MP ENVIRONMENTAL FUNDING LLC MP RENAISSANCE FUNDING, LLC MONONGAHELA POWER COMPANY $[ ] SERIES A SENIOR SECURED SINKING FUND ENVIRONMENTAL CONTROL BONDS UNDERWRITING AGREEMENT
Exhibit
1.1
MP
RENAISSANCE FUNDING, LLC
MONONGAHELA
POWER COMPANY
$[ ]
SERIES A SENIOR
SECURED SINKING FUND ENVIRONMENTAL CONTROL BONDS
[_______________],
2007
To
the
Representative Named in Schedule I
Hereto
of the
Several Underwriters
Named
in
Schedule II hereto
Ladies
and Gentlemen:
1. Introduction.
MP Environmental Funding LLC, a Delaware limited liability company (the
“Issuer”),
proposes to issue and sell $[__________] aggregate principal amount of its
Series A Senior Secured Sinking Fund Environmental Control Bonds (the
“Bonds”),
identified in Schedule
I
hereto.
The Issuer’s direct parent is MP Renaissance Funding, LLC, a special purpose
Delaware limited liability company (“MP
Renaissance”)
established to hold and convey to the Issuer certain environmental control
property (as more fully described in the Financing Order relating to the Bonds,
the “Environmental
Control Property”).
MP
Renaissance is a wholly-owned subsidiary of Monongahela Power Company, an Ohio
corporation (“Mon
Power”).
The
Issuer, Mon Power and MP Renaissance hereby confirm their agreement with the
several Underwriters (as defined below) as set forth herein.
The
term
“Underwriters”
as
used
herein shall be deemed to mean the entity or several entities named in
Schedule
II
hereto
and any underwriter substituted as provided in Section 8 hereof and the term
“Underwriter”
shall
be deemed to mean any one of such Underwriters. If the entity or entities listed
in Schedule
I
hereto
(the “Representatives”)
are
the same as the entity or entities listed in Schedule
II
hereto,
then the terms “Underwriters”
and
“Representatives”,
as
used herein, shall each be deemed to refer to such entity or entities. All
obligations of the Underwriters hereunder are several and not joint. If more
than one entity is named in Schedule
I
hereto,
any action under or in respect of this underwriting agreement (“Underwriting
Agreement”)
may be
taken by such entities jointly as the Representatives or by one of the entities
acting on behalf of the Representatives and such action will be binding upon
all
the Underwriters.
Capitalized
terms used and not otherwise defined in this Underwriting Agreement shall have
the meanings given to them in the Indenture (as defined below).
2. Description
of the Bonds.
The Bonds will be issued pursuant to an indenture to be dated as of
[______________], 2007, as supplemented by one or more series supplemental
thereto (as so supplemented, the “Indenture”),
between the Issuer and U.S. Bank National Association, as indenture trustee
(the
“Indenture
Trustee”).
Mon
Power will transfer the Environmental Control Property to MP Renaissance
pursuant to the Environmental Control Property Transfer Agreement, to be dated
on or about [_____________], 2007, between MP Renaissance and Mon Power (the
“Transfer
Agreement”).
The
Bonds will be obligations of the Issuer and will be supported by the transferred
Environmental Control Property (“Transferred
Environmental Control Property”),
to be
sold to the Issuer by MP Renaissance pursuant to the Transferred Environmental
Control Property Sale Agreement, to be dated on or about [_____________], 2007,
between MP Renaissance and the Issuer (the “Sale
Agreement”).
The
Transferred Environmental Control Property will be serviced pursuant to the
Transferred Environmental Control Property Servicing Agreement, to be dated
on
or about [____________], 2007, between Mon Power, as servicer, and the Issuer,
as owner of the Transferred Environmental Control Property sold to it pursuant
to the Sale Agreement (the “Servicing
Agreement”).
3. Representations
and Warranties of the Issuer.
The Issuer represents and warrants to the several Underwriters
that:
(a) The
Issuer and the Bonds meet the requirements for the use of Form S-1 under the
Securities Act of 1933, as amended (the “Securities
Act”),
and
the Issuer has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement on such form on January 5, 2007 (Registration No.
333-139820), as amended by Amendment No. 1 thereto dated January 12, 2007 and
Amendment No. 2 thereto dated [__________], 2007, including a form of
prospectus, for the registration under the Securities Act of up to $[__________]
aggregate principal amount of the Bonds. Such registration statement, as amended
(“Registration
Statement No. 333-139820”),
has
been declared effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Issuer, threatened by the Commission. No environmental control bonds registered
with the Commission under the Securities Act pursuant to Registration Statement
No. 333-139820 have been previously issued. References herein to the term
“Registration
Statement”
shall
be deemed to refer to Registration Statement No. 333-139820, including any
amendment thereto, and any information in a prospectus or a prospectus
supplement deemed or retroactively deemed to be a part thereof pursuant to
Rule
430A (“Rule
430A”)
or
Rule 430C (“Rule
430C”)
under
the Securities Act that has not been superseded or modified. “Registration
Statement” without reference to a time means the Registration Statement as of
the Applicable Time (as defined below), which the parties agree is the time
of
the first Contract of Sale (as used in Rule 159 under the Securities Act) for
the Bonds, and shall be considered the “Effective
Date”
of
the
Registration Statement relating to the Bonds. For purposes of this definition,
information contained in a form of prospectus or prospectus supplement that
is
deemed retroactively to be a part of the Registration Statement pursuant to
Rule
430A or Rule 430C, shall be considered to be included in the Registration
Statement as of the time specified in Rule 430A or Rule 430C, as appropriate.
The final prospectus and the final prospectus supplement relating to the Bonds,
as filed with the Commission pursuant to Rule 424(b) under the Securities Act
(“Rule
424(b)”),
are
referred to herein as the “Final
Prospectus;”
and
the most recent preliminary prospectus and
2
prospectus
supplement that omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) and that was used
after the initial effectiveness of the Registration Statement and prior to
the
Applicable Time (as defined below) is referred to herein as the “Pricing
Prospectus.”
The
Issuer is not, and at the time of filing the Registration Statement was not,
an
“ineligible issuer” as defined under Rule 405 of the Securities Act
(“Rule
405”).
(b) (i)
At the earliest time after the filing of the Registration Statement that the
Issuer or another offering participant made a bona
fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of the Bonds
and
(ii) at the date hereof, the Issuer was not and is not an “ineligible
issuer,” as defined in Rule 405.
(c) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether by post-effective amendment, incorporated report or
form
of prospectus) and on the Effective Date relating to the Bonds, the Registration
Statement, and the Indenture, at the Closing Date (as defined below), fully
complied and will fully comply in all material respects with the applicable
requirements of the Securities Act, the Trust Indenture Act of 1939 (the
“Trust
Indenture Act”)
and,
in each case, the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement, at each of the aforementioned
dates, did not and will not include any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they were
made, not misleading. As of the Applicable Time (as defined below) and as of
the
Closing Date, the Registration Statement and the Final Prospectus fully complied
and will fully comply in all material respects with the applicable requirements
of the Securities Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder, and neither of such documents includes
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, in the light of the circumstances in which they were made, not
misleading; provided that the foregoing representations and warranties in this
paragraph (c) shall not apply to statements or omissions made in reliance upon
information furnished in writing to the Issuer or Mon Power by, or on behalf
of,
any Underwriter through the Representatives expressly for use in connection
with
the preparation of the Registration Statement or the Final Prospectus or to
any
statements in or omissions from any Statements of Eligibility on Form T-1 (or
amendments thereto) of the Indenture Trustee filed as exhibits to the
Registration Statement or to any statements or omissions made in the
Registration Statement or the Final Prospectus relating to The Depository Trust
Company (“DTC”)
Book-Entry System that are based solely on information contained in published
reports of the DTC.
(d) As
of its
date, at the Applicable Time (as defined below) and on the date of its filing,
if applicable, and on the Closing Date, the Pricing Prospectus and each Issuer
Free Writing Prospectus (as defined below) (other than the Pricing Term Sheet,
as defined in Section 6(b) below), considered together, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
in
which they were made, not misleading (except that (i) the principal amount
of
the Bonds, the tranches, the initial principal balances, the scheduled final
payment dates, the final maturity dates, the expected average lives, and the
Expected Sinking Fund Schedule described in
3
the
Pricing Prospectus supersede any previously issued descriptions of such
information and (ii) the interest rate, price to the public and underwriting
discounts and commissions for each tranche was not included in the Pricing
Prospectus). The Pricing Term Sheet, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Bonds,
considered together with the Pricing Prospectus and each other Issuer Free
Writing Prospectus, did not include any untrue statement of a material fact
or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstance in which they are made, not
misleading. The two preceding sentences do not apply to statements in or
omissions from the Pricing Prospectus, the Pricing Term Sheet or any other
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Issuer or Mon Power by any Underwriter through
the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information set forth in Schedule
IV
hereto.
“Issuer
Free Writing Prospectus”
means
any “issuer free writing prospectus,” as defined in Rule 433(h) under the
Securities Act, relating to the Bonds, in the form filed or required to be
filed
with the Commission or, if not required to be filed, in the form retained in
the
Issuer’s records pursuant to Rule 433(g) under the Securities Act. References to
the term “Free
Writing Prospectus”
shall
mean a free writing prospectus, as defined in Rule 405. References to the term
“Applicable
Time”
mean
[
], eastern time, on the date hereof, except that if, subsequent to such
Applicable Time, the Issuer, Mon Power and the Underwriters have determined
that
the information contained in the Pricing Prospectus or any Issuer Free Writing
Prospectus issued prior to such Applicable Time included an untrue statement
of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances in which they were
made, not misleading and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Bonds, then
“Applicable Time” will refer to the first of such times when such new purchase
contracts are entered into. The Issuer represents, warrants and agrees that
it
has treated and agrees that it will treat each of the free writing prospectuses
listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Free Writing Prospectus
has fully complied and will fully comply with the applicable requirements of
Rule 164 (“Rule
164”)
and
Rule 433 (“Rule
433”)
under
the Securities Act, including timely Commission filing where required, legending
and record keeping.
