__________ RATE REDUCTION BONDS, SERIES 2002-1
PSNH FUNDING LLC 2
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
UNDERWRITING AGREEMENT
New York, New York
January __, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.,
as Underwriter
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introduction. PSNH Funding LLC 2, a Delaware limited
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liability company (the "Issuer"), will sell to you, as underwriter (the
"Underwriter"), the principal amount of _________ Rate Reduction Bonds, Series
2002-1 identified in Schedule I hereto (the "Bonds").
The Bonds will be issued pursuant to an Indenture, dated as of January __,
2002 (the "Indenture"), between the Issuer and The Bank of New York, as Trustee
(the "Trustee"). The Bonds will be secured primarily by, and will be payable
from, the RRB Property described in the Issuance Advice Letter. Such RRB
Property will be sold to the Issuer by Public Service Company of New Hampshire,
a New Hampshire corporation (the "Company"), pursuant to a Purchase and Sale
Agreement, dated as of January __, 2002 (the "Sale Agreement"), between the
Company, as Seller, and the Issuer. The RRB Property will be serviced pursuant
to a Servicing Agreement, dated as of January __, 2002 (as amended and
supplemented from time to time, the "Servicing Agreement"), between the Company,
as Servicer, and the Issuer.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings given to them in the Indenture.
2. Representations and Warranties.
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(a) Each of the Company and the Issuer represents and warrants to,
and agrees with, the Underwriter as set forth below in this Section 2(a).
Certain terms used in this Underwriting Agreement are defined in paragraph
(iii) below.
(i) If the offering of the Bonds is a Delayed
Offering (as specified in Schedule I hereto), paragraph (1) below
is applicable and, if the offering of the
Bonds is a Non-Delayed Offering (as so specified), paragraph (2) below is
applicable.
(1) The Issuer and the Bonds meet the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act"), and the Issuer has filed with the Securities and
Exchange Commission (the "SEC") a registration statement
(file number 333-76040) on such Form, including a basic
prospectus, for registration under the Act of the offering
and sale of the Bonds. The Issuer may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to
you. Such registration statement, as so amended, and in the
form heretofore delivered to you, has become effective. The
offering of the Bonds is a Delayed Offering and, although the
Basic Prospectus may not include all the information with
respect to the Bonds and the offering thereof required by the
Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to
be included therein as of the Effective Date. The Issuer will
next file with the SEC pursuant to Rule 424(b)(2) or (5) a
final supplement to the form of prospectus included in such
registration statement relating to the Bonds and the offering
thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Bonds
and the offering thereof and, except to the extent the
Underwriter shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed
at the Execution Time, shall contain only such specific
additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Issuer has advised you, prior to the
Execution Time, will be included or made therein.
(2) The Issuer and the Bonds meet the requirements for the use of
Form S-3 under the Act and the Issuer has filed with the SEC
a registration statement (file number 333-76040) on such
Form, including a basic prospectus, for registration under
the Act of the offering and sale of the Bonds. The Issuer may
have filed one or more amendments thereto, including a
Preliminary Final Prospectus in accordance with Rule 424(a),
each of which has previously been furnished to you. The
Issuer will next file with the SEC either (x) a final
prospectus supplement relating to the Bonds in accordance
with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to
such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Issuer
has included in
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such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in the Final
Prospectus with respect to the Bonds and the offering thereof.
As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required
information, with respect to the Bonds and the offering thereof
and, except to the extent the Underwriter shall agree in
writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Issuer has advised you,
prior to the Execution Time, will be included or made therein.
(ii) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules and regulations
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any 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 neither the Issuer nor the Company
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makes any representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statements of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Issuer by or on behalf
of the Underwriter specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto), as specified in Section 8(b)
of this Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted.
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(iii) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a)(i) above contained in the Registration
Statement at the Effective Date including, in the case of a Non-Delayed
Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic Prospectus which
describes the Bonds and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Bonds that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Bonds, including the Basic
Prospectus, included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
paragraph (a)(i) above, including all incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 424," "Rule 430A" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with respect to the
Bonds and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering" shall mean an
offering of Bonds which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to Rule 430A,
all information (other than Rule 430A Information) with respect to the Bonds so
offered must be included in such registration statement at the effective date
thereof.
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(iv) The Issuer has been duly organized and is validly
existing in good standing as a limited liability company under
the laws of the State of Delaware, has the power and authority
to conduct its business as presently conducted and as
described in the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus and is duly qualified as a
foreign corporation to do business and in good standing in
every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification
necessary and in which the failure to so qualify would have a
materially adverse effect on the Issuer; and the Issuer has
all requisite power and authority to issue the Bonds and
purchase the RRB Property as described in the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus.
(v) The Company is a validly existing corporation in
good standing under the laws of the State of New Hampshire;
the Company has all requisite power and authority and all
franchises, licenses and permits necessary to own and occupy
its properties and carry on its business as presently
conducted and as described in the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus and as
may be necessary to execute, deliver and perform its
obligations under this Agreement, the Sale Agreement, the
Servicing Agreement and the Administration Agreement.
(vi) Each of the Basic Documents to which the Company or
the Issuer is a party has been duly authorized by the Company
or the Issuer, as applicable, and when executed and delivered
by the Issuer or the Company, as applicable, will constitute a
valid and binding obligation of the Company or the Issuer, as
applicable, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles.
(vii) The Bonds have been duly authorized by the Issuer
and will conform to the description thereof in the Prospectus;
and when the Bonds are executed and authenticated by the
Trustee and delivered to the Underwriter and are paid for by
the Underwriter in accordance with the terms of this
Agreement, the Bonds will constitute the legal, valid and
binding obligations of the Issuer, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and
to general principles of equity.
(viii) The issuance and sale of the Bonds by the Issuer,
the execution, delivery and compliance by the Issuer with all
of the provisions of the Basic Documents to which the Issuer
is a party, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any trust agreement, indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer is a party or by which the
Issuer is bound or to which any of the property or assets of
the Issuer is subject, which
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conflict, breach, violation or default would be material to the
issuance of the Bonds or would have a material adverse effect on the
Issuer, nor will such action result in any violation of the Issuer's
Certificate of Formation or Limited Liability Company Agreement (the
"LLC Agreement") or any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Issuer or its properties.
