Exhibit 1-1
PSNH FUNDING LLC BONDS
PSNH FUNDING LLC
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
UNDERWRITING AGREEMENT
New York, New York
April 20, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.,
as representative of the several
Underwriters named herein
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1.Introduction. PSNH Funding LLC, a Delaware limited liability
company (the "Issuer"), will sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representative") are acting
as representative, the principal amount of PSNH Funding LLC Rate Reduction
Bonds, Series 2001-1 identified in Schedule I hereto (the "Bonds").
The Bonds will be issued pursuant to an Indenture, dated as of April 25,
2001 (the "Indenture"), between the Issuer and The Bank of New York, as
Trustee (the "Trustee"). The Bonds will be secured primarily by, and will be
payable from, the RRB Property described in the Issuance Advice Letter. Such
RRB Property will be sold to the Issuer by Public Service Company of New
Hampshire, a New Hampshire corporation (the "Company"), pursuant to a
Purchase and Sale Agreement, dated as of April 25, 2001 (the "Sale
Agreement"), between the Company, as Seller, and the Issuer. The RRB
Property will be serviced pursuant to a Servicing Agreement, dated as of
April 25, 2001 (as amended and supplemented from time to time, the "Servicing
Agreement"), between the Company, as Servicer, and the Issuer.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings given to them in the Indenture.
2.Representations and Warranties.
(a) Each of the Company and the Issuer represents and warrants to,
and agrees with, each Underwriter as set forth below in this
Section 2(a). Certain terms used in this Underwriting Agreement are
defined in paragraph (iii) below.
(i) If the offering of the Bonds is a Delayed Offering
(as specified in Schedule I hereto), paragraph (1) below is
applicable and, if the offering of the Bonds is a Non-Delayed
Offering (as so specified), paragraph (2) below is applicable.
(1) The Issuer and the Bonds meet the requirements for the
use of Form S-3 and Rule 415 under the Securities Act of
1933, as amended (the "Act"), and the Issuer has filed
with the Securities and Exchange Commission (the "SEC") a
registration statement (file number 333-55830) on such
Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Bonds. The
Issuer may have filed one or more amendments thereto, and
may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such
registration statement, as so amended, and in the form
heretofore delivered to you, has become effective. The
offering of the Bonds is a Delayed Offering and, although
the Basic Prospectus may not include all the information
with respect to the Bonds and the offering thereof
required by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the
rules thereunder to be included therein as of the
Effective Date. The Issuer will next file with the SEC
pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Bonds and the
offering thereof. As filed, such final prospectus
supplement shall include all required information with
respect to the Bonds and the offering thereof and, except
to the extent the Representative shall agree in writing
to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time,
shall contain only such specific additional information
and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the
Issuer has advised you, prior to the Execution Time, will
be included or made therein.
(2) The Issuer and the Bonds meet the requirements for the
use of Form S-3 and Rule 415 under the Act and the Issuer
has filed with the SEC a registration statement (file
number 333-55830) on such Form, including a basic
prospectus, for registration under the Act of the
offering and sale of the Bonds. The Issuer may have
filed one or more amendments thereto, including a
Preliminary Final Prospectus in accordance with Rule
424(a), each of which has previously been furnished to
you. The Issuer will next file with the SEC either (x) a
final prospectus supplement relating to the Bonds in
accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration
statement, an amendment to such registration statement,
including the form of final prospectus supplement. In
the case of clause (x), the Issuer has included in such
registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the
Bonds and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Bonds and the offering
thereof and, except to the extent the Representative
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific
additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Issuer has advised you, prior to
the Execution Time, will be included or made therein.
(ii) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date,
the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that neither the Issuer nor the
Company makes any representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statements
of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Issuer by or on behalf of
any Underwriter through the Representative specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), as specified in Section 8(b) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted.