(e) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the Closing Date or until any earlier date that Mon Power, MP
Renaissance or the Issuer notified or notifies the Representatives as described
in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information then contained
in the Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or development as
a
result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement or included
or
would include an untrue statement of a material fact or omitted or would omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances prevailing at that subsequent time, not misleading,
(i) Mon Power, MP Renaissance or the Issuer has promptly notified or will
promptly notify the Representatives and (ii) Mon Power, MP Renaissance or
the Issuer has promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing
4
Prospectus
in reliance upon and in conformity with written information furnished to Mon
Power, MP Renaissance or the Issuer by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information set forth on Schedule
IV
hereto.
(f) The
Issuer has been duly formed and is validly existing as a limited liability
company in good standing under the Limited Liability Company Act of the State
of
Delaware, as amended, with full limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
the Bonds, the Sale Agreement, the Servicing Agreement, the Indenture, the
Issuer Administration Agreement and the other agreements and instruments
contemplated by the Pricing Prospectus (collectively, the “Issuer
Documents”)
and to
own its properties and conduct its business as described in the Pricing
Prospectus; the Issuer has been duly qualified as a foreign limited liability
company for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts
any
business so as to require such qualification, except where failure to so qualify
or to be in good standing would not have a material adverse effect on the
business, properties or financial condition of the Issuer; the Issuer has
conducted and will conduct no business in the future that would be inconsistent
with the description of the Issuer’s business set forth in the Pricing
Prospectus; the Issuer is not a party to or bound by any agreement or instrument
other than the Issuer Documents and other agreements or instruments incidental
to its formation; the Issuer has no material liabilities or obligations other
than those arising out of the transactions contemplated by the Issuer Documents
and as described in the Pricing Prospectus; MP Renaissance is the beneficial
owner of all of the limited liability company interests of the Issuer; and
based
on current law, the Issuer is not classified as an association taxable as a
corporation for United States federal income tax purposes.
(g) The
issuance and sale of the Bonds by the Issuer, the purchase of the Transferred
Environmental Control Property by the Issuer from MP Renaissance and the
consummation of the transactions herein contemplated by the Issuer, and the
fulfillment of the terms hereof on the part of the Issuer to be fulfilled,
will
not result in a breach of any of the terms or provisions of, or constitute
a
default under the Issuer’s certificate of formation or the Issuer LLC Agreement
(collectively, the “Issuer
Formation Documents”),
or
any indenture, mortgage, deed of trust or other agreement or instrument to
which
the Issuer is now a party.
(h) This
Underwriting Agreement has been duly authorized, executed and delivered by
the
Issuer, which has the necessary limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
and constitutes a valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity (including
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law; and
limitations on enforceability of rights to indemnification or contribution
by
federal or state securities laws or regulations or by public
policy.
(i) The
Issuer (i) is not in violation of the Issuer Formation Documents,
(ii) is not in default and no event has occurred which, with notice or
lapse of time or both, would
5
constitute
such a default, in the due performance or observance of any term, covenant
or
condition contained in any indenture, mortgage, deed of trust or other agreement
or instrument to which it is a party or by which it is bound or to which any
of
its properties is subject, except for any such defaults that would not,
individually or in the aggregate, have a material adverse effect on its
business, property or financial condition, and (iii) is not in violation of
any law, ordinance, governmental rule, regulation or court decree to which
it or
its property may be subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on its
business, property or financial condition.
(j) The
Indenture has been duly authorized by the Issuer, and, on the Closing Date,
will
have been duly executed and delivered by the Issuer and will be a valid and
binding instrument, enforceable against the Issuer in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to
or
affecting creditors’ or secured parties’ rights generally and by general
principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law; and limitations on enforceability of rights to indemnification
by federal or state securities laws or regulations or by public policy. On
the
Closing Date, the Indenture will (i) comply as to form in all material
respects with the requirements of the Trust Indenture Act and (ii) conform
in all material respects to the description thereof in the Pricing Prospectus
and Final Prospectus.
(k) The
Bonds
have been duly authorized by the Issuer for issuance and sale to the
Underwriters pursuant to this Underwriting Agreement and, when executed by
the
Issuer and authenticated by the Indenture Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms of this Underwriting Agreement, will constitute valid
and binding obligations of the Issuer entitled to the benefits of the Indenture
and enforceable against the Issuer in accordance with their terms, except as
the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting
creditors’ or secured parties’ rights generally and by general principles of
equity (including concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at
law;
and limitations on enforceability of rights to indemnification by federal or
state securities laws or regulations or by public policy, and the Bonds conform
in all material respects to the description thereof in the Pricing Prospectus
and Final Prospectus. The Issuer has all requisite limited liability company
power and authority to issue, sell and deliver the Bonds in accordance with
and
upon the terms and conditions set forth in this Underwriting Agreement and
in
the Pricing Prospectus and Final Prospectus.
(l) Other
than as set forth or contemplated in the Pricing Prospectus, there is no
litigation or governmental proceeding to which the Issuer is a party or to
which
any property of the Issuer is subject or which is pending or, to the knowledge
of the Issuer, threatened against the Issuer that would reasonably be expected
to, individually or in the aggregate, result in a material adverse effect on
the
Issuer’s business, property or financial condition.
(m) Other
than any necessary action of the PSCWV, any filings required under the Statute
or the Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except
6
such
as
have been already obtained and other than in connection or in compliance with
the provisions of applicable blue-sky laws or securities laws of any state,
as
to which the Issuer makes no representations or warranties), is legally required
for the issuance and sale by the Issuer of the Bonds.
(n) The
Issuer is not, and, after giving effect to the sale and issuance of the Bonds,
will not be, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “1940
Act”).
(o) Each
of
the Sale Agreement, the Servicing Agreement and the Issuer Administration
Agreement has been duly authorized by the Issuer, and when executed and
delivered by the Issuer and the other parties thereto, will constitute a valid
and legally binding obligation of the Issuer, enforceable against the Issuer
in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law, and limitations on
enforceability of rights to indemnification by federal or state securities
laws
or regulations or by public policy.
4. Representations
and Warranties of Mon Power.
Mon Power represents and warrants to the several Underwriters that:
(a) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act
(whether by post effective amendment, incorporated report or form of prospectus)
and on the Effective Date relating to the Bonds, the Registration Statement,
and
the Indenture, on the Closing Date, fully complied and will fully comply in
all
material respects with the applicable requirements of the Securities Act, the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder; the Registration Statement, at each of the aforementioned dates,
did
not and will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they were made,
not misleading. As of the Applicable Time and as of the Closing Date, the
Registration Statement and the Final Prospectus fully complied and will fully
comply in all material respects to the requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder, and neither of such documents includes 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, in the light of the
circumstances in which they were made, not misleading; provided, that the
foregoing representations and warranties in this paragraph (a) shall not apply
to statements or omissions made in reliance upon and in conformity with
information furnished in writing to Mon Power, MP Renaissance or the Issuer
by,
or on behalf of, any Underwriter through the Representatives expressly for
use
in connection with the preparation of the Registration Statement or the Final
Prospectus, or to any statements in or omissions from any Statement of
Eligibility on Form T 1, or amendments thereto, of the Indenture Trustee filed
as exhibits to the Registration Statement or to any statements or omissions
made
in the Registration
7
Statement
or Final Prospectus relating to the DTC Book-Entry-Only System that are based
solely on information contained in published reports of DTC.
(b) As
of its
date, at the Applicable Time, on the date of its filing, if applicable, and
on
the Closing Date, the Pricing Prospectus and each Issuer Free Writing Prospectus
(other than the Pricing Term Sheet), considered together, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
in
which they were made, not misleading (except that (i) the principal amount
of the Bonds, the tranches, the initial principal balances, the scheduled final
payment dates, the final maturity dates, the expected average lives, and the
Expected Sinking Fund Schedule described in the Pricing Prospectus supersede
any
previously issued descriptions of such information and (ii) the interest
rate, price to the public and underwriting discounts and commissions for each
tranche was not included in the Pricing Prospectus). The Pricing Term Sheet,
as
of its issue date and at all subsequent times through the completion of the
public offer and sale of the Bonds, considered together with the Pricing
Prospectus and each other Issuer Free Writing Prospectus, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
in
which they were made, not misleading. The two preceding sentences do not apply
to statements in or omissions from the Pricing Prospectus, the Pricing Term
Sheet or any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to Mon Power, MP Renaissance or the Issuer
by
any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information set forth in Schedule
IV
hereto.
Mon Power represents, warrants and agrees that it has treated and agrees that
it
will treat each of the free writing prospectuses listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing
Prospectus has fully complied and will fully comply with the applicable
requirements of Rule 164 and Rule 433, including timely Commission filing where
required, legending and record keeping
(c) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Bonds or until any
earlier date that Mon Power, MP Renaissance or the Issuer notified or notifies
the Representatives as described in the next sentence, did not, does not and
will not include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there occurred
or
occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then contained
in
the Registration Statement or included or would include an untrue statement
of a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (i) Mon Power, MP
Renaissance or the Issuer has promptly notified or will promptly notify the
Representatives and (ii) Mon Power, MP Renaissance or the Issuer has
promptly amended or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements in or omissions from
any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to Mon Power, MP Renaissance or the Issuer by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such
8
information
furnished by any Underwriter consists of the information set forth on
Schedule
IV
hereto.