(ix) The assignment of the RRB Property by the Company to the
Issuer, the execution, delivery and compliance by the Company with all
of the provisions of the Basic Documents to which the Company is a
party, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any trust agreement, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, which conflict, breach, violation
or default would be material to the issuance and sale of the Bonds or
would have a material adverse effect on the financial position or
results of operations of the Company, nor will such action result in
any violation of the provisions of the Articles of Incorporation or
Bylaws of the Company or any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties.
(x) Except for:
(a) the order of the SEC making the Registration Statement
effective, and
(b) permits and similar authorizations required under the
securities or blue sky laws of any jurisdiction,
no consent, approval, authorization or other order of any governmental
authority is legally required for the execution, delivery and
performance of this Agreement by the Issuer and the Company and the
consummation of the transactions contemplated hereby, other than those
that have been obtained.
(b) The Underwriter represents and warrants to, and agrees with, the
Issuer, its directors and such of its officers as shall have signed the
Registration Statement, that the information furnished in writing to the
Issuer by or on behalf of the Underwriter expressly for use in the
Registration Statement or the Prospectus, as specified in Section 8(b) of
this Agreement, does not contain an untrue statement of a material fact and
does not omit to state a material fact in connection with such information
required to be stated therein or necessary to make such information not
misleading.
3. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Issuer
will sell to the Underwriter, and the Underwriter agrees to purchase from the
Issuer, at the purchase price for the Bonds set
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forth in Schedule II hereto, the principal amount of Bonds set forth opposite
the name of the Underwriter on Schedule II hereto.
4. Delivery and Payment. Delivery of and payment for the Bonds
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shall be made at 9:00 AM (Eastern Daylight Time) on January __, 2002 (or such
later date not later than five business days after such specified date as the
Underwriter shall designate), which date and time may be postponed by agreement
between the Underwriter and the Issuer (such date and time of delivery and
payment for the Bonds being herein called the "Closing Date"). Delivery of the
Bonds shall be made to the Underwriter against payment by the Underwriter of the
purchase price thereof to the Issuer by wire transfer of immediately available
funds in U.S. dollars. Delivery of the Bonds shall be made at such location as
the Underwriter shall reasonably designate at least one business day in advance
of the Closing Date. The Bonds to be so delivered shall be initially represented
by Bonds registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Bonds will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Bonds will be available only under limited circumstances
described in the Final Prospectus.
The Issuer will have the Bonds available for inspection, checking and
packaging by the Underwriter in New York, New York, not later than 1:00 PM
(Eastern Daylight Time) on the business day prior to the Closing Date.
5. Covenants.
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(a) Covenants of the Issuer. The Issuer covenants and agrees with the
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Underwriter that:
(i) The Issuer will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Bonds, the Issuer will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Issuer has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Issuer will cause the Final Prospectus, properly
completed in a form approved by you, and any supplement thereto to be
filed with the SEC pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Underwriter of such timely filing. The Issuer will
promptly advise the Underwriter (i) when the Registration Statement,
if not effective at the Execution Time, and any amendment thereto,
shall have become effective, (ii) when the Final Prospectus, and any
supplement thereto, shall have been filed with the SEC pursuant to
Rule 424(b), (iii) when, prior to termination of the offering of the
Bonds, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the SEC for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by
the SEC of any stop order
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suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification of the Bonds for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
The Issuer will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Bonds is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include 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 were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Issuer promptly
will (i) prepare and file with the SEC, subject to the second
sentence of paragraph (a)(i) of this Section 5, an amendment
or supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(iii) As soon as practicable, the Issuer will use its
reasonable efforts to cause the Trust to make generally
available to the holders of the Bonds and the Underwriter an
earnings statement or statements of the Issuer which will
satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Issuer will furnish to the Underwriter and
counsel for the Underwriter, without charge, copies of the
Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement
thereto as the Underwriter may reasonably request. The Issuer
shall furnish or cause to be furnished to the Underwriter
copies of all reports required by Rule 463 under the Act. The
Issuer will pay the expenses of printing or other production
of all documents relating to the offering.
(v) The Issuer will arrange for the qualification of the
Bonds for sale under the laws of such jurisdictions as the
Underwriter may designate, will maintain such qualifications
in effect so long as required for the distribution of the
Bonds or requested by the Underwriter and will arrange for the
determination of the legality of the Bonds for purchase by
institutional investors; provided, however, that in no event
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shall the Issuer be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Bonds, in any jurisdiction where it is not now so subject.
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(vi) Until 90 days after the date hereof, the Issuer
will not, without the written consent of the Underwriter,
offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any
asset-backed securities of a trust or other special purpose
vehicle (other than the Bonds).
(vii) For a period from the date of this Agreement
until the retirement of the Bonds or until such time as the
Underwriter shall cease to maintain a secondary market in the
Bonds, whichever occurs first, the Issuer will deliver to the
Underwriter the annual statements of compliance and the annual
independent auditor's servicing reports furnished to the
Issuer or the Trustee pursuant to the Servicing Agreement or
the Indenture, as applicable, as soon as such statements and
reports are furnished to the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the
Issuer will furnish to the Underwriter (i) as soon as
available, a copy of each report of the Issuer filed with the
SEC under the Exchange Act, or mailed to holders of the Bonds,
(ii) a copy of any filings with the New Hampshire Public
Utilities Commission ("NHPUC") pursuant to the Finance Order,
including, but not limited to, any annual or more frequent
adjustment filings, and (iii) from time to time, any
information concerning the Company or the Issuer, as the
Underwriter may reasonably request.
(ix) To the extent, if any, that any rating necessary
to satisfy the condition set forth in Section 6(l) of this
Agreement is conditioned upon the furnishing of documents or
the taking of other actions by the Issuer on or after the
Closing Date, the Issuer shall furnish such documents and take
such other actions.
(b) Covenants of the Company. The Company covenants and agrees
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with the Underwriter that, to the extent that the Issuer has not
already performed such act pursuant to Section 5(a):
(i) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. The
Company will use its best efforts to prevent the issuance by
the SEC of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) The Company will cause the proceeds from the
sale of the RRB Property to be applied for the purposes
permitted by the Finance Order and described in the Prospectus
under the caption "Use of Proceeds."
(iii) Until 90 days after the date hereof, the Company
will not, without the written consent of the Underwriter,
offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any
asset-backed securities of a trust or other special purpose
vehicle (other than the Bonds).
(iv) So long as any of the Bonds are outstanding and
the Company is the Servicer, the Company will furnish to the
Underwriter (i) as soon as available,
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a copy of each report of the Issuer filed with the SEC under the
Exchange Act, or mailed to holders of the Bonds, (ii) a copy of any
filings with the NHPUC pursuant to the Finance Order, including, but not
limited to, any annual or more frequent adjustment filings, and (iii)
from time to time, any information concerning the Company or the Issuer,
as the Underwriter may reasonably request.
