, or
otherwise) and, in the case of partial redemption of Bonds of
denominations greater than $1,000, the respective principal amounts
of the Bonds to be redeemed. Installments of interest on any
Series Bonds maturing on or prior to the redemption date of
such Bond shall continue to be payable as provided in section 2.03
of this Supplemental Indenture.
2.08. The provisions of section 5.06 of the Original Indenture
(as amended by section 3.01 of the Second Supplemental Indenture
and sections 2.07 of the Fourth and Sixth Supplemental Indentures)
shall be operative so long as any Series Bonds are outstanding;
and the provisions of sections 2.07 and 2.08 of the Fourth
Supplemental Indenture, which by said sections are expressed to be
operative so long as any Series E Bonds are outstanding, shall be
operative so long as any Series Bonds are outstanding, but
subject to the provision of section 2.07 of the Sixth Supplemental
Indenture.
2.09. The Company covenants that so long as any Series
Bonds are outstanding it will not request a successor corporation
to deliver Bonds to the Trustee in the manner and with the effect
set forth in paragraphs (2), (3), and (4) of section 13.03 of the
Original Indenture.
<PAGE>
ARTICLE 3
AMENDMENT TO THE INDENTURE
3.01 There is hereby added to Article 3 section 3.02 of the
Original Indenture two new paragraphs at the conclusion of
section 3.02 reading as follows:
"The Company may, from time to time, and upon furnishing
the Trustee with the documents set forth in this section and
in section 3.03, direct the Trustee to acknowledge on its
books the right of the Company to request the certification
and delivery of Bonds pursuant to section 3.04 up to the
amount set forth in such direction. Such rights are
hereinafter called "Unissued Bonds." Any additional property
used as the basis for the acknowledgment of the Unissued
Bonds shall be deemed funded for the purposes of any
certificate required under any section of this Indenture, and
such Unissued Bonds shall be deemed to be Bonds outstanding
hereunder for the purposes of this section, section 3.03 and
section 3.04 (including in any application or certificate
required hereby or thereby) in the principal amounts and
having the interest rates and maturity dates as set forth in
the written application therefor but shall not have any
voting rights or be deemed to be Bonds outstanding hereunder
for any other purpose. The Trustee, upon being furnished by
the Company with an officers' certificate surrendering the
rights evidenced by any Unissued Bonds, shall acknowledge
upon its books the cancellation of said Unissued Bonds. Any
canceled Unissued Bonds not used theretofore against the
issuance of Bonds pursuant to section 3.04 shall thereafter
be treated as though they had never been outstanding.
The authorizing directors' resolutions and forms
required by paragraph (a) of this section 3.02 and the
authorizations and forms in the documents required by
paragraphs (b), (e), and (f) of this section as applicable to
Unissued Bonds shall be considered subsumed in the
authorizations and forms for the Bonds to be ultimately
issued pursuant to section 3.04. The opinion required
pursuant to paragraph (d) of this section shall be
appropriately modified to reflect the use of the Unissued
Bonds as herein provided."
3.02 Section 3.04 of Article 3 of the Original Indenture is
hereby amended by adding in the 1st line after "and delivered"
the following:
"and Unissued Bonds may be acknowledged by the
Trustee."
<PAGE>
3.03 There is added to Article 3 section 3.04 of the
Original Indenture two new paragraphs at the conclusion of
section 3.04 reading as follows:
"References herein to the certification and delivery of
Bonds to the aggregate amount of Bonds which shall have been
retired and which are unfunded shall be considered to include
the aggregate amount of Unissued Bonds which the Trustee has
acknowledged pursuant to section 3.02 and section 3.03 and
which are unfunded and not otherwise cancelled. Such
Unissued Bonds shall be deemed to be funded to the extent
that they have been used as the basis for the certification
and delivery of Bonds pursuant to this section.
Any application of the Company for the authentication
and delivery of Bonds pursuant to this section against
"Unissued Bonds" created in accordance with section 3.02
shall be accompanied by an officers' certificate stating that
retirements since July 1, 1949, were not greater than the
amount payable as an improvement fund since July 1, 1949,
and, unless there has been filed a net earnings certificate
including the interest charges on the Unissued Bonds within
the calendar year preceding the date of the application,
shall be accompanied by a net earnings certificate satisfying
the requirement of paragraph (d) of section 3.03 as far as
applicable."
ARTICLE 4.
CONCERNING THE TRUSTEE; DEFEASANCE;
MISCELLANEOUS PROVISIONS
4.01. The Trustee accepts the trusts under this
Supplemental Indenture, and shall be entitled to, may
exercise and shall be protected by all the rights, powers,
privileges, immunities, and exemptions provided in the Original
Indenture, and the provisions concerning the same are adopted and
made applicable to this Supplemental Indenture as
fully as if set forth herein at length. The recitals of fact
contained herein and in the Series Bonds (except the
Trustee's certificate upon said Bonds) shall be taken as the
statements of the Company and the Trustee assumes no
responsibility for the same. The Trustee makes no
representations as to the value of the trust estate or any part
thereof, or as to the title of the Company thereto, or as to the
validity or adequacy of the security afforded thereby or by the
Indenture, or as to the validity of this
Supplemental Indenture or of the Series Bonds. The Trustee
shall not be taken impliedly to waive hereby any right it would
otherwise have.