(d) Mon
Power
has been duly formed and is validly existing as a corporation in good standing
under the laws of the State of Ohio, has the corporate power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
the Servicing Agreement, the Transfer Agreement and the other agreements and
instruments contemplated by the Pricing Prospectus (collectively, the
“Mon
Power Documents”)
and to
own, lease and operate its properties and to conduct its business as presently
conducted and as set forth in or contemplated by the Pricing Prospectus, and
is
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except
where
the failure to so qualify or be in good standing would not have a material
adverse effect on the business, property or financial condition of Mon Power
and
its subsidiaries considered as a whole; Mon Power has conducted its business
in
a manner that is not inconsistent with the description of Mon Power’s business
in the Pricing Prospectus. Mon Power is the beneficial owner of all of the
limited liability company interests of the MP Renaissance and such interests
are
owned free and clear of all liens, encumbrances, equities or
claims.
(e) Mon
Power
has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation
S-X under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(f) The
conveyance by Mon Power of the Environmental Control Property to MP Renaissance
and the consummation of the transactions herein contemplated by Mon Power,
and
the fulfillment of the terms hereof on the part of Mon Power to be fulfilled,
will not result in a breach of any of the terms or provisions of, or constitute
a default under, Mon Power’s articles of incorporation or bylaws (collectively,
the “Mon
Power Charter Documents”),
or in
a material breach of any of the terms of, or constitute a material default
under, any indenture, mortgage, deed of trust or other agreement or instrument
to which Mon Power is now a party.
(g) This
Underwriting Agreement has been duly authorized, executed and delivered by
Mon
Power, which has the necessary corporate power and authority to execute, deliver
and perform its obligations under this Underwriting Agreement, and constitutes
a
valid and binding obligation of Mon Power, enforceable against Mon Power in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law, and limitations on
enforceability of rights to indemnification or contribution by federal or state
securities laws or regulations or by public policy.
(h) Mon
Power
(i) is not in violation of Mon Power Charter Documents, (ii) is not in
default and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of trust
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its properties is subject, except for
9
any
such
defaults that would not, individually or in the aggregate, have a material
adverse effect on the business, property or financial condition of Mon Power
and
its subsidiaries considered as a whole, or (iii) is not in violation of any
law, ordinance, governmental rule, regulation or court decree to which it or
its
property may be subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
business, property or financial condition of Mon Power and its subsidiaries
considered as a whole.
(i) Except
as
set forth or contemplated in the Pricing Prospectus, there is no litigation
or
governmental proceeding to which Mon Power or any of its subsidiaries is a
party
or to which any property of Mon Power or any of its subsidiaries is subject
or
which is pending or, to the knowledge of Mon Power, threatened against Mon
Power
or any of its subsidiaries that would reasonably be expected to, individually
or
in the aggregate, result in a material adverse effect on the Issuer’s business,
property, or financial condition or on Mon Power’s ability to perform its
obligations under the Sale Agreement and the Servicing Agreement.
(j) Other
than any necessary action of the PSCWV, any filings required under the Statute
or Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except such as have been already obtained and other than in connection
or
in compliance with the provisions of applicable blue-sky laws or securities
laws
of any state, as to which Mon Power makes no representations or warranties),
is
legally required for the issuance and sale by the Issuer of the
Bonds.
(k) Neither
Mon Power, MP Renaissance nor the Issuer is, and after giving effect to the
sale
and issuance of the Bonds, neither Mon Power, MP Renaissance nor the Issuer
will
be, an “investment company” within the meaning of the 1940 Act.
(l) Each
of
the Transfer Agreement and the Servicing Agreement has been duly and validly
authorized by Mon Power, and when executed and delivered by Mon Power and the
other parties thereto each will constitute a valid and legally binding
obligation of Mon Power, enforceable against Mon Power in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting creditors’ or secured parties’ rights generally and by
general principles of equity (including concepts of materiality, reasonableness,
good faith and fair dealing), regardless of whether considered in a proceeding
in equity or at law, and limitations on enforceability of rights to
indemnification by federal or state securities laws or regulations or by public
policy.
(m) There
are
no West Virginia transfer taxes related to the transfer of the Environmental
Control Property or the Transferred Environmental Control Property or the
issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting
Agreement required to be paid at or prior to the Closing Date by Mon Power,
MP
Renaissance or the Issuer.
10
5. Representations
and Warranties of MP Renaissance.
MP Renaissance represents and warrants to the several Underwriters
that:
(a) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act
(whether by post effective amendment, incorporated report or form of prospectus)
and on the Effective Date relating to the Bonds, the Registration Statement,
and
the Indenture, on the Closing Date, fully complied and will fully comply in
all
material respects with the applicable requirements of the Securities Act, the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder; the Registration Statement, at each of the aforementioned dates,
did
not and will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they were made,
not misleading. As of the Applicable Time and as of the Closing Date, the
Registration Statement and the Final Prospectus fully complied and will fully
comply in all material respects to the requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder, and neither of such documents includes 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, in the light of the
circumstances in which they were made, not misleading; provided, that the
foregoing representations and warranties in this paragraph (a) shall not apply
to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Issuer or MP Renaissance by, or on
behalf of, any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the Final
Prospectus, or to any statements in or omissions from any Statement of
Eligibility on Form T 1, or amendments thereto, of the Indenture Trustee filed
as exhibits to the Registration Statement or to any statements or omissions
made
in the Registration Statement or Final Prospectus relating to the DTC
Book-Entry-Only System that are based solely on information contained in
published reports of DTC.
(b) As
of its
date, at the Applicable Time, on the date of its filing, if applicable, and
on
the Closing Date, the Pricing Prospectus and each Issuer Free Writing Prospectus
(other than the Pricing Term Sheet), considered together, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
in
which they were made, not misleading (except that (i) the principal amount
of the Bonds, the tranches, the initial principal balances, the scheduled final
payment dates, the final maturity dates, the expected average lives, and the
Expected Sinking Fund Schedule described in the Pricing Prospectus supersede
any
previously issued descriptions of such information and (ii) the interest
rate, price to the public and underwriting discounts and commissions for each
tranche was not included in the Pricing Prospectus). The Pricing Term Sheet,
as
of its issue date and at all subsequent times through the completion of the
public offer and sale of the Bonds, considered together with the Pricing
Prospectus and each other Issuer Free Writing Prospectus, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
in
which they were made, not misleading. The two preceding sentences do not apply
to statements in or omissions from the Pricing Prospectus, the Pricing Term
Sheet or any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Issuer or MP Renaissance by any
Underwriter through
11
the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information set forth in Schedule
IV
hereto.
MP Renaissance represents, warrants and agrees that it has treated and agrees
that it will treat each of the free writing prospectuses listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing
Prospectus has fully complied and will fully comply with the applicable
requirements of Rule 164 and Rule 433, including timely Commission filing where
required, legending and record keeping
(c) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Bonds or until any
earlier date that the Issuer or MP Renaissance notified or notifies the
Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with
the
information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of
a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (i) MP Renaissance or
the Issuer has promptly notified or will promptly notify the Representatives
and
(ii) MP Renaissance or the Issuer has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing two sentences do
not
apply to statements in or omissions from any Issuer Free Writing Prospectus
in
reliance upon and in conformity with written information furnished to the Issuer
or MP Renaissance by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information set forth on
Schedule
IV
hereto.
(d) MP
Renaissance has been duly formed and is validly existing as a limited liability
company in good standing under the Limited Liability Company Act of the State
of
Delaware, as amended, with full limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
the Transfer Agreement, the Sale Agreement, the MPR Administration Agreement
and
the other agreements and instruments contemplated by the Pricing Prospectus
(collectively, the “MPR
Documents”)
and to
own its properties and conduct its business as described in the Pricing
Prospectus; MP Renaissance has been duly qualified as a foreign limited
liability company for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where failure
to so qualify or to be in good standing would not have a material adverse effect
on the business, properties or financial condition of the MP Renaissance; MP
Renaissance has conducted and will conduct no business in the future that would
be inconsistent with the description of the MP Renaissance’s business set forth
in the Pricing Prospectus; MP Renaissance is not a party to or bound by any
agreement or instrument other than the MPR Documents and other agreements or
instruments incidental to its formation; the Issuer has no material liabilities
or obligations other than those arising out of the transactions contemplated
by
the MPR Documents and as described in the Pricing Prospectus; MP Renaissance
is
the beneficial owner of all of the limited liability company interests of the
Issuer and such interests
12
are
owned
free and clear of all liens, encumbrances, equities or claims; and based on
current law, the Issuer is not classified as an association taxable as a
corporation for United States federal income tax purposes.
(e) The
Issuer is the only subsidiary of MP Renaissance.
(f) The
sale
by MP Renaissance of the Transferred Environmental Control Property to the
Issuer and the consummation of the transactions herein contemplated by MP
Renaissance, and the fulfillment of the terms hereof on the part of MP
Renaissance to be fulfilled, will not result in a breach of any of the terms
or
provisions of, or constitute a default under, MP Renaissance’s certificate of
formation or limited liability company agreement (the “MPR
Charter Documents”),
or in
a material breach of any of the terms of, or constitute a material default
under, any indenture, mortgage, deed of trust or other agreement or instrument
to which MP Renaissance is now a party.