(v) To the extent, if any, that any rating necessary to satisfy
the condition set forth in Section 6(l) of this Agreement is
conditioned upon the furnishing of documents or the taking of other
actions by the Company on or after the Closing Date, the Company shall
furnish such documents and take such other actions.
(vi) If, at any time when a prospectus relating to the Bonds is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include 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 were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company at the Issuer's expense promptly will (i)
prepare and file with the SEC, subject to the second sentence of
paragraph (a)(i) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(ii) supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
6. Conditions to the Obligations of the Underwriter. The obligation of
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the Underwriter to purchase the Bonds shall be subject to the accuracy of the
representations and warranties on the part of the Issuer and the Company
contained herein as of the Execution Time and the Closing Date and on the part
of the Company contained in Article 3 of the Sale Agreement and in Section 6.01
of the Servicing Agreement as of the Closing Date, to the accuracy of the
statements of the Issuer and the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Issuer and the Company of their
obligations hereunder to be performed on or prior to the Closing Date and to the
following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriter agrees in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM (Eastern Daylight Time), on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM
(Eastern Daylight Time) on such date, or (ii) 12:00 Noon (Eastern Daylight
Time) on the business day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM (Eastern
Daylight Time) on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
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suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Underwriter shall have received opinions of counsel for the
Company, portions of which may be delivered by Day, Xxxxx & Xxxxxx LLP, outside
counsel for the Company, portions of which may be delivered by Xxxx, Xxxxx and
Xxxxxxxxxx, Professional Association, outside counsel for the Company, and
portions of which may be delivered by in-house counsel for the Company, as the
Underwriter may agree, each dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that:
(i) the Company is a validly existing corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized and has all requisite corporate power and authority to own its
properties, conduct its business as described in the Registration Statement
and the Prospectus, and to execute, deliver and perform its obligations
under this Agreement, the Sale Agreement, the Servicing Agreement and the
Administration Agreement;
(ii) the Sale Agreement, the Servicing Agreement and the
Administration Agreement have been duly authorized, executed and delivered
by, and constitute legal, valid and binding instruments enforceable
against, the Company in accordance with their terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws or
equitable principles affecting creditors' rights generally from time to
time in effect); this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its affiliates or challenging the Finance Order or the collection of the
RRB Charges or the use and enjoyment of RRB Property under the Statute of a
character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or the Final Prospectus, or to be
filed as an exhibit to the Registration Statement, which is not described
or filed as required;
(iv) no consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained by the Company for
the consummation of the transactions contemplated herein, except such as
have been obtained in accordance with New Hampshire RSA Chapter 369-B (the
"Statute"), the NHPUC Regulations (as defined in Section 1.01 of the
Servicing Agreement), the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act") and the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Bonds by the Underwriter and such other approvals
(specified in such opinion) as have been obtained;
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(v) neither the execution and delivery of this Agreement, the
Sale Agreement, the Servicing Agreement, the Administration Agreement
nor the consummation of the transactions contemplated by this
Agreement, the Sale Agreement, the Servicing Agreement or the
Administration Agreement nor the fulfillment of the terms of this
Agreement, the Sale Agreement, the Servicing Agreement or the
Administration Agreement by the Company, will (A) conflict with,
result in any breach of any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under
the articles of incorporation, bylaws or other organizational
documents of the Company, or conflict with or breach any of the
material terms or provisions of, or constitute (with or without
notice or lapse of time) a default under, any indenture, material
agreement or other material instrument to which the Company is a
party or by which the Company is bound, (B) result in the creation or
imposition of any lien upon any properties of the Company pursuant to
the terms of any such indenture, agreement or other instrument (other
than as contemplated by the Basic Documents and RSA 369-B:7), or (C)
violate any New Hampshire or federal law or any order, rule or
regulation applicable to the Company of any New Hampshire or federal
court or regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company, or any of its
properties; and
(vi) upon the delivery of the fully executed Sale Agreement to
the Issuer and the payment of the purchase price of the RRB Property
by the Issuer to the Seller pursuant to the Sale Agreement, then (A)
the transfer of the RRB Property by the Seller to the Issuer pursuant
to the Sale Agreement conveys the Seller's right, title and interest
in the RRB Property to the Issuer and will be treated under the laws
of the State of New Hampshire as an absolute transfer of all of the
Seller's right, title, and interest in the RRB Property, other than
for federal and state income tax purposes, (B) such transfer of the
RRB Property is perfected within the meaning of RSA 369-B:6, VI, (C)
assuming that the Issuer does not have notice or knowledge of any
conflicting assignment of the RRB Property, such transfer has
priority over any other assignment or transfer of the RRB Property,
and (D) the RRB Property is free and clear of all liens created prior
to its transfer to the Issuer pursuant to the Sale Agreement; the
Seller's first mortgage indenture explicitly excludes accounts
receivables and contracts from its lien and, therefore, the RRB
Property is not subject to such lien; and
(vii) no further action with respect to the recording or filing
of the Sale Agreement, any agreements supplemental thereto, any
financing statements, any continuation statements, or any other
documents or filings will be necessary prior to January __, 2003, to
perfect the transfer of the RRB Property by the Company to the Issuer
pursuant to the Sale Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New Hampshire or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriter and (B) as to matters of fact, to the extent deemed proper,
12
on certificates of responsible officers of the Company. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Underwriter shall have received opinions of counsel for the Issuer
and the Company, portions of which may be delivered by Day, Xxxxx & Xxxxxx LLP,
outside counsel for the Issuer and the Company, portions of which may be
delivered by Xxxx, Xxxxx and Xxxxxxxxxx, Professional Association, outside
counsel for the Issuer and the Company, and portions of which may be delivered
by in-house counsel, as the Underwriter may agree, and portions of which may be
delivered by Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the
Issuer, each dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter, to the effect that:
(i) the Issuer has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the State of