(iii) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date" shall
mean each date that the Registration Statement and any post-
effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph
(a)(i) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering,
any Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Bonds and the offering thereof and
is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Bonds that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the
case of a Non-Delayed Offering, no filing pursuant to Rule 424(b)
is required, shall mean the form of final prospectus relating to
the Bonds, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a)(i) above, including all incorporated documents,
exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which
it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by
Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the Bonds
and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to
Rule 430A. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. A "Non-Delayed Offering" shall mean an offering of
Bonds which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the Bonds so offered must be included
in such registration statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of Bonds pursuant to
Rule 415 which does not commence promptly after the effective date
of a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the Bonds
so offered. Whether the offering of the Bonds is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(iv) The Issuer has been duly organized and is validly existing
in good standing as a limited liability company under the laws of the
State of Delaware, has the power and authority to conduct its
business as presently conducted and as described in the Basic
Prospecctus, any Preliminary Final Prospectus and the Final
Prospectus and is duly qualified as a foreign corporation to do
business and in good standing in every jurisdiction in
which the nature of the business conducted or property owned by it
makes such qualification necessary and in which the failure to so
qualify would have a materially adverse effect on the Issuer; and
the Issuer has all requisite power and authority to issue the Bonds
and purchase the RRB Property as described in the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus.
(v) The Company is a validly existing corporation in good
standing under the laws of the State of New Hampshire; the Company
has all requisite power and authority and all franchises, licenses
and permits necessary to own and occupy its properties and carry on
its business as presently conducted and as described in the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus and as may be necessary to execute, deliver and perform
its obligations under this Agreement, the Sale Agreement, the
Servicing Agreement and the Administration Agreement.
(vi) Each of the Basic Documents to which the Company or the
Issuer is a party has been duly authorized by the Company or the
Issuer, as applicable, and when executed and delivered by the Issuer
or the Company, as applicable, will constitute a valid and binding
obligation of the Company or the Issuer, as applicable, enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditor's rights and to general equity
principles.
(vii) The Bonds have been duly authorized by the Issuer and will
conform to the description thereof in the Prospectus; and when the
Bonds are executed and authenticated by the Trustee and delivered to
the Underwriters and are paid for by the Underwriters in accordance
with the terms of this Agreement, the Bonds will constitute the
legal, valid and binding obligations of the Issuer, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditor's rights and to general principles
of equity.
(viii) The issuance and sale of the Bonds by the Issuer, the
execution, delivery and compliance by the Issuer with all of the
provisions of the Basic Documents to which the Issuer is a party,and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any trust
agreement, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Issuer is a party or by
which the Issuer is bound or to which any of the property or assets
of the Issuer is subject, which conflict, breach, violation or
default would be material to the issuance of the Bonds or would have
a material adverse effect on the Issuer, nor will such action result
in any violation of the Issuer's Certificate of Formation or Limited
Liability Company Agreement (the "LLC Agreement") or any statute,
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer or its properties.
(ix) The assignment of the RRB Property by the Company to the
Issuer, the execution, delivery and compliance by the Company with
all of the provisions of the Basic Documents to which the Company is
a party, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any trust agreement, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, which conflict,
breach, violation or default would be material to the issuance and
sale of the Bonds or would have a material adverse effect on the
financial position or results of operations of the Company, nor will
such action result in any violation of the provisions of the
Articles of Incorporation or Bylaws of the Company or any statute,
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties.
(x) Except for:
(a) the order of the SEC making the Registration
Statement effective, and
(b) permits and similar authorizations required under
the securities or blue sky laws of any jurisdiction,
no consent, approval, authorization or other order of any
governmental authority is legally required for the execution,
delivery and performance of this Agreement by the Issuer and the
Company and the consummation of the transactions contemplated
hereby, other than those that have been obtained.
(b) Each of the several Underwriters represents and warrants to,
and agrees with, the Issuer, its directors and such of its officers as
shall have signed the Registration Statement, and to each other
Underwriter, that the information furnished in writing to the Issuer by,
or through the Representative on behalf of, such Underwriter expressly
for use in the Registration Statement or the Prospectus, as specified in
Section 8(b) of this Agreement, does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection
with such information required to be stated therein or necessary to make
such information not misleading.