<PAGE>
4.02. This Supplemental Indenture shall
become void when the Original Indenture shall become void.
4.03. This Supplemental Indenture is hereby
expressly stated to be supplemental to the Original Indenture
and, as provided in the Original Indenture, shall form a part
thereof and shall be so construed. Except as herein expressly
otherwise defined, the use of terms and expressions herein is in
accordance with the definitions, uses and expressions contained
in the Original Indenture.
4.04. The Company warrants that at the date of execution and
delivery hereof the Company is not in default in any respect
under any of the provisions of the Original Indenture as
heretofore supplemented or of the Outstanding Bonds, and
covenants that it will perform and fulfill all the terms,
covenants, and conditions of the Indenture to be performed and
fulfilled by the Company. The Company is duly organized and
existing under the laws of The Commonwealth of Massachusetts and
is duly authorized under all applicable provisions of law to
create and issue the Series Bonds and to execute this
Supplemental Indenture. All corporate action on its part
for the creation and issue of the Series Bonds and for the
execution and delivery of this Supplemental
Indenture has been duly and effectively taken. The Series
Bonds in the hands of the holders thereof, and this
Supplemental Indenture, are and will be, respectively,
the legal, valid, and binding obligations of the Company.
4.05. All the covenants and provisions of this
Supplemental Indenture and of the Series Bonds are for the
sole and exclusive benefit of the parties hereto and the holders
of the Bonds, and no others shall have any legal, equitable, or
other right, remedy, or claim under or by reason of this
Supplemental Indenture or of the Series Bonds.
4.06. The Trustee hereby approves the form of the permanent
Series Bonds and the form of Trustee's certificate pertaining
thereto, all as hereinbefore recited, and the form of this
Supplemental Indenture.
4.07. This Supplemental Indenture is stated to
be dated as of . This is intended as and
for a date for reference and for identification, the actual time
of the execution hereof being the date set forth in the
testimonium clause hereof.
<PAGE>
4.08. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be
deemed an original; and such counterparts shall constitute but
one and the same instrument, which shall for all purposes be
sufficiently evidenced by any such original counterpart.
4.09. The cover of this Supplemental
Indenture and all article and description headings, and the table
of contents and marginal headings and notes, if any, are inserted
for convenience only, and shall not affect any construction or
interpretation hereof.
<PAGE>
IN WITNESS WHEREOF, Massachusetts Electric Company has caused
this Supplemental Indenture to be executed, and its
corporate seal to be hereto affixed, by its officers thereunto
duly authorized, and State Street Bank and Trust Company has
caused this Supplemental Indenture to be executed,
and its corporate seal to be hereto affixed, by its officers
thereunto duly authorized, all as of the day and year first above
written, but actually executed on the day of
.
MASSACHUSETTS ELECTRIC
COMPANY,
By:
_______________
_______________
ATTEST:
_______________
_______________
STATE STREET BANK AND TRUST
COMPANY,
As Trustee,
By:
_________________
_________________
ATTEST:
_________________
_________________
<PAGE>
SCHEDULE A
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF )
On this day of , before me personally
appeared and ,
to me personally known, who, being by me duly sworn, did say that
they are and ,
respectively, of Massachusetts Electric Company, that the seal
affixed to the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed by
them on behalf of said corporation by authority of its Board of
Directors; and the said and
acknowledged said instrument to be the free act and deed of
said corporation.
Notary Public
My commission expires
THE COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF )
On this day of , before me
personally appeared and
, to me personally known, who, being by me duly sworn,
did say that they are and
, respectively, of State Street Bank and Trust Company,
that the seal affixed to the foregoing instrument is the
corporate seal of said trust company and that said instrument was
signed and sealed on behalf of said trust company by authority of
its Board of Directors; and the said and
acknowledged said instrument to be the free act
and deed of said trust company.
Notary Public
My Commission expires
<PAGE>
I, ,
of Massachusetts Electric Company, a corporation duly organized
under the laws of The Commonwealth of Massachusetts and having
its principal place of business in Westborough, Massachusetts,
hereby certify that at a special meeting of the stockholders of
said Company, duly called and held at 25 Research Drive,
Westborough, Massachusetts, on October 18, 1982, by the
affirmative action of at least a majority of the Company's shares
outstanding and entitled to vote thereon, upon motion duly made
and seconded, the following vote was duly adopted:
Voted: That the Board of Directors of the Company is authorized
to vote to mortgage all or substantially all of the
Company's property, including its franchises, in
connection with the issue from time to time of the
Company's bonds and other actions under the Company's
First Mortgage Indenture and Deed of Trust and
supplements thereto.
I further certify that at a regular meeting of the Board of
Directors of said Company, duly called and held at 25 Research
Drive, Westborough, Massachusetts, on
, at which meeting a quorum was present and acting
throughout, by the affirmative action of all the directors
present, upon motions duly made and seconded, the following votes
were duly passed:
Voted: That this Company mortgage all or substantially all of
its property, including its franchises, in connection
with the issue of the New Bonds and other actions under
the Indenture.