Delaware, with all necessary limited liability company power and authority
to execute, deliver and perform its obligations under this Agreement, the
Sale Agreement, the Servicing Agreement, the Indenture, this Agreement, the
Administration Agreement, the Fee and Indemnity Agreement and the Bonds and
is registered as a foreign limited liability company and is in good
standing in the State of New Hampshire;
(ii) the Sale Agreement, the Servicing Agreement, the Indenture,
the Administration Agreement and the Fee and Indemnity Agreement have been
duly authorized, executed and delivered by, and constitute legal, valid and
binding instruments enforceable against, the Issuer in accordance with
their terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws or equitable principles affecting creditors'
rights generally from time to time in effect); and the Bonds have been duly
authorized and when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriter in accordance with the terms of this Agreement, will constitute
legal, valid and binding obligations of the Issuer entitled to the benefits
of the Indenture (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws or equitable principles affecting
creditors' rights generally from time to time in effect); this Agreement
has been duly authorized, executed and delivered by the Issuer;
(iii) to the extent described in the Final Prospectus, the Sale
Agreement, the Servicing Agreement, the Indenture, the Administration
Agreement, the Fee and Indemnity Agreement, the LLC Agreement and the Bonds
conform to the descriptions thereof contained therein;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act;
(v) to the knowledge of such counsel, after having made inquiry of
officers of the Issuer, but without having made any other investigation,
there is no pending or threatened action, suit or proceeding before any
court or governmental
13
agency, authority or body or any arbitrator involving the Issuer or
challenging the Bonds, the Finance Order, the settlement order issued by
the NHPUC on September 8, 2000 (the "Settlement Order") or the collection
of the RRB Charge or the use and enjoyment of RRB Property under the
Statute of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document relating to the Issuer,
the Bonds, the Statute or the Finance Order of a character required to be
described in the Registration Statement or Final Prospectus, or to be filed
as an exhibit to the Registration Statement, which is not described or
filed as required; and the statements included in the Final Prospectus
under the headings "Risk Factors--Bondholders could experience payment
delays or losses as a result of amendment, repeal or invalidation of the
securitization statute or breach of the state pledge," "Energy Deregulation
and New Market Structure in New Hampshire," (to the extent the Statute, the
Finance Order, the Settlement Order, the Agreement to Settle PSNH
Restructuring between the Governor of New Hampshire, the Company, the NHPUC
and the other parties named therein, dated August 2, 1999, and such
agreement as revised and conformed in compliance with NHPUC Order No.
23,549 (together, the "Settlement Agreement") are discussed), "The Issuer,"
"Servicing" (to the extent the Servicing Agreement or the Finance Order is
described), "Description of the Bonds," "The Seller and Servicer" (other
than under the subheading "Billing and Collections," as to which such
counsel need express no opinion), "Description of the RRB Property," "ERISA
Considerations" and "Risk Factors - Bankruptcy and Creditors' Rights
Issues" (read together with "Description of the RRB Property - Bankruptcy
and Creditors' Rights Issues"), to the extent that they constitute matters
of New Hampshire or federal law or legal conclusions with respect thereto,
fairly summarize the matters described therein;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial
statements including the notes thereto or other financial data contained in
the Final Prospectus as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel shall confirm, on the basis of certain
assumptions, that at the Effective Date no facts have come to such
counsel's attention which would cause such counsel to believe that the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that the Final Prospectus as
of its date and the Closing Date includes any untrue statement of a
material fact or omits to state a material fact
14
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than the
financial statements including the notes thereto and other financial
data contained in the Final Prospectus as to which such counsel need
express no opinion);
(vii) no consent, approval, authorization or order of any New
Hampshire, Delaware or federal court or governmental agency or body is
required to be obtained by the Issuer for the issuance of the Bonds or
the consummation by the Issuer of the transactions contemplated herein,
except such as have been obtained under the Statute, the NHPUC
Regulations, the 1935 Act and the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Bonds by the Underwriter and such other
approvals (specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of this Agreement, the
Sale Agreement, the Servicing Agreement, the Indenture, the
Administration Agreement or the Fee and Indemnity Agreement, nor the
issuance and sale of the Bonds, nor the consummation of the transactions
contemplated by this Agreement, the Sale Agreement, the Servicing
Agreement, the Indenture, the Administration Agreement or the Fee and
Indemnity Agreement, nor the fulfillment of the terms of this Agreement,
the Sale Agreement, the Servicing Agreement, the Indenture, the
Administration Agreement or the Fee and Indemnity Agreement by the
Issuer, will (A) conflict with, result in any breach of any of the terms
or provisions of, or constitute (with or without notice or lapse of
time) a default under the LLC Agreement of the Issuer, or conflict with
or breach any of the material terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument known to such counsel and to
which the Issuer is a party or by which the Issuer is bound, (B) result
in the creation or imposition of any lien upon any properties of the
Issuer pursuant to the terms of any such indenture, agreement or other
instrument (other than as contemplated by the Basic Documents and RSA
369-B:7), or (C) violate any New Hampshire, Delaware or federal law or
any order, rule or regulation applicable to the Issuer of any New
Hampshire, Delaware or federal court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Issuer, or any of its properties;
(ix) the Issuer is not, and after giving effect to the offering
and sale of the Bonds and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company"
or under the "control" of an "investment company" as such terms are
defined under the Investment Company Act of 1940, as amended;
(x) the Finance Order expressly states each and every one of the
conditions set forth in RSA 369-B:3, IV (b), and the Finance Order
includes a finding by the NHPUC that the Finance Order is consistent
with each of such stated conditions, and therefore, in accordance with
RSA 369-B:3, V, the Finance Order is deemed to be authorized by, and
issued pursuant to, the Statute; the
15
failure to realize the factual predicates of any of such
stated conditions subsequent to the issuance of the Bonds
shall not adversely affect the Bonds, the Indenture, the RRB
Property, the other Collateral, or the protection of
Bondholder rights;
(xi) (A) under RSA 369-B:7, II, the provisions of the
Indenture create in favor of the Trustee to secure payment of
the Secured Obligations a security interest in all right,
title and interest, whether now owned or hereafter acquired,
of the Issuer in the RRB Property; (B) the Finance Order
authorizes the RRB Charge included in the RRB Property; (C)
the aforesaid security interest in the RRB Property under the
Indenture has attached to the RRB Property or (in the case of
any after acquired property) will attach as it comes into
existence; (D) financing statements which describe the RRB
Property by reference to the Finance Order have been presented