(g) This
Underwriting Agreement has been duly authorized, executed and delivered by
MP
Renaissance, which has the necessary limited liability company power and
authority to execute, deliver and perform its obligations under this
Underwriting Agreement, and constitutes a valid and binding obligation of MP
Renaissance, enforceable against MP Renaissance in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to
or
affecting creditors’ or secured parties’ rights generally and by general
principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law, and limitations on enforceability of rights to indemnification
or contribution by federal or state securities laws or regulations or by public
policy.
(h) MP
Renaissance (i) is not in violation of the MPR Charter Documents,
(ii) is not in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties is subject, except
for
any such defaults that would not, individually or in the aggregate, have a
material adverse effect on the business, property or financial condition of
MP
Renaissance and its subsidiaries considered as a whole, or (iii) is not in
violation of any law, ordinance, governmental rule, regulation or court decree
to which it or its property may be subject, except for any such violations
that
would not, individually or in the aggregate, have a material adverse effect
on
the business, property or financial condition of MP Renaissance and its
subsidiaries considered as a whole.
(i) Except
as
set forth or contemplated in the Pricing Prospectus, there is no litigation
or
governmental proceeding to which MP Renaissance or any of its subsidiaries
is a
party or to which any property of MP Renaissance or any of its subsidiaries
is
subject or which is pending or, to the knowledge of MP Renaissance, threatened
against MP Renaissance or any of its subsidiaries that would reasonably be
expected to, individually or in the aggregate, result in a material adverse
effect on the Issuer’s business, property, or financial condition or on
MP
13
Renaissance’s
ability to perform its obligations under the Transfer Agreement or the Sale
Agreement.
(j) Other
than any necessary action of the PSCWV, any filings required under the Statute
or Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except such as have been already obtained and other than in connection
or
in compliance with the provisions of applicable blue-sky laws or securities
laws
of any state, as to which MP Renaissance makes no representations or
warranties), is legally required for the issuance and sale by the Issuer of
the
Bonds.
(k) MP
Renaissance is not, and after giving effect to the sale and issuance of the
Bonds, will not be, an “investment company” within the meaning of the 1940
Act.
(l) Each
of
the Transfer Agreement, the Sale Agreement and the MPR Administration Agreement
has been duly and validly authorized by MP Renaissance, and when executed and
delivered by MP Renaissance and the other parties thereto will constitute a
valid and legally binding obligation of MP Renaissance, enforceable against
MP
Renaissance in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity (including
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law, and
limitations on enforceability of rights to indemnification by federal or state
securities laws or regulations or by public policy.
(m) There
are
no West Virginia transfer taxes related to the transfer of the Transferred
Environmental Control Property or the issuance and sale of the Bonds to the
Underwriters pursuant to this Underwriting Agreement required to be paid at
or
prior to the Closing Date by MP Renaissance or the Issuer.
6. Investor
Communications.
(a) The
Issuer, MP Renaissance and Mon Power represent and agree that, unless they
obtain the prior consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior consent of the Issuer, MP
Renaissance and Mon Power and the Representatives, it has not made and will
not
make any offer relating to the Bonds that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” required to be filed by the Issuer, MP Renaissance or Mon Power, as
applicable, with the Commission or retained by the Issuer, MP Renaissance or
Mon
Power, as applicable, under Rule 433; provided that the prior written consent
of
the parties hereto shall be deemed to have been given in respect of the Term
Sheets and each other Free Writing Prospectus identified in Schedule
III
hereto.
(b) Mon
Power, MP Renaissance and the Issuer (or the Representatives at the direction
of
the Issuer) will prepare a final pricing term sheet relating to the Bonds (the
“Pricing
Term Sheet”),
containing only information that describes the final pricing terms of the Bonds
and otherwise in a form consented to by the Representatives, and will file
such
final pricing term
14
sheet
within the period required by Rule 433(d)(5)(ii) under the Securities Act
following the date such final terms have been established for all classes of
the
offering of the Bonds. The Pricing Term Sheet is an Issuer Free Writing
Prospectus for purposes of this Agreement.
(c) Each
Underwriter may provide to investors one or more of the Free Writing
Prospectuses, including the Term Sheets, subject to the following
conditions:
(i) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Securities Act, an Underwriter shall not convey or deliver any
Written Communication (as defined herein) to any person in connection with
the
initial offering of the Bonds, unless such Written Communication (i) is
made in reliance on Rule 134 under the Securities Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430A, (iii) is an Issuer
Free Writing Prospectus listed on Schedule
III
hereto
or (iv) is an Underwriter Free Writing Prospectus (as defined below).
“Written Communication” has the same meaning as that term is defined in Rule
405. An “Underwriter Free Writing Prospectus” means any free writing prospectus
that contains only preliminary or final terms of the Environmental Control
Bonds
and is not required to be filed by Mon Power or the Issuer pursuant to Rule
433
and that contains information substantially the same as the information
contained in the Pricing Prospectus or Pricing Term Sheet (including, without
limitation, (i) the class, size, rating, price, CUSIPs, coupon, yield, spread,
benchmark, status and/or legal maturity date of the Bonds, the weighted average
life, expected first and final payment dates, trade date, settlement date,
transaction parties, credit enhancement, roadshow details, ERISA eligibility,
legal investment status and payment window of one or more classes of Bonds
and
(ii) a column or other entry showing the status of the subscriptions for the
Bonds, both for the Bonds as a whole and for each Underwriter’s retention,
and/or expected pricing parameters of the Bonds).
(ii) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses and Term Sheets, including but not
limited to Rule 164 and Rule 433.
(iii) All
Free
Writing Prospectuses provided to investors, whether or not filed with the
Commission, shall bear a legend including substantially the following
statement:
THE
ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND
THE OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING XXXXX ON THE
SEC
WEB SITE AT XXX.XXX.XXX.
15
ALTERNATIVELY,
THE ISSUER, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE BASE PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8_________ OR EMAILING _________ AT __________________.
The
Issuer and the Representatives shall have the right to require additional
specific legends or notations to appear on any Free Writing Prospectus, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein with the approval of,
in
the case of the Issuer, Representatives and, in the case of the Representatives,
the Issuer (which in either case shall not be unreasonably
withheld).
(iv) Each
Underwriter covenants with the Issuer, Mon Power and MP Renaissance that after
the Final Prospectus is available such Underwriter shall not distribute any
written information concerning the Bonds to an investor unless such information
is preceded or accompanied by the Final Prospectus or by notice to the investor
that the Final Prospectus is available for free by visiting XXXXX on the SEC
website at xxx.xxx.xxx.
(v) Each
Underwriter agrees and covenants that (a) no information that is conveyed
to investors has been or will be inconsistent with the information contained
in
the Registration Statement, the Pricing Prospectus and each Issuer Free Writing
Prospectus, and (b) if an Underwriter shall use an Underwriter Free Writing
Prospectus, the liability arising from its use shall be the sole responsibility
of the Underwriter using such Underwriter Free Writing Prospectus unless the
Underwriter Free Writing Prospectus was consented to in advance by Mon Power,
MP
Renaissance and the Issuer; provided, however, that, for the avoidance of doubt,
(i) this clause (v) shall not be interpreted as tantamount to the
indemnification obligations contained in Section 12(b) hereof and (ii) no
Underwriter shall be responsible for any “issuer information” as defined in Rule
433(h)(2) under the Securities Act giving rise to such Underwriter liability
provided by the Issuer, MP Renaissance or Mon Power for inclusion in the
Registration Statement, the Pricing Prospectus or any Issuer Free Writing
Prospectus or was otherwise previously provided by the Issuer, MP Renaissance
or
Mon Power to such Underwriter for use in such Underwriter Free Writing
Prospectus.
7. Purchase
and Sale.
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Issuer shall sell to each
of
the Underwriters, and each Underwriter shall purchase from the Issuer, at the
time and place herein specified, severally and not jointly, at the purchase
price set forth in Schedule
I
hereto,
the principal amount of the Bonds set forth opposite such Underwriter’s name in
Schedule
II
hereto.
The Underwriters agree to make a public offering of the Bonds. The Issuer shall
pay (in the form of a discount to the principal amount of the offered Bonds)
to
the Underwriters a commission equal to $[ ].
16
8. Time
and Place of Closing.
Delivery of the Bonds against payment of the aggregate purchase price therefor
by wire transfer in federal funds shall be made at the place, on the date and
at
the time specified in Schedule
I
hereto,
or at such other place, time and date as shall be agreed upon in writing by
the
Issuer and the Representatives. The hour and date of such delivery and payment
are herein called the “Closing
Date.”
The
Bonds shall be delivered to DTC or to [_______________], as custodian for DTC,
in fully registered global form registered in the name of Cede & Co., for
the respective accounts specified by the Representatives not later than the
close of business on the business day preceding the Closing Date or such other
time as may be agreed upon by the Representatives. The Issuer agrees to make
the
Bonds available to the Representatives for checking purposes not later than
[ ]
P.M. New York Time on the last business day preceding the Closing Date at the
place specified for delivery of the Bonds in Schedule
I
hereto,
or at such other place as the Issuer may specify.