Voted: That the form, terms, and provisions of the supplemental
indentures created for each additional issue and/or
series of New Bonds, a form of which is presented to
this meeting, and hereby ordered filed as Exhibit "_"
with the minutes of the meeting, are hereby approved;
and the President, any Vice President, the Treasurer,
and any Assistant Treasurer are severally authorized, in
the name and on behalf of the Company, to execute, under
the corporate seal attested by the Clerk or any
Assistant Clerk, to acknowledge and to deliver, an
instrument in substantially the form of said Exhibit
"_", with appropriate provisions relating to principal
amounts, maturity dates, interest rates, interest
payment dates, provisions for redemption, and refunding
provisions, as well as other terms and conditions for
the specific issue and/or series of New Bonds, within
such limits as may be established from time to time by
this Board, the total
<PAGE>
principal amount of New Bonds to be issued under said
supplemental indentures to be unlimited, and with such
further modifications as the officers executing said
supplemental indentures shall approve, in as many
counterparts as the officer so acting may deem
advisable, and to cause the same to be filed and
recorded and refiled and rerecorded as they or any one
or more of them shall deem advisable, such execution and
delivery to be conclusive evidence that same is
authorized by this vote.
Voted: That the Board of Directors considers the additions to
and amendment of the covenants and agreements of the
Indenture, as contained in the form of the supplemental
indenture attached hereto as Exhibit "__", to be for the
protection of the holders of the Bonds outstanding under
said Indenture and for the protection of the trust
estate.
And I further certify that, as appears from the records of
said Company, is the , being
duly authorized to execute in the name and on behalf of said
Company the foregoing Supplemental Indenture
dated as of , and I am
of said Company, duly authorized to attest the ensealing of
said Supplemental Indenture; that the
foregoing Supplemental Indenture, to which this
Certificate is attached, is substantially in the form presented
to and approved at said directors' meeting held on
; that the foregoing is a true and correct copy of the
votes passed at each of said meetings as recorded in the records
of said Company; and that said votes remain in full force and
effect without alteration.
WITNESS my hand and the corporate seal of Massachusetts
Electric Company on .
(Assistant) Clerk
<PAGE>
Exhibit 4-D
to Form S-3
Certificate as to Form
First Mortgage Bonds, Series
Supplemental Indenture: 2.01
Original Issue Date:
(Mass. Electric Letterhead)
(Date)
State Street Bank and Trust Company,
Trustee under First Mortgage Indenture
and Deed of Trust of Worcester County
Electric Company, dated as of July 1, 1949
as supplemented (the Indenture), including the
Supplemental Indenture
225 Franklin Street
Boston, Massachusetts 02110
Dear Sir or Madam:
The undersigned, of Massachusetts Electric
Company (the Company), formerly Worcester County Electric
Company, in connection with the certification and delivery of the
Company's First Mortgage Bonds, Series , hereby establishes the
following terms and conditions pursuant to Section 2.01 of the
Supplemental Indenture for a new issue thereof:
Issue Designation: .
Principal Amount: .
Date of Maturity: .
Interest Rate: .
Certificated or Book-Entry Only: .
Bond Form: .
(lithographed on steel engraved tints)
Distinguishing Letters/Numbers: .
CUSIP Number: .
Date of First Certification and Delivery: .
<PAGE>
Original Issue Discount: ; if applicable,
Total Amount of Discount: .
Date of First Interest Payment: .
Initial Price to Public: .
(percentage)
Restrictions on Call: .
Restrictions on Refunding: .
(rate of effective interest cost)
Provisions for Redemption: .
(years of par call)
Applicable Redemption Prices for Redemption:
If redeemed at any
time in the respective
twelve months' period
beginning (Date)
in each of the General Special
following year Redemption Prices Redemption Prices
- ---------------------- ----------------- ------------------
I have read the applicable provisions of the Indenture,
particularly Section 3.02 of the Indenture and Section 2.01 of the
Supplemental Indenture, compliance with which is a
condition precedent to certification and delivery of the Series
Bonds, requested by the Company's application and have made such
examination and investigation as in my opinion is necessary to
enable me to express an informed opinion as to the matters covered
in this certificate. In my opinion, there has been compliance
with all requirements of the Indenture with respect to the
furnishing of this certificate.
All statements made in this certificate are true with
reference to all pertinent definitions and uses of terms in the
Indenture.
Very truly yours,
Name:
Title:
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Worcester, ss.
Subscribed and sworn to before me by
on .
Notary Public
<PAGE>
Exhibit 5 to Form S-3
25 Research Drive, Westborough, Massachusetts 01582
===================================================
May 5, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Massachusetts Electric Company
First Mortgage Bonds
Dear Commissioners:
We have acted as counsel for Massachusetts Electric Company
(the Company) in connection with the proposed issuance, from time
to time, of one or more series of First Mortgage Bonds in an
aggregate principal amount not exceeding $100,000,000 (the New
Bonds). We have reviewed the various documents and proceedings
relating to the New Bonds, including the registration statement
on Form S-3 (and all documents incorporated by reference therein
and the exhibits thereto), the prospectus, and the proposed form
of supplemental indenture supplementing the Company's First
Mortgage Indenture and Deed of Trust, as previously amended and
supplemented (collectively, the Indenture). We have also
reviewed the corporate and regulatory authority for the issuance
of the New Bonds, and have examined such other documents and
records and have made such other examination of law as we deem
relevant and necessary in order to give this opinion.