for filing in the offices of the Secretary of the State of New
Hampshire and the Clerk of the City of Manchester, New
Hampshire, and all filing fees required in connection
therewith have been paid, in accordance with Part 4 of Article
9 of the New Hampshire UCC; and (E) such security interest in
the RRB Property granted by the Issuer under the Indenture is
valid and enforceable against the Issuer, and is perfected or
(in the case of any after acquired property) will be valid,
enforceable and perfected as such property comes into
existence, subject in each case to (x) the rights of any third
parties holding security interests in the RRB Property
perfected in the manner described in RSA 369-B:7 prior to
perfection by filing of the security interest granted under
the Indenture (which is addressed in paragraph (xv) below) and
(y) rights arising under the first priority lien arising under
RSA 369-B:7, VIII described in paragraph (xii) below);
(xii) (A) the Statute creates a Statutory Lien on the
RRB Property securing all obligations, then existing or
subsequently arising, to the holders of the Bonds in respect
of the Bonds and all Secured Obligations, then existing or
subsequently arising, to the Trustee in its capacity as such;
(B) such Statutory Lien is valid, perfected and enforceable
against the Issuer and all third parties without any further
public notice; and (C) the Statute provides that conflicting
Statutory Liens on RRB Property arising under RSA 369-B:7,
VIII rank in order of time of perfection;
(xiii) (A) the provisions of the Indenture create in
favor of the Trustee a security interest in the right, title
and interest, whether now owned or hereafter acquired, of the
Issuer in respect of the Collateral; (B) such security
interest will attach to the Collateral as it comes into
existence; (C) financing statements which describe the
Collateral have been presented for filing in the offices of
the Secretary of the State of New Hampshire and the Clerk of
the City of Manchester, New Hampshire, and all filing fees
required in connection therewith have been paid in accordance
with Article 9 of the New Hampshire UCC; and (D) such security
interest in the Sale Agreement, the Servicing Agreement, the
Administration Agreement and all accounts, general
intangibles, equipment and inventory (as such terms are
defined in the New Hampshire UCC) of the Issuer and all other
Collateral in which a security interest can be perfected by
the filing
16
of financing statements in New Hampshire under the New Hampshire
UCC (collectively, the "UCC Collateral") granted by the Issuer
under the Indenture is valid and enforceable against the Issuer
and is perfected or (in the case of after acquired property) will
be valid, enforceable and perfected as such property comes into
existence, subject in each case to the rights of any third
parties holding security interests in the UCC Collateral
perfected in the manner described in Article 9 of the New
Hampshire UCC prior to perfection by filing of the security
interest therein granted under the Indenture (which is addressed
in paragraph (xv) below);
(xiv) the provisions of the Indenture create in favor of
the Trustee a security interest in the Collection Account
(including all subaccounts thereof) and all amounts on deposit
therein and all investments credited thereto in accordance with
the provisions of the Indenture; to the extent that (A) the
Collection Account (including all subaccounts thereof) is either
(i) established and maintained as a "securities account" within
the meaning of the New Hampshire UCC, as contemplated by Section
6.17 of the Indenture, or (ii) is not such a securities account
but is an Eligible Deposit Account, as required by Section
8.02(a) of the Indenture, and (B) all amounts from time to time
on deposit in the Collection Account that are invested (x) are
invested in Eligible Investments made by the Trustee in its name
and credited to the Collection Account, as contemplated by
Sections 6.17 and 8.02 of the Indenture, and (y) if any such
Eligible Investments are deposit accounts, such deposit accounts
are maintained in New Hampshire, the security interest in the
Collection Account and all amounts on deposit therein and all
investments credited thereto granted to the Trustee under the
Indenture will be a perfected security interest; if amounts on
deposit in the Collection Account are invested in Eligible
Investments that are deposit accounts maintained outside of New
Hampshire, the validity and perfection of the Trustee's security
interest therein will be governed by the law of the state in
which such accounts are maintained;
(xv) the Search Reports set forth the proper filing
offices and the proper debtor names necessary to identify those
Persons who under the New Hampshire and Delaware Uniform
Commercial Code or the Statute might have on file effective
financing statements against the Company or the Issuer covering
the Collateral (including the RRB Property), or a portion
thereof; the Search Reports identify no Person who has filed in
any of such filing offices a financing statement describing the
Collateral (including the RRB Property), or a portion thereof;
(xvi) (A) the Finance Order has been duly issued and
authorized by the NHPUC and the Finance Order, giving effect to
the Issuance Advice Letter, is effective; (B) the Issuer is a
"financing entity" under RSA 369-B:2, VI and the Bonds are "rate
reduction bonds" under RSA 369-B:2, X; (C) the Bonds are entitled
to the protections provided in the Statute and the Finance Order;
(D) the Finance Order is no longer subject to appeal by any
person in state courts of the State of New Hampshire; and (E) the
Servicer is authorized to file through the
17
legal final maturity date periodic RRB Charge adjustments to the
extent necessary to ensure the timely recovery of revenues
sufficient to provide for the payment of an amount equal to the
sum of the periodic Bond payment requirements for the upcoming
adjustment period, which includes indemnity obligations under the
Basic Documents, subject to the limitation on the Company's
"stranded cost recovery charge" described in RSA 369-B:3,
IV(b)(9);
(xvii) the Statute does not violate the United States
Constitution or the Constitution of the State of New Hampshire in
any way that would have a material adverse effect on the Bonds,
the Indenture, the RRB Property, the other Collateral or the
protection of Bondholder rights;
(xviii) under the Taking Clause of the United States
Constitution, the State of New Hampshire in the exercise of its
executive, administrative or legislative powers, could not repeal
or amend the Statute or the Finance Order or take any other
action in contravention of its pledge contained in RSA 369-B:6,
II without paying just compensation to the Bondholders, as
determined by a court of competent jurisdiction, if doing so
would constitute a permanent appropriation of a substantial
property interest of the Bondholders in the RRB Property and
deprive the Bondholders of their reasonable expectations arising
from their investments in the Bonds;
(xix) absent a demonstration that a deprivation is
necessary to accomplish a legitimate public purpose, under the
takings clauses of the New Hampshire Constitution, the State of
New Hampshire, in the exercise of its executive, administrative
or legislative powers, could not repeal or amend the
Securitization Statute or the Finance Order or take any other
action in contravention of the pledge contained in RSA 369-B:6,
II without paying just compensation to the Bondholders, as
determined by a court of competent jurisdiction, if doing so
would constitute a permanent appropriation of a substantial
property interest of the Bondholders in the RRB Property and
deprive the Bondholders of their reasonable expectations arising
from their investments in the Bonds;
(xx) under the Contracts Clauses of the United States and
New Hampshire Constitutions, absent a demonstration by the State
of New Hampshire that an impairment is narrowly-tailored and is
necessary to advance an important public interest, such as
responding to the concerns of a "great public calamity," the