If
any
Underwriter shall fail or refuse to purchase and pay for the aggregate principal
amount of Bonds that such Underwriter has agreed to purchase and pay for
hereunder, the Issuer shall immediately give notice to the other Underwriters
of
the default of such Underwriter, and the other Underwriters shall have the
right
within 24 hours after the receipt of such notice to determine to purchase,
or to
procure one or more others, who are members of the National Association of
Securities Dealers, Inc. (“NASD”)
(or,
if not members of the NASD, who are not eligible for membership in the NASD
and
who agree (i) to make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or residents therein
and
(ii) in making sales to comply with the NASD’s Conduct Rules) and
satisfactory to the Issuer, to purchase, upon the terms herein set forth, the
aggregate principal amount of Bonds that the defaulting Underwriter had agreed
to purchase. If any non-defaulting Underwriter or Underwriters shall determine
to exercise such right, such Underwriter or Underwriters shall give written
notice to the Issuer of the determination in that regard within 24 hours after
receipt of notice of any such default, and thereupon the Closing Date shall
be
postponed for such period, not exceeding three business days, as the Issuer
shall determine. If in the event of such a default no non-defaulting Underwriter
shall give such notice, then this Underwriting Agreement may be terminated
by
the Issuer, upon like notice given to the non-defaulting Underwriters, within
a
further period of 24 hours. If in such case the Issuer shall not elect to
terminate this Underwriting Agreement it shall have the right, irrespective
of
such default:
(a) to
require each non-defaulting Underwriter to purchase and pay for the respective
aggregate principal amount of Bonds that it had agreed to purchase hereunder
as
hereinabove provided and, in addition, the aggregate principal amount of Bonds
that the defaulting Underwriter shall have so failed to purchase up to aggregate
principal amount of Bonds equal to one tenth (1/10) of the aggregate principal
amount of Bonds that such non-defaulting Underwriter has otherwise agreed to
purchase hereunder, and/or
(b) to
procure one or more persons, reasonably acceptable to the Representatives,
who
are members of the NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales within the
United States, its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply with the
NASD’s Conduct Rules), to purchase, upon the terms herein set forth, either all
or a part of the aggregate principal amount of Bonds that such
17
defaulting
Underwriter had agreed to purchase or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the foregoing clause
(a).
In
the
event the Issuer shall exercise its rights under (a) and/or (b) above, the
Issuer shall give written notice thereof to the non-defaulting Underwriters
within such further period of 24 hours, and thereupon the Closing Date shall
be
postponed for such period, not exceeding three business days, as the Issuer
shall determine.
In
the
computation of any period of 24 hours referred to in this Section 8, there
shall
be excluded a period of 24 hours in respect of each Saturday, Sunday or legal
holiday that would otherwise be included in such period of time.
Any
action taken by the Issuer under this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Underwriting Agreement. Termination by the Issuer under this Section 8
shall be without any liability on the part of the Issuer, Mon Power, MP
Renaissance or any non-defaulting Underwriter, except as otherwise provided
in
Sections 9(a)(viii) and 12 hereof.
9. Covenants.
(a) Covenants
of the Issuer.
The Issuer covenants and agrees with the several Underwriters that:
(i) The
Issuer will upon request promptly deliver to the Representatives and Counsel
to
the Underwriters a signed copy of the Registration Statement as originally
filed
or, to the extent a signed copy is not available, a conformed copy, certified
by
an officer of the Issuer to be in the form as originally filed, including all
amendments thereto.
(ii) The
Issuer will deliver to the Underwriters, as soon as practicable after the date
hereof, as many copies of the Pricing Prospectus and the Final Prospectus as
they may reasonably request.
(iii) The
Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed
with the Commission pursuant to Rule 424 under the Securities Act (“Rule
424”)
as
soon as practicable and advise the Underwriters of any stop order suspending
the
effectiveness of the Registration Statement or the institution of any proceeding
therefor of which Issuer shall have received notice. The Issuer will use its
reasonable best efforts to prevent the issuance of any such stop order and,
if
issued, to obtain as soon as possible the withdrawal thereof. The Issuer has
complied and will comply with Rule 433 in connection with the offering of the
Bonds.
(iv) As
soon
as practicable, but not later than 12 months after the date hereof, the Issuer
will make generally available to its security holders, an earnings statement
(which need not be audited) that will satisfy the provisions of Section 11(a)
of
the Securities Act with respect to the Bonds.
18
(v) The
Issuer will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Bonds for offer and sale under the
blue-sky laws of such jurisdictions as the Representatives may designate;
provided that neither the Issuer, Mon Power nor MP Renaissance shall be required
to qualify as a foreign limited liability company or dealer in securities,
to
file any consents to service of process under the laws of any jurisdiction,
or
meet any other requirements deemed by the Issuer, Mon Power or MP Renaissance,
as applicable, to be unduly burdensome.
(vi) The
Issuer will not file any amendment to the Registration Statement or amendment
or
supplement to the Final Prospectus during the period when a prospectus relating
to the Bonds is required to be delivered under the Securities Act, without
prior
notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as
counsel for the Underwriters (“Counsel
for the Underwriters”),
shall
reasonably object by written notice to Mon Power and the Issuer.
(vii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act (“Rule
172”)),
any
event relating to or affecting the Issuer, the Bonds or the Transferred
Environmental Control Property or of which the Issuer shall be advised in
writing by the Representatives shall occur that in the Issuer’s reasonable
judgment after consultation with Counsel for the Underwriters should be set
forth in a supplement to, or an amendment of, the Final Prospectus in order
to
make the Final Prospectus not misleading in the light of the circumstances
when
it is delivered to a purchaser (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), the Issuer will, at its
expense, amend or supplement the Final Prospectus by either (A) preparing
and furnishing to the Underwriters at the Issuer’s expense a reasonable number
of copies of a supplement or supplements or an amendment or amendments to the
Final Prospectus or (B) making an appropriate filing pursuant to Section 13
or Section 15 of the Exchange Act, which will supplement or amend the Final
Prospectus so that, as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances when
the
Final Prospectus is delivered to a purchaser (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), not misleading;
provided that should such event relate solely to the activities of any of the
Underwriters, then such Underwriters shall assume the expense of preparing
and
furnishing any such amendment or supplement.
(viii) The
Issuer will, except as herein provided, pay or cause to be paid all expenses
and
taxes (except transfer taxes) in connection with (i) the preparation and
filing by it of the Registration Statement, Pricing Prospectus and Final
Prospectus, (ii) the issuance and delivery of the Bonds as provided in Section
8
hereof (including, without limitation, reasonable fees and disbursements of
Counsel for the Underwriters and all trustee, rating agency and PSCWV financial
advisor fees), (iii) the qualification of the Bonds under blue-sky laws,
(iv) the printing and delivery to the Underwriters of
19
reasonable
quantities of the Registration Statement, the Pricing Prospectus and Final
Prospectus and (v) any amendment or supplement to the Registration
Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to
be
filed with the Commission to correct any untrue statement of a material fact
or
omission of any statement necessary to make the statements therein, in the
light
of the circumstances in which they were made, not misleading, the result of
which requires the reforming of any contracts of sale of the Bonds made by
the
Underwriters (including any damages or other amounts payable in connection
with
legal and contractual liability). If this Underwriting Agreement shall be
terminated in accordance with the provisions of Section 11 or 13 hereof, the
Issuer shall not be required to pay any amount for any expenses of the
Underwriters or for any fees and expenses of counsel for the PSCWV financial
advisor, except that the Issuer will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not exceeding
$[__________], incurred in contemplation of the performance of this Underwriting
Agreement and will reimburse the Underwriters for the reasonable fees and
disbursements of Counsel for the Underwriters. The Issuer shall not in any
event
be liable to any of the several Underwriters for damages on account of loss
of
anticipated profits.
(ix) During
the period from the date of this Underwriting Agreement to the date that is
five
days after the Closing Date, the Issuer will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(x) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting 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.
(xi) For
a
period from the date of this Underwriting Agreement until the retirement of
the
Bonds or until such time as the Underwriters shall cease to maintain a secondary
market in the Bonds, whichever occurs first, the Issuer shall file with the
Commission, and to the extent permitted by and consistent with the Issuer’s
obligations under applicable law, make available on the website associated
with
the Issuer’s parent, such periodic reports, if any, as are required (without
regard to the number of holders of Bonds to the extent permitted by and
consistent with the Issuer’s obligations under applicable law) from time to time
under Section 13 or Section 15(d) of the Exchange Act, and the Issuer shall
not
voluntarily suspend or terminate its filing obligations with the Commission.
The
Issuer shall also, to the extent permitted by and consistent with the Issuer’s
obligations under applicable law, include in the periodic and other reports
to
be filed with the Commission as provided above, such information as required
by
Section 3.07(e) of the Indenture with respect to the Bonds. To the extent that
the Issuer’s obligations are terminated or limited by an amendment to Section
3.07(e) of the Indenture, or otherwise, such obligations shall be
correspondingly terminated or limited hereunder.
20
(xii) During
a
period of one year from the effective date of the Registration Statement, to
furnish to the Representatives (A) as soon as they are available, copies of
any
reports and financial statements of the Issuer furnished to or filed with the
Commission, other than such reports and financial statements that are publicly
available on the Commission’s XXXXX system; and (B) such additional information
concerning the business and financial condition of the Issuer as the
Representatives may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Issuer are consolidated in reports furnished to its shareholders generally
or to
the Commission).
(xiii) The
Issuer will file with the Commission such information on Form 10-D or Form
10-K
as may be required by Rule 463 under the Securities Act.
(xiv) If
the
Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule
462(b)”),
the
Issuer shall file a Rule 462(b) Registration Statement with the Commission
in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date
of
this Agreement, and the Issuer shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Securities Act.
(b) Covenants
of Mon Power.
Mon Power covenants and agrees with the several Underwriters that, to the extent
that the Issuer has not already performed such act pursuant to Section
9(a):
(i) To
the
extent permitted by applicable law and the agreements and instruments that
bind
Mon Power, Mon Power will use its reasonable best efforts to cause the Issuer
to
comply with the covenants set forth in Section 9(a) hereof.