Based on the foregoing, and subject to the additional actions
yet to be taken indicated below, it is our opinion:
1. That the Company is a corporation duly organized,
existing, and in good standing under the laws of The Commonwealth
of Massachusetts;
2. That the Company has proper and adequate powers for
supplementing the Indenture; for executing and issuing the New
Bonds thereunder; and for mortgaging under the Indenture the
property therein described;
3. That the issuance of the New Bonds has been duly
authorized by the board of directors of the Company, subject to
approval of governmental authorities having jurisdiction; and
that the authority to establish particular terms for each issue
of New Bonds is properly delegated to the officers of the
Company;
<PAGE>
4. That the Company has obtained an order from the
Massachusetts Department of Public Utilities approving the
proposed issuance of bonds and related matters;
5. That the Company is exempted by Rule 52 under the Public
Utility Holding Company Act of 1935 (the 1935 Act) from the
requirement of obtaining an order of the Commission; that the
sale of the New Bonds is subject to the registration statement
with respect thereto becoming effective under the Securities Act
of 1933, as amended, and to the qualification of each
supplemental indenture pertaining to the New Bonds under the
Trust Indenture Act of 1939; and
6. That, when each supplemental indenture pertaining to the
New Bonds has been duly executed and delivered, and the New Bonds
issued thereunder have been duly executed, certified, and
delivered against payment therefor, and subject to the
continuation of the above described corporate and regulatory
authority, such New Bonds will be legally issued, fully paid and
non-assessable binding obligations of the Company, subject to
laws of general application affecting the rights and remedies of
mortgagees and creditors.
We have reviewed the statements made upon our authority in
the registration statement and in the prospectus with respect to
the New Bonds, and in our opinion such statements are correct.
We hereby consent to the use of our names in the registration
statement and each related prospectus of the Company with respect
to the New Bonds and to the use of this opinion in connection
therewith.
Very truly yours,
s/Robert King Wulff
Robert King Wulff
Corporation Counsel
s/Kirk L. Ramsauer
Kirk L. Ramsauer
Assistant General Counsel
<PAGE>
<TABLE>
MASSACHUSETTS ELECTRIC COMPANY
Computation of Ratio of Earnings to Fixed Charges
(SEC Coverage)
(Unaudited)
<CAPTION>
12 Months
Ended
March 31, 1995 Years Ended December 31,
Actual -------------------------------------------------------------
(Unaudited) 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
(In Thousands)
<S> <C> <C> <C> <C> <C> <C>
Net Income $30,280 $34,726 $23,779 $34,905 $25,243 $35,192
- ----------
Add income taxes and fixed charges
- ----------------------------------
Current federal income taxes (7,621) (6,762) 5,606 3,977 8,568 14,681
Deferred federal income taxes 23,410 24,932 3,430 13,451 3,889 1,044
Investment tax credits - net (1,204) (1,228) (1,228) (1,228) (1,194) (1,225)
Massachusetts franchise tax 4,230 4,681 3,348 3,858 2,920 3,765
Interest on long-term debt 22,069 20,967 23,403 21,910 20,157 20,626
Interest on short-term debt and other7,840 6,366 3,638 3,657 3,643 3,090
------- ------- ------- ------- ------- -------
Net earnings available for fixed charges$79,004$83,682 $61,976 $80,530 $63,226 $77,173
------- ------- ------- ------- ------- -------
Fixed charges:
Interest on long-term debt $22,069 $20,967 $23,403 $21,910 $20,157 $20,626
Interest on short-term debt and other7,840 6,366 3,638 3,657 3,643 3,090
------- ------- ------- ------- ------- -------
Total fixed charges $29,909 $27,333 $27,041 $25,567 $23,800 $23,716
======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges 2.64 3.06 2.29 3.15 2.66 3.25
- ----------------------------------
</TABLE>
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-3 of our report dated February 27, 1995, on
our audits of the financial statements of Massachusetts Electric
Company. We also consent to the reference to our firm under the
caption "Experts".
s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 5, 1995
<PAGE>
Exhibit 26
to Form S-3
MASSACHUSETTS ELECTRIC COMPANY
INVITATION FOR BIDS
FOR PURCHASE OF
FIRST MORTGAGE BONDS
Massachusetts Electric Company (the Company) is inviting
bids, subject to the terms and conditions for bids attached
hereto (the Terms and Conditions), for the purchase of not
exceeding $ million aggregate principal amount of its First
Mortgage Bonds (the Bonds). The series designation, principal
amount, maturity date, provisions for redemption, and interest
payment dates of each issue of Bonds, the time, date, and place
for the submission of bids therefor, and the place for delivery
of Confirmations of Bids therefor, shall be designated by the
Company by prior notice given pursuant to the Terms and
Conditions. Copies of the registration statement, the Terms and
Conditions, and the form of confirmation of bid may be obtained
from the Company's Corporate Finance Department at the offices of
New England Power Service Company, 25 Research Drive,
Westborough, Massachusetts 01582. Bids will be considered only
if made in accordance with, and subject to, the Terms and
Conditions. Prior to the acceptance of any bid, the bidder or
bidders will be furnished with a copy of a prospectus relating to
the Bonds which meets the requirements of Section 10(a) of the
Securities Act of 1933 at that time.