State of New Hampshire could not repeal or amend the Statute or
take any legislative action, or refuse to take any legislative
action required of the State of New Hampshire under its pledge
contained in RSA 369-B:6, II with the Bondholders, if such repeal
or amendment, or such action or inaction, would substantially
impair the rights of the Bondholders;
(xxi) with the possible exception of the business profits
tax imposed under the provisions of RSA Chapter 77-A and the
business enterprise tax
18
imposed under the provisions of RSA Chapter 77-E, the Issuer is
not subject to any other taxes imposed by the State of New
Hampshire;
(xxii) the descriptions of those material federal and New
Hampshire tax consequences to holders of the Bonds contained in
the Final Prospectus under "Federal Income Tax Consequences" and
"New Hampshire Taxation of Bondholders" are accurate in all
material respects;
(xxiii) the New Hampshire Constitution prohibits enactment
of law pursuant to voter initiatives or referenda on a ballot in
any election in the State of New Hampshire;
(xxiv) RSA 369-B:9 provides that the Statute is severable;
the invalidation of any provision of the Statute that is not
integral or essential to the Bonds, the Indenture, the RRB
Property and the protection of Bondholder rights would not cause
the invalidation of any provision of the Statute that is integral
or essential to the Bonds, the Indenture, the RRB Property and
the protection of Bondholder rights;
(xxv) any attempt by the State of New Hampshire (the
"State"), the NHPUC or any other agency or instrumentality of the
State to repeal or amend the Statute or the Finance Order or to
take other action in a manner that substantially impairs the
rights of the Bondholders would be subject to preliminary
injunction if a New Hampshire court hearing a request therefor
finds (i) that the party requesting such injunctive relief has a
likelihood of success on the merits, (ii) that such party will
suffer irreparable harm if the preliminary injunctive relief is
not granted, (iii) that no adequate, alternative remedy at law
exists and (iv) that the issuance of such injunctive relief would
not adversely affect the public interest; further, upon final
adjudication of the challenged repeal, amendment or other action,
the alleged wrongful conduct would be subject to a permanent
injunction if the petitioning party succeeds on the merits and
the court hearing a request therefor makes the findings set forth
in clauses (ii) through (iv); and
(xxvi) no further action with respect to the recording or
filing of the Indenture, any indentures supplemental thereto, any
financing statements, any continuation statements, or any other
documents or filings will be necessary prior to January __, 2003,
to perfect the security interest in the RRB Property, the other
Collateral as defined in the Indenture, and the proceeds thereof
created by the Indenture in favor of the Trustee.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New Hampshire, the State of Delaware or the United States, to
the extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriter and (B) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Issuer and public officials.
19
References to the Final Prospectus in this paragraph (c) include any
supplements thereto at the Closing Date.
(d) The Underwriter shall have received opinions of counsel to
the Trustee, portions of which may be delivered by Xxxxxxxx Ronon
Xxxxxxx & Xxxxx, LLP, counsel to the Trustee, and portions of which
may be delivered by Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the
Trustee, each dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriter, to the effect that:
(i) the Trustee is validly existing as a state banking
institution in good standing under the laws of the State of New
York;
(ii) the Trustee has the requisite power (including
corporate trust power) and authority to execute and deliver the
Indenture, and the Indenture has been duly authorized, executed
and delivered, and constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws or equitable principles affecting creditors' rights
generally from time to time in effect); and
(iii) the Bonds have been duly authenticated by the Trustee.
(e) The Underwriter shall have received from Xxxxxx, Xxxxxxxxxx
& Sutcliffe LLP, counsel for the Underwriter, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Bonds, the Indenture, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the
Company and the Issuer shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Underwriter shall have received a certificate of the
Issuer, signed by an officer of the Issuer, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus, any supplement to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Issuer in
this Agreement and in the Indenture are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Issuer has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Issuer's knowledge,
threatened; and
(iii) since the dates as of which information is given in
the Final Prospectus (including any supplement thereto), there
has been no material adverse change in (x) the condition
(financial or other), earnings, business or properties of
20
the Issuer, whether or not arising from transactions in the
ordinary course of business, or (y) the RRB Property, except as
set forth in or contemplated in the Final Prospectus (including
any supplement thereto).
(g) The Underwriter shall have received a certificate of the
Company, signed by an executive officer of the Company, dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement, the Sale Agreement and the Servicing Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the dates as of which information is given in
the Final Prospectus (including any supplement thereto), there
has been no material adverse change in (x) the condition
(financial or other), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, or
(y) the RRB Property, except as set forth in or contemplated in
the Final Prospectus (including any supplement thereto).
(h) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Underwriter (i) a letter or letters (which may refer
to letters previously delivered to the Underwriter), dated as of the
Closing Date, in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder, that they consent to the inclusion of
their report on the audited financial statements of the Issuer and the
reference to them as experts under the heading "Experts" in the Basic
Prospectus and the Final Prospectus, and stating in effect that they
have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Company and the Issuer) set forth in the Registration Statement and
the Final Prospectus, including information specified by the
Underwriter and set forth under the captions "Prospectus Summary,"
"Description of the RRB Property," "The Seller and Servicer" and
"Description of the Bonds" in the Final Prospectus, agrees with the
accounting records of the Company and the Issuer, excluding any
questions of legal interpretation, and (ii) the opinion or certificate,
dated as of the Closing Date, in form and substance satisfactory to the
Underwriter, satisfying the requirements of Section 2.10(g) of the
Indenture.
21
References to the Final Prospectus in this paragraph (h) include
any supplement thereto at the date of the letter.
In addition, at the Execution Time, Xxxxxx Xxxxxxxx LLP shall
have furnished to the Underwriter a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the Underwriter,
to the effect set forth above.
(i) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(including any supplement thereto), there shall not have been any
change, or any development involving a prospective change, in or
affecting either (i) the business, properties or financial condition of
the Company or the Issuer or (ii) the RRB Property, the Bonds, the
Finance Order, the Settlement Order or the Statute, the effect of which
is, in the judgment of the Underwriter, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Bonds as contemplated by the Registration Statement
(including any amendment thereof) and the Final Prospectus (including
any supplement thereto).