(ii) Mon
Power
will use its reasonable best efforts to prevent the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
and, if issued, to obtain as soon as possible the withdrawal
thereof.
(iii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event relating to or affecting Mon Power, the Bonds or the
Transferred Environmental Control Property or of which Mon Power shall be
advised in writing by the Representatives shall occur that in Mon Power’s
reasonable judgment after consultation with Counsel for the Underwriters should
be set forth in a supplement to, or an amendment of, the Final Prospectus in
order to make the Final Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser, Mon Power will cause the
Issuer, at Mon Power’s or the Issuer’s expense, to amend or supplement the Final
Prospectus by either (A) preparing and furnishing to the Underwriters at Mon
Power’s or the Issuer’s expense a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Prospectus or (B) causing
the Issuer to make an appropriate
21
filing
pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement
or amend the Final Prospectus so that, as supplemented or amended, it will
not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances when the Final Prospectus is delivered to a purchaser, not
misleading; provided that should such event relate solely to the activities
of
any of the Underwriters, then such Underwriters shall assume the expense of
preparing and furnishing any such amendment or supplement.
(iv) During
the period from the date of this Underwriting Agreement to the date that is
five
days after the Closing Date, Mon Power will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(v) Mon
Power
will cause the proceeds for the issuance and sale of the Bonds to be applied
for
the purposes described in the Pricing Prospectus.
(vi) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting Agreement is conditioned upon the furnishing
of documents or the taking of other actions by Mon Power on or after the Closing
Date, Mon Power shall furnish such documents and take such other
actions.
(c) Covenants
of MP Renaissance.
MP Renaissance covenants and agrees with the several Underwriters that, to
the
extent that the Issuer has not already performed such act pursuant to Section
9(a):
(i) To
the
extent permitted by applicable law and the agreements and instruments that
bind
MP Renaissance, MP Renaissance will use its reasonable best efforts to cause
the
Issuer to comply with the covenants set forth in Section 9(a)
hereof.
(ii) MP
Renaissance will use its reasonable best efforts to prevent the issuance by
the
Commission of any stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the withdrawal
thereof.
(iii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event relating to or affecting MP Renaissance, the Bonds or the
Transferred Environmental Control Property or of which MP Renaissance shall
be
advised in writing by the Representatives shall occur that in MP Renaissance’s
reasonable judgment after consultation with Counsel for the Underwriters should
be set forth in a supplement to, or an amendment of, the Final Prospectus in
order to make the Final Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser, MP Renaissance will cause
the
Issuer, at MP Renaissance’s or the Issuer’s expense, to amend or supplement the
Final Prospectus by either (A) preparing and furnishing to the
22
Underwriters
at MP Renaissance’s or the Issuer’s expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final Prospectus
or (B) causing the Issuer to make an appropriate filing pursuant to Section
13
or Section 15 of the Exchange Act, which will supplement or amend the Final
Prospectus so that, as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances when
the
Final Prospectus is delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of the Underwriters,
then such Underwriters shall assume the expense of preparing and furnishing
any
such amendment or supplement.
(iv) During
the period from the date of this Underwriting Agreement to the date that is
five
days after the Closing Date, MP Renaissance will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(v) MP
Renaissance will cause the proceeds for the issuance and sale of the Bonds
to be
applied for the purposes described in the Pricing Prospectus.
(vi) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting Agreement is conditioned upon the furnishing
of documents or the taking of other actions by MP Renaissance on or after the
Closing Date, MP Renaissance shall furnish such documents and take such other
actions.
10. Conditions
to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Bonds shall be subject
to
the accuracy of the representations and warranties on the part of the Issuer,
MP
Renaissance and Mon Power contained in this Underwriting Agreement, on the
part
of Mon Power contained in Article III of the Transfer Agreement, on the part
of
MP Renaissance contained in Article III of the Sale Agreement, and on the part
of Mon Power contained in Section 5.01 of the Servicing Agreement as of the
Closing Date, to the accuracy of the statements of the Issuer, MP Renaissance
and Mon Power made in any certificates pursuant to the provisions hereof, to
the
performance by the Issuer, MP Renaissance and Mon Power of their obligations
hereunder, and to the following additional conditions:
(a) The
Final
Prospectus shall have been filed with the Commission pursuant to Rule 424 prior
to 5:30 P.M., New York time, on the second business day after the date of this
Underwriting Agreement. In addition, all material required to be filed by the
Issuer or Mon Power pursuant to Rule 433(d) under the Securities Act that was
prepared by either of them or that was prepared by any Underwriter and timely
provided to the Issuer or Mon Power shall have been filed with the Commission
within the applicable time period prescribed for such filing by such Rule
433(d).
(b) No
stop
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for that purpose shall be pending before, or
threatened by,
23
the
Commission on the Closing Date; and the Underwriters shall have received one
or
more certificates, dated the Closing Date and signed by an officer of Mon Power
and the Issuer, as appropriate, to the effect that no such stop order is in
effect and that no proceedings for such purpose are pending before, or to the
knowledge of Mon Power or the Issuer, as the case may be, threatened by, the
Commission.
(c) The
Issuer shall have complied with the provisions of Section 9(a)(ii) hereof with
respect to the furnishing of prospectuses.
(d) Xxx
Xxxxxx LLP, Counsel for the Underwriters, shall have furnished to the
Representatives their written opinion or opinions, dated the Closing Date,
in a
form or forms acceptable to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to render such opinion or opinions.
(e) Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for Mon Power and the
Issuer, shall have furnished to the Representatives their written opinion,
dated
the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(e)
and such
other matters as the Representatives may reasonably request.
(f) Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for Mon Power and the
Issuer, shall have furnished to the Representatives their written opinion,
dated
the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(f)
and such
other matters as the Representatives may reasonably request.
(g) [ ],
counsel for the
Issuer, MP Renaissance and Mon Power, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(g)
and such
other matters as the Representatives may reasonably request.
(h) [ ],
counsel for the
Issuer, MP Renaissance and Mon Power, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(h)
and such
other matters as the Representatives may reasonably request.
(i) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated
the
Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(i)
and such
other matters as the Representatives may reasonably request.
(j) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(j)
and such
other matters as the Representatives may reasonably request.
24
(k) Xxxxxxx
Xxxxx PLLC, counsel for the Issuer, MP Renaissance and Mon Power, shall have
furnished to the Representatives their written opinion, dated the Closing Date
and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(k)
and such
other matters as the Representatives may reasonably request.
(l) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(l)
and such
other matters as the Representatives may reasonably request.
(m) [ ],
[in-house counsel]
for Mon Power, MP Renaissance and the Issuer shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(m)
and such
other matters as the Representatives may reasonably request.
(n) [ ],
counsel
for the Issuer, MP Renaissance and Mon Power, shall have furnished to the
Representatives their written opinion, dated the Closing Date and in form and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(n)
and such
other matters as the Representatives may reasonably request.
(o) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(o)
and such
other matters as the Representatives may reasonably request.
(p) [ ],
counsel for the
Indenture Trustee, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(p)
and such
other matters as the Representatives may reasonably request.
(q) [ ],
counsel for
the
Issuer, MP Renaissance and Mon Power, shall have furnished to the
Representatives their written opinion, dated the Closing Date and in form and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(q)
and such
other matters as the Representatives may reasonably request.
(r) [ ],
counsel for
the
Issuer, MP Renaissance and Mon Power, shall have furnished to the
Representatives their written opinion, dated the Closing Date and in form and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(r)
and such
other matters as the Representatives may reasonably request.
(s) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(s)
and such
other matters as the Representatives may reasonably request.
25
(t) Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Issuer, MP
Renaissance and Mon Power, shall have furnished to the Representatives their
written opinion, dated the Closing Date and in form and substance reasonably
acceptable to the Representatives, addressing the matters set forth in
Exhibit
10(t)
and such
other matters as the Representatives may reasonably request.
(u) Xxxxxxx
Xxxxx PLLC, counsel for the Issuer, MP Renaissance and Mon Power, shall have
furnished to the Representatives their written opinion, dated the Closing Date
and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(u)
and such
other matters as the Representatives may reasonably request.
(v) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(v)
and such
other matters as the Representatives may reasonably request.
(w) Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP, counsel for the Issuer, MP Renaissance and
Mon Power, shall have furnished to the Representatives their written opinion,
dated the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(w)
and such
other matters as the Representatives may reasonably request.
(x) Pricewaterhouse
Coopers LLP shall have furnished to the Representatives on the date hereof
and
on the Closing Date, letters, the first dated the date hereof and the second
dated the Closing Date, each in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to
certain financial, accounting, and statistical information contained in the
Pricing Prospectus and the Final Prospectus.
(y) Subsequent
to the respective dates as of which information is given in each of the
Registration Statement, the Pricing Prospectus and the Final Prospectus, there
shall not have been any change specified in the certificates required by
subsection (cc)
of this
Section 10
which
is, in the judgment of the Representatives, so material and adverse as to make
it impracticable or inadvisable to proceed with the offering or the delivery
of
the Bonds as contemplated by the Registration Statement and the Final
Prospectus.
(z) The
Issuer LLC Agreement, the MPR LLC Agreement, the Issuer Administrative
Agreement, the MPR Administration Agreement, the Transfer Agreement, the Sale
Agreement, the Servicing Agreement and the Indenture and any amendment or
supplement to any of the foregoing shall have been executed and
delivered.
