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.
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.
SCHEDULE A
PRINCIPAL
AMOUNT
NAME OF BONDS
TOTAL $
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.
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
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
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
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
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;
(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
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
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
(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
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;
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
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
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
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
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
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.
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.
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.
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.
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
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.
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
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.
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
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
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