(j) The Underwriter shall have received on the Closing Date an
opinion letter or letters of Day, Xxxxx & Xxxxxx LLP, counsel to the
Company and the Issuer, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter that, should the Company
become the debtor in case under the United States Bankruptcy Code, (i)
the transfer to the Issuer of the Company's right, title and interest
in and to the RRB Property and the proceeds thereof as set forth in the
Sale Agreement would constitute an absolute sale of such assets by the
Company to the Issuer, so that (a) such RRB Property (including the
collections thereon) would not be property of the bankruptcy estate of
the Company under Section 541(a) of the Bankruptcy Code, (b) the
bankruptcy court would not compel the turnover of such RRB Property or
the proceeds thereof to the Company under Section 542 of the Bankruptcy
Code, and (c) the Issuer's rights in the RRB Property and the proceeds
thereof would not be impaired by the operation of Section 362(a) of the
Bankruptcy Code; and (ii) neither the Issuer nor its assets and
liabilities would be substantively consolidated with the assets and
liabilities of the Company.
(k) The Underwriter shall have received on the Closing Date an
opinion letter or letters of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel to the Issuer, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriter, to the effect
that: (i) if properly presented to a Delaware court, a Delaware court
applying Delaware law, would conclude that (x) in order for a person to
file a voluntary bankruptcy petition on behalf of the Issuer, the
affirmative vote of the Issuer's Sole Member (as defined the LLC
Agreement) and the affirmative vote of all of the Directors (including
the Independent Directors (as defined in the LLC Agreement)), as
provided in Section 2.07(b) of the LLC Agreement of the Issuer, is
required, and (y) such provision, contained in Section 2.07(b) of the
LLC Agreement, that requires the affirmative vote of the Issuer's Sole
Member and the affirmative vote of all of the Directors (including the
Independent Directors) in order for a person to file a voluntary
bankruptcy petition on behalf of the Issuer, constitutes a legal, valid
and binding agreement of the Sole Member
22
and is enforceable against the Sole Member, in accordance with its
terms; (ii) the LLC Agreement constitutes a legal, valid and binding
agreement of the Sole Member thereunder, and is enforceable against the
Sole Member in accordance with its terms; (iii) under the provisions of
Article 9 of the Delaware UCC ("Delaware Article 9"), the security
interest in the RRB Property, the other Collateral, and the proceeds
thereof created by the Indenture in favor of the Trustee is perfected;
(iv) the UCC search report described in such opinion sets forth the
proper filing office(s) and the proper debtors necessary to identify
those persons who under Delaware Article 9 have on file financing
statements against the Issuer covering the RRB Property, the other
Collateral, or the proceeds thereof as of the search date set forth in
such UCC search report; the UCC search report identifies no person who
has filed with the filing offices set forth in such UCC search report a
financing statement describing the RRB Property, the other Collateral,
or the proceeds thereof prior to the search date set forth in such UCC
search report; and (v) no further action with respect to the recording
or filing of the Indenture, any indentures supplemental thereto, any
financing statements, any continuation statements, or any other
documents or filings will be necessary under Delaware Article 9 prior
to January __, 2003, to perfect the security interest in the RRB
Property, the other Collateral, and the proceeds thereof created by the
Indenture in favor of the Trustee.
(l) The Bonds shall have been rated in the highest long-term
rating category by each of the Rating Agencies.
(m) On or prior to the Closing Date, the Company shall have
delivered to the Underwriter evidence, in form and substance reasonably
satisfactory to the Underwriter, (i) that appropriate filings have been
made in accordance with the Statute and other applicable law to perfect
the transfer of the RRB Property by the Company to the Issuer pursuant
to the Sale Agreement, including any necessary filings with the NHPUC
and the filing of the UCC financing statements in the office of the
Secretary of the State of New Hampshire, and (ii) that appropriate
filings have been made in accordance with the Statute and applicable
law to perfect the security interest in the RRB Property, the other
Collateral, and the proceeds thereof created by the Indenture in favor
of the Trustee, including any necessary filings with the NHPUC and the
filing of the UCC financing statements in the office of the Secretary
of the State of New Hampshire and the office of the Secretary of State
of the State of Delaware.
(n) On or prior to the Closing Date, the Issuer shall have
delivered to the Underwriter copies of the UCC search reports referred
to in Sections 6 (c)(xv), and 6 (k)(iv) of this Agreement, along with
copies of all filings referenced in such search reports.
(o) On or prior to the Closing Date, the Issuer shall have
delivered to the Underwriter copies, certified to the satisfaction of
the Underwriter, of the NHPUC's issuance of the Finance Order relating
to the RRB Property and the Issuance Advice Letter.
(p) On or prior to the Closing Date, the Issuer and the Company
shall have furnished or caused to be furnished to the State Treasurer
copies of the certificates,
23
opinions and documents required to be delivered to the Underwriter
under this Agreement, including being included as an addressee of, or
receiving a letter entitling the State Treasurer to rely on, each legal
opinion addressed to the rating agencies or the parties to the
transactions and each related certificate, if any, other than the
opinion of counsel for the Underwriter.
(q) Prior to the Closing Date, the Issuer and the Company shall
have furnished to the Underwriter such further information,
certificates, opinions and documents as the Underwriter may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder may
be canceled at, or at any time prior to, the Closing Date by the Underwriter.
Notice of such cancellation shall be given to the Issuer in writing or by
telephone or electronic mail confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Day, Xxxxx & Xxxxxx, Hartford, Connecticut, on the
Closing Date.
7. Expenses. Upon the sale of the Bonds, the Issuer will pay or
--------
cause to be paid all costs and expenses incident to the performance of the
obligations of the Company, the Issuer and the Underwriter hereunder and under
the Basic Documents and of the office of the State Treasurer in accordance with
the Statute, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issuance and delivery of the Bonds to
the Underwriter, all fees, disbursements and expenses of the Company's, the
Issuer's, the State Treasurer's and the Underwriter's counsel and accountants,
and the State Treasurer's financial advisors, all costs and expenses incident to
the preparation, printing and filing of the Registration Statement (including
all exhibits thereto), any preliminary prospectus, the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus and any amendments thereof or
supplements thereto, all costs and expenses incurred in connection with blue sky
qualifications, examining the legality of the Bonds for the investment and the
rating of the Bonds, all costs and expenses of the Trustee, all costs and
expenses incurred in the acquisition or preparation of documents required to be
delivered by the Company or the Issuer in connection with the closing of the
transactions contemplated hereby, all costs and expenses required in connection
with any filing with the National Association of Securities Dealers in
connection with the transactions contemplated hereby, and all costs and expenses
of the printing and distribution of all documents in connection with the Bonds.