The issue of a particular series or issue of Bonds shall not
be contingent upon the issue of any other series or issue. A
bidder may bid for any one or more series or issue of Bonds, but
shall submit a separate bid for each such series or issue. The
bidding for each series or issue shall be a separate transaction,
and a bidder shall fully and timely comply with the Terms and
Conditions separately for such series or issue.
Inquiries and requests for additional information with
respect to the bidding for the Bonds may be directed to the
Company's Corporate Finance Department at 25 Research Drive,
Westborough, Massachusetts 01582 (telephone 508-389-2000).
MASSACHUSETTS ELECTRIC COMPANY
By: MICHAEL E. JESANIS
Treasurer
Westborough, Massachusetts
Date:
<PAGE>
MASSACHUSETTS ELECTRIC COMPANY
TERMS AND CONDITIONS FOR BIDS
FOR PURCHASE OF
FIRST MORTGAGE BONDS
Massachusetts Electric Company (the Company) is inviting
bids, subject to the following terms and conditions, for the
purchase of its First Mortgage Bonds (the Bonds). Details
concerning the Bonds and the submission of bids therefor will be
designated in a notice given to prospective bidders as set forth
in Section 1 hereof. The registration statement referred to
below contains brief summaries of some of the terms of the Bonds
and of the Indenture (as defined below) under which the Bonds are
to be issued. These summaries use terms defined in the Indenture
and are qualified in their entirety by reference to the
Indenture.
The Company may invite bids for more than one series or issue
of Bonds. The issue of a particular series or issue of Bonds
shall not be contingent upon the issue of any other series or
issue. A bidder may bid for any one or more series or issues of
Bonds, but shall submit a separate bid for each such series or
issue. The bidding for each series or issue shall be a separate
transaction, and a bidder shall fully and timely comply with the
Terms and Conditions separately for each such series.
1. Information and Forms Available to Prospective Bidders
The following documents relating to the Bonds may be examined
by prospective bidders at the offices of New England Power
Service Company, Corporate Finance Department, 25 Research Drive,
Westborough, Massachusetts, on any business day between 10 A.M.
and 4 P.M.:
(a) the registration statement on Form S-3 (including the
financial statements, exhibits, any documents
incorporated therein by reference, and any amendments or
supplements thereto), as filed with the Securities and
Exchange Commission, and the prospectus included
therein;
(b) the First Mortgage Indenture and Deed of Trust, dated as
of July 1, 1949, from the Company to State Street Bank
and Trust Company (formerly Second Bank-State Street
Trust Company, successor to The Second National Bank of
Boston), as Trustee, the outstanding indentures
supplemental thereto and the form of the supplemental
indenture thereto relating to the Bonds (collectively,
the Indenture);
<PAGE>
(c) the form of confirmation of bid to be used in confirming
the telephonic submissions of bids (the Confirmation of
Bid) which, together with all schedules thereto,
constitutes the form of purchase agreement (the Purchase
Agreement);
(d) the form of questionnaire referred to in Section 2
hereof (the Questionnaire) to be used by prospective
bidders in furnishing certain information to the Company
and to the Trustee under the Indenture and, in the case
of a group of bidders, in designating the Representative
(as defined below) of such group;
(e) the order of the Massachusetts Department of Public
Utilities; and
(f) the surveys by Milbank, Tweed, Hadley & McCloy (referred
to in Section 8 hereof) with respect to the necessity
for qualification of the Bonds for sale under securities
or "blue sky" laws of the various states and with
respect to legality of the Bonds for investment in
certain states by savings banks, life insurance
companies, and trustees.
Copies in reasonable quantities of Item (a) above, excluding
any exhibits incorporated therein, and of Items (c), (d), and (f)
above will be supplied to prospective bidders upon request.
No later than 4 P.M., Boston time, on the day immediately
preceding the day for submission of bids for the Bonds, the
Company shall designate to prospective bidders, by telephone,
telecopy, or telegram:
(i) the series designation of the Bonds to be issued;
(ii) the aggregate principal amount of the Bonds to be
issued;
(iii) the maturity date of the Bonds, which maturity
date shall be not later than 30 years from the
date as of which the Bonds are first issued;
(iv) the redemption provisions;
(v) the dates on which interest shall be paid; and
(vi) the date, time, and place for submission of bids
and the place for delivery of the Confirmations of
Bids.
<PAGE>
The Company reserves the right to amend and/or supplement the
registration statement and prospectus and to make changes in
these Terms and Conditions and in the documents referred to in
this Section, including the forms of supplemental indentures, and
will give notice of the making of any such amendment, supplement,
or change that, in the opinion of the Company, is material. Upon
request, the Company will furnish copies of any amendment,
supplement, or change to each prospective single bidder or to the
Representative of any group of prospective bidders.