(aa) Since
the
respective dates as of which information is given in each of the Registration
Statement and in the Pricing Prospectus and as of the Closing Date there shall
have been no (i) material adverse change in the business, property or
financial condition of Mon Power and its subsidiaries, taken as a whole, or
the
Issuer or (ii) adverse development concerning the business or assets of Mon
Power and its subsidiaries, taken as a whole, or the Issuer which
26
would
be
reasonably likely to result in a material adverse change in the prospective
business, property or financial condition of Mon Power and its subsidiaries,
taken as a whole, whether or not in the ordinary course of business, or the
Issuer or (iii) development which would be reasonably likely to result in a
material adverse change in the Transferred Environmental Control Property,
the
Bonds or the Financing Order.
(bb) At
the
Closing Date, (i) the Bonds shall be rated at least “Aaa”, “AAA”, and “AAA”
by Xxxxx’x Investors Service, Inc. (“Moody’s”),
Standard & Poor’s, a division of the XxXxxx-Xxxx Companies, Inc.
(“S&P”)
and
Fitch, Inc. (“Fitch”),
respectively, and the Issuer shall have delivered to the Underwriters a letter
from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Bonds have such ratings, and (ii) neither
Moody’s, S&P nor Fitch shall have, since the date of this Underwriting
Agreement, downgraded or publicly announced that it has under surveillance
or
review, with possible negative implications, its ratings of the
Bonds.
(cc) The
Issuer, MP Renaissance and Mon Power shall have furnished or caused to be
furnished to the Representatives at the Closing Date certificates of officers
of
Mon Power, MP Renaissance and the Issuer, as the case may be, reasonably
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of Mon Power, MP Renaissance and the Issuer, in the Transfer
Agreement, the Sale Agreement, Servicing Agreement and the Indenture at and
as
of the Closing Date, as to the performance by the Issuer, MP Renaissance and
Mon
Power of all of their obligations hereunder to be performed at or prior to
such
Closing Date, as to the matters set forth in subsections (b)
and
(aa)
of this
Section 10
and as
to such other matters as the Representatives may reasonably
request.
(dd) An
issuance advice letter, in a form consistent with the provisions of the
Financing Order, shall have been filed with the PSCWV and shall have become
effective.
(ee) On
or
prior to the Closing Date, the Issuer shall have delivered to the
Representatives evidence, in form and substance reasonably satisfactory to
the
Representatives, that appropriate filings have been or are being made in
accordance with the Statute, the Financing Order and other applicable law
reflecting the grant of a security interest by the Issuer in the collateral
relating to the Bonds to the Indenture Trustee, including the filing of the
requisite notices in the office of the West Virginia State Department of
Assessments and Taxation.
(ff) On
or
prior to the Closing Date, MP Renaissance shall have funded the capital
subaccount of the Issuer with cash in an amount equal to $[ ].
(gg) The
Issuer, MP Renaissance and Mon Power shall have furnished or caused to be
furnished or agree to furnish to the Rating Agencies at the Closing Date such
opinions and certificates as the Rating Agencies shall have reasonably requested
prior to such Closing Date.
11. Conditions
of Issuer’s Obligations.
The obligation of the Issuer to deliver the Bonds shall be subject to the
conditions that no stop order suspending the effectiveness of the Registration
Statement shall be in effect at the Closing Date and no proceeding for that
purpose
27
shall
be
pending before, or threatened by, the Commission at the Closing Date and the
issuance advice letter described in Section 10(dd)
shall
have become effective. In case these conditions shall not have been fulfilled,
this Underwriting Agreement may be terminated by the Issuer upon notice thereof
to the Underwriters. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections 9(a)(viii)
and
12 hereof.
12. Indemnification
and Contribution.
(a) Mon
Power, MP Renaissance and the Issuer, jointly and severally, shall indemnify,
defend and hold harmless each Underwriter, each Underwriter’s members, managers,
employees, agents, officers and directors and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each such Underwriter and person
for any reasonable legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) as and when incurred by them in connection
with investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the
Registration Statement 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, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Prospectus, the Final
Prospectus and, together with the Pricing Prospectus, the Issuer Free Writing
Prospectuses, or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, collectively, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading or (iii) any information prepared by or on behalf of Mon
Power, MP Renaissance or the Issuer and provided to the Underwriters; provided,
however, that the indemnity agreement contained in this Section 12 shall not
apply to any such losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, in each case if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Issuer, MP Renaissance or Mon Power
by
any Underwriter, by or through the Representatives, expressly for use in
connection with the preparation of the Registration Statement, the Pricing
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus or any
amendment or supplement to either thereof, or arising out of, or based upon,
statements in or omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the Trust Indenture Act
of
the Indenture Trustee with respect to any indenture qualified pursuant to the
Registration Statement; and provided further, that the indemnity agreement
contained in this Section 12 shall not inure to the benefit of any Underwriter
(or of any member, manager, employee, agent, officer or director of such
Underwriter or of any person controlling such Underwriter within the meaning
of
Section 15 of the Securities Act) on account of any such losses, claims,
damages, liabilities, expenses or actions, joint or several, arising from the
sale of the Bonds to any person if a copy of the Pricing Prospectus (including
any amendment or supplement thereto if any amendments or supplements thereto
shall have been furnished to the Underwriters at or prior to the time of the
sale involved) shall not have been given or sent to such person by or on behalf
of such Underwriter with or prior to the sale of the
28
Bonds
to
such person unless the alleged omission or alleged untrue statement was not
corrected in the Pricing Prospectus (including any amendment or supplement
thereto if any amendments or supplements thereto shall have been furnished
to
the Underwriters at or prior to the time of the sale involved) at the time
of
such sale. The indemnity agreement of Mon Power, MP Renaissance and the Issuer
contained in this Section 12 and the representations and warranties of the
Issuer, Mon Power and MP Renaissance contained in Sections 3, 4 and 5 hereof
shall remain operative and in full force and effect regardless of any
termination of this Underwriting Agreement or of any investigation made by
or on
behalf of any Underwriter, its officers or its directors or any such controlling
person, and shall survive the delivery of the Bonds.
(b) Each
Underwriter shall severally indemnify, defend and hold harmless Mon Power,
MP
Renaissance and the Issuer, each of Mon Power’s, MP Renaissance’s and Issuer’s
officers, directors, and managers, and each person who controls the Issuer
or
Mon Power within the meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each of them for any reasonable
legal or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) as and when incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the
Registration Statement 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 or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Prospectus, the Final
Prospectus and, together with the Pricing Prospectus, the Issuer Free Writing
Prospectuses, collectively, or any omission or alleged omission to state therein
a material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to Mon Power, MP Renaissance or Issuer by such Underwriter, through
the Representatives, expressly for use in connection with the preparation of
the
Registration Statement, the Pricing Prospectus, the Final Prospectus or any
Issuer Free Writing Prospectus or any amendment or supplement to any of them.
The only information furnished to Mon Power, MP Renaissance and the Issuer
by
the Underwriters in writing expressly for use in such foregoing documents is
set
forth in Schedule
IV
hereto.
The indemnity agreement of the respective Underwriters contained in this Section
12 shall remain operative and in full force and effect regardless of any
termination of this Underwriting Agreement or of any investigation made by
or on
behalf of Mon Power, MP Renaissance or the Issuer, their directors, managers
or
officers, any such Underwriter, or any such controlling person, and shall
survive the delivery of the Bonds.
(c) Mon
Power, MP Renaissance, the Issuer and the several Underwriters each shall,
upon
the receipt of notice of the commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought under (a) or (b) above, but the failure to notify
such
indemnifying party or parties of any such action shall not relieve such
indemnifying party
29
or
parties from any liability hereunder to the extent such indemnifying party
or
parties is/are not materially prejudiced as a result of such failure to notify
and in any event shall not relieve such indemnifying party or parties from
any
liability which it or they may have to the indemnified party otherwise than
on
account of such indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled to participate
at
its own expense in the defense, or, if it so elects, to assume (in conjunction
with any other indemnifying parties) the defense of such action, in which event
such defense shall be conducted by counsel chosen by such indemnifying party
or
parties and reasonably satisfactory to the indemnified party or parties who
shall be defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel retained
by them; but if the indemnifying party shall elect not to assume the defense
of
such action, such indemnifying party will reimburse such indemnified party
or
parties for the reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action (including impleaded
parties) include both the indemnified party and the indemnifying party and
counsel for the indemnifying party shall have reasonably concluded that there
may be a conflict of interest involved in the representation by a single counsel
of both the indemnifying party and the indemnified party, the indemnified party
or parties shall have the right to select separate counsel, satisfactory to
the
indemnifying party, whose reasonable fees and expenses shall be paid by such
indemnifying party, to participate in the defense of such action on behalf
of
such indemnified party or parties (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than
one separate counsel (in addition to local counsel) representing the indemnified
parties who are parties to such action). Each of Mon Power, MP Renaissance,
Issuer and the several Underwriters agrees that without the other party’s prior
written consent, which consent shall not be unreasonably withheld, it will
not
settle, compromise or consent to the entry of any judgment in any claim in
respect of which indemnification may be sought under the indemnification
provisions of this Underwriting Agreement, unless such settlement, compromise
or
consent (i) includes an unconditional release of such other party from all
liability arising out of such claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of such other party.