If the sale of the Bonds provided for herein is not consummated
because any condition to the obligations of the Underwriter set forth in Section
6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company or the Issuer to perform any agreement herein or comply with any
provision hereof other than by reason of a default by the Underwriter, the
Company and the Issuer will, jointly and severally, reimburse the Underwriter
upon demand for all out-of-pocket
24
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by the Underwriter in connection with the proposed purchase
and sale of the Bonds.
8. Indemnification and Contribution.
--------------------------------
(a) The Company and the Issuer will, jointly and severally,
indemnify and hold harmless the Underwriter , the directors, officials,
officers, members, consultants, counsel, employees and agents of the
State Treasurer and the State of New Hampshire, the Underwriter and
each person who controls the Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement for the registration of the Bonds as originally filed or in
any amendment thereof, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, any untrue statement or
alleged untrue statement of a material fact contained in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that neither the
-------- -------
Company nor the Issuer will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Issuer or the
Company by or on behalf of the Underwriter specifically for inclusion
therein. This indemnity agreement will be in addition to any liability
which the Company and the Issuer may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, the Issuer, the State Treasurer and the State of New
Hampshire, each of their directors, officials and employees, each of
their officers (if any) who signs the Registration Statement, and each
person who controls the Company or the Issuer within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Issuer to the Underwriter, but only
with reference to written information relating to the Underwriter
furnished to the Issuer or the Company by or on behalf of the
Underwriter specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition
to any liability which the Underwriter may otherwise have. The Issuer
and the Company acknowledge that the statements set forth in the second
full paragraph, the third sentence of the fourth full paragraph and the
fifth full paragraph under the heading "Underwriting" and the third
full paragraph (other than the last sentence thereof) under the heading
"Plan of Distribution" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only
25
information furnished in writing by or on behalf of the Underwriter for
inclusion in the documents referred to in the foregoing indemnity, and you, as
the Underwriter, confirm that such statements are correct in all material
respects.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Issuer
and the Underwriter agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Issuer and one or
more of the Underwriter may be subject in
26
such proportion as is appropriate to reflect the relative benefits
received by the Company, Issuer and the Underwriter, respectively, from
the offering of the Bonds. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company, the Issuer and the Underwriter shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, the Issuer and of the
Underwriter in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. In no case shall the Underwriter (except as may be
provided in any agreement among underwriters relating to the offering
of the Bonds) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Bonds purchased
by the Underwriter hereunder. The relative benefits received by the
Company or the Issuer shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) of the Bonds,
and benefits received by the Underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company, the Issuer or
the Underwriter. The Company, the Issuer and the Underwriter agree that
it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as the Underwriter, and each person who controls the
Issuer or the Company within the meaning of either the Act or the
Exchange Act, each officer of the Issuer or the Company who shall have
signed the Registration Statement and each director of the Issuer or
the Company shall have the same rights to contribution as the Issuer or
the Company, subject in each case to the applicable terms and
conditions of this paragraph.
9. [Reserved].
--------
10. Termination. This Agreement shall be subject to termination
-----------
in the absolute discretion of the Underwriter, by notice given to the Company
and the Issuer prior to delivery of and payment for the Bonds, if prior to such
time there shall have occurred (i) any change, or any development involving a
prospective change, in or affecting (A) the business, properties or financial
condition of the Company or the Issuer, (B) the RRB Property, the Bonds, the
Finance Order or the Statute, the effect of which, in the judgment of the
Underwriter, materially impairs the investment quality of the Bonds or makes it
impractical or inadvisable to market the Bonds; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange;
(iii) a suspension or material limitation in trading in the securities of the
Company; (iv) a general moratorium on commercial banking activities shall have
been declared either by Federal, New York state or New Hampshire state
authorities; or (v) any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war or other calamity or crisis the effect of which on financial
27
markets is such as to make it, in the judgment of the Underwriter, impracticable
or inadvisable to proceed with the offering or delivery of the Bonds as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, the Issuer or its officers and of the Underwriter set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter
or of the Company, the Issuer or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Bonds. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder shall be in English
-------
and in writing, and any such notice, direction, consent or waiver may be given
by United States mail, courier service, facsimile transmission or electronic
mail (confirmed by telephone, United States mail or courier service in the case
of notice by facsimile transmission or electronic mail) or any other customary
means of communication, and any such notice, direction, consent or waiver shall
be effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid, and if sent to
the Underwriter, to it at the address specified on the first page hereto; and if
sent to the Company, to it at Public Service Company of New Hampshire, 0000 Xxx
Xxxxxx, X.X. Box 330, Manchester, New Hampshire 03105, Attention: Assistant
Treasurer - Finance; and if sent to the Issuer, to it at PSNH Funding LLC 0,
0000 Xxx Xxxxxx, X.X. Box 330, Manchester, New Hampshire 03105, Attention:
President. The parties hereto, by notice to the others, may designate additional
or different addresses for subsequent communications.
13. Successors. This Agreement will inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
--------------
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
16. Miscellaneous. Time shall be of the essence of this
-------------
Agreement. As used herein, the term "business day" shall mean any day when the
SEC's office in Washington, D.C. is open for business.
28
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Issuer and the Underwriter.
Very truly yours,
PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE
By: ______________________________
Name:
Title:
PSNH FUNDING LLC 2
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED
XXXXXXX XXXXX XXXXXX INC.,
as Underwriter
By: ________________________________
(Xxxxxxx Xxxxx Xxxxxx Inc.)
SCHEDULE I to the
Underwriting Agreement
Underwriting Agreement dated January __, 2002
Registration Statement No. 333-76040
Underwriter:
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Title: PSNH Funding LLC 2
$__________ PSNH Funding LLC Bonds, Series 2002-1
Principal amount, Price to Public, Underwriting Discounts and Commissions and
Proceeds to Issuer:
Total Principal Price to Public Underwriting Proceeds to Scheduled Final Maturity
Amount of Class --------------- Discounts and Issuer Maturity Date
--------------- Communities ----------- Date --------------
------------- ---------
Per Class A $__________ __________% __________% __________% __________ __________
Bond
Original Issue Discount (if any): $__________
Redemption provisions: Optional Redemption and Mandatory
Redemption as set forth in Article X of
the Indenture
Closing Date, Time and Location: January __, 2002
9:00 a.m., Eastern Daylight Time
Hartford, Connecticut
Type of Offering: Non-Delayed Offering
3
SCHEDULE II to the
Underwriting Agreement
Class A
Underwriter Bonds
------------------------------------------------- -------------
Xxxxxxx Xxxxx Xxxxxx Inc. $__________
-------------
Total............................................ $__________
=============
4