Any notice given by the Company under these Terms and
Conditions need be sent only to prospective bidders who have
filed Questionnaires as provided in Section 2 hereof. If a group
of bidders shall have designated a Representative, such notice
need be sent only to said Representative.
2. General Provisions with Respect to Bidders
In case of a bid by a group of bidders, the several bidders
in the group shall act through a duly authorized representative
or representatives (the Representative), who shall be a member of
such group and who shall be designated and authorized as
Representative by each member of such group in the Questionnaire
filed by such member, or who may be substituted for a named
Representative in accordance with the terms of said
Questionnaire. (If a Representative ceases to be duly authorized
by reason of substitution, withdrawal from the group, or
otherwise, any action by the Representative while duly authorized
shall continue in full force and effect, unless expressly
modified or terminated.)
No bid for the Bonds will be considered unless the bidder
(or, in the case of a group of bidders, each bidder) shall have
filed with the Company's Corporate Finance Department, at the
offices of New England Power Service Company, 25 Research Drive,
Westborough, Massachusetts 01582, before noon, Boston time, seven
days prior to the date of bid opening (or such later date as may
be fixed by the Company), a Questionnaire properly filled in and
signed in duplicate. Notwithstanding the filing of such
Questionnaire, any prospective bidder may thereafter determine
not to bid. The Company reserves the right to waive any
irregularity in any Questionnaire or in the filing thereof and to
obtain by telephone or other means of communication any
information required by a Questionnaire. New Questionnaires
properly filled in and signed in duplicate shall be submitted
from time to time as necessary to reflect any changes in the
information contained therein.
<PAGE>
3. Form and Content of Bids and Confirmations of Bids
Each bid may be made by a single bidder or by a group of
bidders and shall be for the purchase of all of the Bonds. No
bidder may submit or participate in more than one bid for the
Bonds. If any bidder participating in the winning bid for the
Bonds shall have submitted or participated in another bid, said
bidder shall be deemed a defaulting bidder and the provisions of
Section 12 of the Purchase Agreement shall apply to its
participation. If a bid is made by a representative on behalf of
a group of bidders, the obligations of the members of the group
shall be several, and not joint or joint and several.
All bids must be submitted by telephone and confirmed in
writing in the manner set forth below on a Confirmation of Bid
signed by the Representative on behalf of the members of a group
of bidders, or in the case of a single bidder, by such bidder.
Each bid must specify: (a) the interest rate, which shall be a
multiple of 1/8 of 1%; and (b) the price to be paid to the
Company for the Bonds, which shall be expressed as a percentage
of the principal amount of the Bonds and shall not be less than
95% nor more than 100% thereof. If the Confirmation of Bid is
not signed by a partner or executive officer of the bidder or
Representative, authority to sign and deliver said bid must be
appended thereto unless previously furnished to the Company. The
Confirmation of Bid shall specify the same interest rate and
price specified in the telephonic bid and, if submitted by a
Representative on behalf of a group of bidders, the principal
amount of the offering of Bonds to be purchased by each member of
the group.
4. Submission of Bids and Delivery of Confirmations of Bids
All bids must be submitted by telephone, in the manner
hereinafter set forth, at the time designated by the Company.
Each Representative or single bidder, by submission of a bid,
agrees to confirm the bid in writing, within one hour after the
time designated for the submission of bids, by delivery of a
Confirmation of Bid meeting the requirements of Section 3, at the
place (which shall be in New York City) designated by the Company
for delivery of the Confirmations of Bids, if notified that such
bidder has tentatively been identified as the lowest bidder, or
by telecopy if not so notified. The Company reserves the right
at any time and from time to time to postpone the bidding date or
time.
Not less than one hour prior to the time designated by the
Company for submission of bids, the Representative or single
bidder shall notify the Company's Corporate Finance Department,
<PAGE>
at the offices of New England Power Service Company, 25 Research
Drive, Westborough, Massachusetts, by telephone (508-389-2000),
of the name and telephone number of the person or persons (the
Authorized Telephonic Bidder) designated by the Representative or
the single bidder to submit its bid.
Not more than fifteen nor less than five minutes prior to the
time designated for submission of bids, a representative of the
Company shall establish telephonic contact with the Authorized
Telephonic Bidder. Promptly at the time designated for
submission of bids, the representative of the Company shall
request the Authorized Telephonic Bidder to state the bid. The
representative of the Company shall then repeat the bid to the
Authorized Telephonic Bidder to verify its accuracy. Upon such
verification of the accuracy of the bid, the representative of
the Company shall make a record of the bid. Such record of the
Company shall be controlling, except in the case of manifest
error, for all purposes hereunder. After the closing of bids,
information as to bids submitted by other bidders or groups of
bidders will be furnished upon request.