(d) If
the
indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable under applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with respect to any and
all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative benefits received by Mon Power, MP Renaissance and the
Issuer on the one hand and the Underwriters on the other hand from the offering
of the Bonds pursuant to this Underwriting Agreement or (ii) if an
allocation solely on the basis provided by clause (i) is not permitted by
applicable law or is inequitable or against public policy, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each indemnifying party on the one
hand
and the indemnified party on the other in connection with the statements or
omissions which have resulted in such losses, claims, damages, liabilities
and
expenses and (iii) any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or
30
alleged
omission to state a material fact relates to information supplied by such
indemnifying party or the indemnified party and each such party’s relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. Mon Power, MP Renaissance, the Issuer and
each of the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subparagraph (d) were to be determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 12, no Underwriter shall be required to contribute
in
excess of the amount equal to the excess of (i) the total underwriting
fees, discounts and commissions received by it, over (ii) the amount of any
damages which such Underwriter has otherwise been required to pay by reason
of
any such untrue or alleged untrue statement or omission or alleged omission.
The
obligations of each Underwriter to contribute pursuant to this Section 12 are
several and not joint and shall be in the same proportion as such Underwriter’s
obligation to underwrite Bonds is to the total number of Bonds set forth in
Schedule
II
hereto.
13. Termination.
This Underwriting Agreement may be terminated, at any time prior to the Closing
Date with respect to the Bonds by the Representatives by written notice to
the
Issuer if after the date hereof and at or prior to the Closing Date
(a) there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange (“NYSE”)
or
there shall have been established by the NYSE, or the over-the-counter market,
or by the Commission any general limitation on prices for such trading or any
general restrictions on the distribution of securities, or a general banking
moratorium declared by New York or federal authorities or (b) there shall
have occurred any (i) material outbreak of hostilities (including, without
limitation, an act of terrorism) or (ii) declaration by the United States
of war or national or international calamity or crisis, including, but not
limited to, a material escalation of hostilities that existed prior to the
date
of this Underwriting Agreement or (iii) material adverse change in the
financial markets in the United States, and the effect of any such event
specified in clause (a) or (b) above on the financial markets of the United
States shall be such as to materially and adversely affect, in the reasonable
judgment of the Representatives, their ability to proceed with the public
offering or the delivery of the Bonds on the terms and in the manner
contemplated by the Final Prospectus. Any termination hereof pursuant to this
Section 13 shall be without liability of any party to any other party except
as
otherwise provided in Sections 9(a)(viii) and 12 hereof.
14. Absence
of Fiduciary Relationship.
The Issuer, MP Renaissance and Mon Power each acknowledge and agree that the
Underwriters are acting solely in the capacity of an arm’s length contractual
counterparty to the Issuer, MP Renaissance and Mon Power with respect to the
offering of the Bonds contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Issuer, MP Renaissance or Mon Power.
Additionally, none of the Underwriters is advising the Issuer, MP Renaissance
or
Mon Power as to any legal, tax, investment, accounting or regulatory matters
in
any jurisdiction. The Issuer, MP Renaissance and Mon Power shall consult with
their own advisors concerning such matters and shall be responsible for making
their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Issuer, MP Renaissance or Mon Power with respect thereto.
Any
review by the Underwriters of the Issuer, MP Renaissance or Mon Power, the
transactions contemplated hereby or other matters relating to such
transactions
31
will
be
performed solely for the benefit of the Underwriters and shall not be on behalf
of the Issuer, MP Renaissance or Mon Power.
15. Venue.
Each of the parties hereto irrevocably (i) agrees that any legal suit, action
or
proceeding against Mon Power, MP Renaissance or the Issuer brought by any
Underwriter or by any person who controls any Underwriter within the meaning
of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any federal or state court located in the State
of
New York (each, a “New
York Court”),
(ii)
waives, to the fullest extent it may effectively do so, any objection which
it
may now or hereafter have to the laying of venue of any such proceeding, (iii)
waives, to the fullest extent it may effectively do so, any objection based
on
the absence of a necessary or indispensable party in any such proceeding, and
(iv) submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. Mon Power, MP Renaissance and the Issuer each irrevocably
waives any immunity to jurisdiction to which they may otherwise be entitled
or
become entitled (including sovereign immunity, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action
or
proceeding against them arising out of or based on this Agreement or the
transactions contemplated hereby which is instituted in any New York Court
or in
any foreign court. To the fullest extent permitted by law, the Issuer hereby
waives any objection to the enforcement by any competent foreign court of any
judgment validly obtained in any such proceeding. The provisions of this Section
15 shall survive any termination of this Agreement, in whole or in
part.
16. Notices.
All communications hereunder will be in writing and may be given by United
States mail, courier service, telecopy, telefax or facsimile (confirmed by
telephone or in writing in the case of notice by telecopy, telefax or facsimile)
or any other customary means of communication, and any such communication 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 Representatives, to it at the address specified in Schedule I
hereto;
and if sent to Mon Power, to it at [ ];
and if sent to MP
Renaissance, to it at [ ]
and if sent to the
Issuer, to it at [ ].
The parties
hereto, by notice to the others, may designate additional or different addresses
for subsequent communications.
17. Successors.
This Underwriting Agreement will inure to the benefit of and be binding upon
the
parties hereto and their respective successors and the members, managers,
employees, agents, officers and directors and controlling persons referred
to in
Section 12 hereof, and no other person will have any right or obligation
hereunder.
18. Applicable
Law.
This Underwriting Agreement will be governed by and construed in accordance
with
the laws of the State of New York.
19. Counterparts.
This Underwriting 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.
32
20. Integration.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) among the Issuer, MP Renaissance Mon Power and the
Underwriters, or any of them, with respect to the subject matter
hereof.
[Remainder
of page intentionally left blank; signature page follows]
33
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this Agreement and
your acceptance shall represent a binding agreement among Mon Power, MP
Renaissance, the Issuer and the several Underwriters.
Very
truly yours,
|
||
|
||
By:
|
||
Name:
Title:
|
||
MONONGAHELA
POWER COMPANY
|
||
By:
|
||
Name:
Title:
|
||
MP
RENAISSANCE FUNDING, LLC
|
||
By:
|
||
Name:
Title:
|
Signature
Page to Mon Power Underwriting Agreement
S-1
The
foregoing Underwriting Agreement is hereby confirmed
and
accepted as of the date specified in Schedule
I
hereto.
|
||
BARCLAYS
CAPITAL INC.
|
||
By:
|
||
Name:
Title:
|
||
FIRST
ALBANY CAPITAL INC.
|
||
By:
|
||
Name:
Title:
|
||
LOOP
CAPITAL MARKETS, LLC
|
||
By:
|
||
Name:
Title:
|
Signature
Page to Mon Power Underwriting Agreement
S-2SCHEDULE
I
Underwriting
Agreement dated [____________], 2007
Registration
Statement No. 333-139820
Representatives:
Barclays
Capital Inc.
000
Xxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, XX 00000
|
|
First
Albany Capital Inc.
00000
Xxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
|
|
Loop
Capital Markets, LLC
000
Xxxx Xxxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
|
Title,
Purchase Price and Description of Bonds:
Senior
Secured Sinking Fund Environmental Control Bonds, Series A
Total
Principal
Amount
of
Tranche
|
Bond
Rate
|
Price
to
Public
|
Underwriting
Discounts and Commissions
|
Proceeds
to
Issuer
|
|
Per
Tranche A-1 Bond
|
$
|
%
|
%
|
%
|
$
|
Per
Tranche A-2 Bond
|
$
|
%
|
%
|
%
|
$
|
Per
Tranche A-3 Bond
|
$
|
%
|
%
|
%
|
$
|
Per
Tranche A-4 Bond
|
$
|
%
|
%
|
%
|
$
|
Per
Tranche A-5 Bond
|
$
|
%
|
%
|
%
|
$
|
Total
|
$
|
$
|
Original
Issue Discount (if any): $[ ]
Redemption
provisions:
Other
provisions:
Closing
Date, Time and Location: [ ]
SCHEDULE
II
Principal
Amount of Bonds to be Purchased
Principal
Amount
(in
millions)
|
||||||
Underwriter
|
Tranche
X-0
|
Xxxxxxx
X-0
|
Xxxxxxx
X-0
|
Tranche
A-4
|
Tranche
A-5
|
Total
|
Barclays
Capital Inc.
|
||||||
First
Albany
Capital
Inc.
|
||||||
Loop
Capital Markets, LLC
|
||||||
Bear,
Xxxxxxx & Co. Inc.
|
||||||
Scotia
Capital
|
||||||
Total
|
SCHEDULE
III
Schedule
of Issuer Free Writing Prospectuses
A.
|
Free
Writing Prospectuses not required to be
filed
|
Electronic
Road Show
B.
|
Free
Writing Prospectuses Required to be filed pursuant to Rule
433
|
Preliminary
Term Sheet
Pricing
Term Sheet
SCHEDULE
IV
DESCRIPTIVE
LIST OF UNDERWRITER PROVIDED INFORMATION
A: Pricing
Prospectus
[to
come]
B. Final
Prospectus
[to
come]
EXHIBIT
10(e)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR MON POWER AND THE ISSUER
EXHIBIT
10(f)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR MON POWER AND THE ISSUER
EXHIBIT
10(g)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(h)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(i)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(j)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(k)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(l)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(m)
MATTERS
TO BE COVERED IN OPINION OF
[IN-HOUSE
COUNSEL] FOR THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(n)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(o)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(p)
MATTERS
TO BE COVERED IN OPINION OF
COUNSEL
FOR THE INDENTURE TRUSTEE
EXHIBIT
10(q)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(r)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(s)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(t)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR MON POWER AND THE ISSUER
EXHIBIT
10(u)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(v)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER
EXHIBIT
10(w)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, MP RENAISSANCE AND MON POWER