5. Opening and Acceptance or Rejection of Bids
Each Confirmation of Bid will be examined by the Company
promptly upon receipt at the place designated for the delivery
thereof. Each bid, as evidenced by such confirmation, will be
accepted or rejected in its entirety by the Company within four
hours after the time designated for submission of bids, and each
bid not accepted within such four-hour period shall be deemed to
have been rejected. Acceptance of a bid will be evidenced by
endorsement by the Company upon the applicable Confirmation of
Bid of its acceptance thereof and announcement thereof at said
place and within such period.
The Company reserves the right: (a) not to receive any bids;
(b) to waive any irregularities in the form or submission of bids
or the form or delivery of Confirmations of Bids; (c) to reject
all bids after the submission thereof; and (d) to disqualify and
reject the bid of any bidder or group of bidders (i) if the
Company, in the opinion of its counsel, may not lawfully sell the
Bonds to such bidder or to one or more members of such group,
(ii) if the Company is not satisfied with the financial
responsibility of such bidder or of one or more members of such
group, or (iii) if, in the opinion of counsel for the Company,
such bidder or one or more members of such group is in such
relationship with State Street Bank and Trust Company, Boston,
Massachusetts, as would disqualify said bank from acting as
trustee under the Indenture, if such bid were accepted (unless,
in the case of a group of bidders, within two hours after the
<PAGE>
time designated for submission of bids, each such member shall
have withdrawn from the group and the remaining members shall
have agreed to purchase the Bonds which such withdrawing member
or members had offered to purchase); and any bid so disqualified
and rejected by the Company shall be disregarded in determining
the bid to be accepted.
If, in a Confirmation of Bid submitted by a Representative,
the total of the principal amounts designated to be purchased by
the various members of the group does not equal the aggregate
principal amount of the Bonds, the Representative executing such
bid may, forthwith upon notice of the discrepancy, correct any
error in the Confirmation of Bid. If after any such correction
is made there remains a discrepancy, the Representative's
allocable share shall be increased or decreased by an amount
necessary to eliminate such discrepancy; provided that, if the
Representative's allocable share is eliminated entirely and the
total of the principal amounts allocable to the remaining members
of the group still exceeds the aggregate principal amount of the
Bonds, the remaining members' shares shall be ratably reduced by
an amount necessary to eliminate the discrepancy. If, in a
Confirmation of Bid submitted by a Representative, any bidder
designated shall not have filed a Questionnaire as provided in
Section 2 hereof, and such filing shall not have been expressly
waived by the Company, said bidder's name shall be stricken from
the list and the Representative's allocable share shall be
increased by the amount designated for the bidder whose name is
stricken. (If there is more than one Representative, such
increases or decreases shall be divided among them in proportion
to the amount of Bonds initially specified to be taken by each.)
Any other errors with respect to the amounts allocable to various
members of a group of bidders may be corrected by the
Representative at any time prior to the acceptance of a bid by
the Company. The Company shall be entitled to note any
correction or change made pursuant to this paragraph on Schedule
A to the Confirmation of Bid.
If the interest rate or price specified in a Confirmation of
Bid is not identical to that shown on the record of bid
maintained by the Company, the Representative or single bidder,
forthwith upon notice of the discrepancy, shall correct the
Confirmation of Bid to conform to said record except if there
shall be manifest error in such record.
If any bid is accepted, the qualified bid resulting in the
lowest cost of money to the Company (the Best Bid) will be
accepted. The Best Bid will be that bid which, as determined by
the Company, results in the lowest yield on the Bonds based on
the term of the Bonds, the interest rate, and the bid price to
the Company. The determination by the Company of the Best Bid
shall be final.
<PAGE>
If two or more bids would yield the same lowest cost of money
to the Company, the Company may, in its discretion, accept any
one of such bids or may give the makers of such bids an
opportunity to improve their bids within a designated time. If
the Representative of any group of bidders which has submitted
one of such bids shall within the designated time submit an
improved bid for all of the Bonds that does not include all
members of the original bidding group, the Company shall be
entitled to accept the improved bid, provided that the bidders
shall thereafter be limited to those designated in the improved
bid. If no improved bid is submitted within the designated time,
or if there are submitted two or more improved bids yielding the
same lowest cost of money to the Company, the Company may in its
discretion accept any one of such bids.
Prior to acceptance of any bid, each bidder designated
therein will be furnished a prospectus relating to the Bonds
which meets the requirements of Section 10(a) of the Securities
Act of 1933 at that time.
6. Determination of Redemption Prices for the Bonds
Forthwith upon the acceptance of a bid, the successful bidder
or, if a group of bidders, the Representative, shall specify in
writing the proposed initial public offering price of the Bonds
or shall state that no public offering of the Bonds is intended
to be made. The redemption prices for a redemption of the Bonds
will thereupon be determined by the Company in the following
manner, which determination shall be final.
The Initial Public Offering Price shall be the price at which
the Bonds are to be initially offered for sale to the public, as
specified by the successful bidder or the Representative of the
successful bidders; provided that, in the event the successful
bidder or the Representative shall have stated as aforesaid that
no public offering of the Bonds is intended, the Initial Public
Offering Price shall be deemed to be the price to be paid by the
successful bidder or bidders to the Company for the Bonds. The
Annual Redemption Period shall be the twelve-month period
beginning on the first day of the month as of which the Bonds are
first issued in each year, commencing with the year the Bonds are
first issued.
Special Redemption Prices
The special redemption price applicable to each Annual
Redemption Period shall be 100% of the principal amount of the
Bonds.
<PAGE>
General Redemption Prices
The initial general redemption price applicable during the
twelve-month period beginning on the date as of which the Bonds
are first issued shall be the Initial Public Offering Price plus
a percentage of the principal amount thereof equal to the
interest rate of the Bonds, which total, if not a multiple of
1/100 of 1%, shall be increased to the next higher multiple of
1/100 of 1%. Such initial general redemption price shall be
reduced annually on the first day of the month as of which the
Bonds are first issued, commencing the year immediately following
the year in which the Bonds are first issued, by 1/* of the
amount by which the initial general redemption price exceeds the
principal amount of the Bonds; provided, however:
(a) that, if any general redemption price so determined
is not a multiple of 1/100 of 1%, such redemption
price shall be increased to the next higher
multiple of 1/100 of 1%;
(b) that the general redemption price applicable to any
Annual Redemption Period shall not in any event be
lower than the special redemption price applicable
to such Annual Redemption Period; and
(c) that the Company may designate additional terms,
such as restrictions on redemption, as set forth in
Section 1.
7. The Purchase Agreement
Forthwith upon the acceptance by the Company of a bid for the
Bonds, the accepted Confirmation of Bid together with all
schedules thereto shall become a binding contract, which shall be
the Purchase Agreement between the Company and the successful
bidder or bidders, all of whose rights shall thereupon be
determined solely in accordance with the terms thereof, subject
to such changes therein as may be appropriate if the successful
bidder or bidders shall not contemplate a public offering. The
__________
* The denominator of the fraction is two-thirds of the number
of years from the first day of the month as of which the Bonds
are first issued to the maturity date specified by the Company in
the notice given pursuant to Section 1 hereof, or, if such
calculation does not produce an integer, the denominator shall be
the next higher integer.
<PAGE>
Company shall, upon request, indicate its acceptance of the
accepted bid by signing and delivering to the successful bidder
or Representative of the successful bidders a duplicate copy of
the Confirmation of Bid.
8. Counsel for the Successful Bidder or Bidders
Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New
York, New York 10005, have been selected by the Company as
counsel for the successful bidder or bidders for the Bonds to
give opinions with respect to the Bonds. Such counsel have
prepared surveys for prospective bidders contemplating a
reoffering of Bonds, with respect to the necessity for
qualification of the Bonds for sale under securities or "blue
sky" laws of various states and with respect to the legality of
the Bonds for investment in certain states by savings banks, life
insurance companies, and trustees. The successful bidder or
bidders are to pay the compensation and disbursements of such
counsel, except as otherwise provided in the Purchase Agreement.
Such counsel will, on request, advise any prospective bidder who
has filed a Questionnaire as provided in Section 2 hereof of the
amounts of such compensation and estimates of the disbursements.
MASSACHUSETTS ELECTRIC COMPANY
By:MICHAEL E. JESANIS
Treasurer
Westborough, Massachusetts
Date:
<TABLE> <S> <C>
<PAGE>
<ARTICLE> UT
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE BALANCE SHEET AND RELATED STATEMENTS OF INCOME, RETAINED
EARNINGS AND CASH FLOWS OF MASSACHUSETTS ELECTRIC COMPANY, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER>1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> MAR-31-1995
<PERIOD-TYPE> 3-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,005,333
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 228,320
<TOTAL-DEFERRED-CHARGES> 61,232 <F1>
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 1,294,885
<COMMON> 59,953
<CAPITAL-SURPLUS-PAID-IN> 187,172
<RETAINED-EARNINGS> 135,264
<TOTAL-COMMON-STOCKHOLDERS-EQ> 382,389
0
50,000
<LONG-TERM-DEBT-NET> 313,413
<SHORT-TERM-NOTES> 68,725 <F2>
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 25,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 455,358
<TOT-CAPITALIZATION-AND-LIAB> 1,294,885
<GROSS-OPERATING-REVENUE> 373,092
<INCOME-TAX-EXPENSE> 3,062
<OTHER-OPERATING-EXPENSES> 356,681
<TOTAL-OPERATING-EXPENSES> 359,743
<OPERATING-INCOME-LOSS> 13,349
<OTHER-INCOME-NET> 326
<INCOME-BEFORE-INTEREST-EXPEN> 13,675
<TOTAL-INTEREST-EXPENSE> 8,549
<NET-INCOME> 5,126
778
<EARNINGS-AVAILABLE-FOR-COMM> 4,348
<COMMON-STOCK-DIVIDENDS> 5,995
<PAGE>
<TOTAL-INTEREST-ON-BONDS> 6,105
<CASH-FLOW-OPERATIONS> 9,896
<EPS-PRIMARY> 0 <F3>
<EPS-DILUTED> 0 <F3>
<FN>
<F1> Total deferred charges includes other assets.
<F2> Short-term notes includes commercial paper obligations and short-term debt to affiliates.
<F3> Per share data is not relevant because the Company's stock is wholly owned by New England Electric System.
</FN>