3.Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Issuer
will sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Issuer, at the purchase price for each class of
Bonds set forth in Schedule II hereto, the respective principal amount of
each class of Bonds set forth opposite the name of each Underwriter on
Schedule II hereto.
0.Xxxxxxxx and Payment. Delivery of and payment for the Bonds
shall be made at 9:00 AM (Eastern Daylight Time) on April 25, 2001 (or such
later date not later than five business days after such specified date as the
Representative shall designate), which date and time may be postponed by
agreement between the Representative and the Issuer or as provided in
Section 9 hereof (such date and time of delivery and payment for the Bonds
being herein called the "Closing Date"). Delivery of the Bonds shall be made
to the Representative for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representative of the
purchase price thereof to the Issuer by wire transfer of immediately
available funds in U.S. dollars. Delivery of the Bonds shall be made at such
location as the Representative shall reasonably designate at least one
business day in advance of the Closing Date. The Bonds to be so delivered
shall be initially represented by Bonds registered in the name of Cede & Co.,
as nominee of The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Bonds will be represented by book entries on the
records of DTC and participating members thereof. Definitive Bonds will be
available only under limited circumstances described in the Final Prospectus.
The Issuer will have the Bonds available for inspection, checking
and packaging by the Representative in New York, New York, not later than
1:00 PM 1(Eastern Daylight Time) on the business day prior to the Closing
Date.
5.Covenants.
(a) Covenants of the Issuer. The Issuer covenants and agrees with
the several Underwriters that:
(i) The Issuer will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time and any amendment thereto, to become effective. Prior to the
termination of the offering of the Bonds, the Issuer will not file
any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Issuer has furnished
you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Issuer will cause
the Final Prospectus, properly completed in a form approved by you,
and any supplement thereto to be filed with the SEC pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representative of such timely filing. The Issuer will promptly
advise the Representative (i) when the Registration Statement, if
not effective at the Execution Time, and any amendment thereto,
shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the SEC pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of
the Bonds, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the SEC for
any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information, (v) of the
issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (vi) of the receipt by the
Issuer of any notification with respect to the suspension of the
qualification of the Bonds for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Issuer will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Bonds is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Issuer
promptly will (i) prepare and file with the SEC, subject to the
second sentence of paragraph (a)(i) of this Section 5, an amendment
or supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemented Prospectus
to you in such quantities as you may reasonably request.
(iii) As soon as practicable, the Issuer will use its
reasonable efforts to cause the Trust to make generally available
to the holders of the Bonds and the Representative an earnings
statement or statements of the Issuer which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Issuer will furnish to the Representative and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as
the Representative may reasonably request. The Issuer shall
furnish or cause to be furnished to the Representative copies of
all reports required by Rule 463 under the Act. The Issuer will
pay the expenses of printing or other production of all documents
relating to the offering.
(v) The Issuer will arrange for the qualification of the
Bonds for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in
effect so long as required for the distribution of the Bonds or
requested by the Representative and will arrange for the
determination of the legality of the Bonds for purchase by
institutional investors; provided, however, that in no event shall
the Issuer be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Bonds, in any
jurisdiction where it is not now so subject.
(vi) Until 90 days after the date hereof, the Issuer will
not, without the written consent of the Representative, offer, sell
or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any asset-backed
securities of a trust or other special purpose vehicle (other than
the Bonds).
(vii) For a period from the date of this Agreement until
the retirement of the Bonds or until such time as the Underwriters
shall cease to maintain a secondary market in the Bonds, whichever
occurs first, the Issuer will deliver to the Representative the
annual statements of compliance and the annual independent
auditor's servicing reports furnished to the Issuer or the Trustee
pursuant to the Servicing Agreement or the Indenture, as
applicable, as soon as such statements and reports are furnished to
the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the
Issuer will furnish to the Representative (i) as soon as available,
a copy of each report of the Issuer filed with the SEC under the
Exchange Act, or mailed to holders of the Bonds, (ii) a copy of any
filings with the New Hampshire Public Utilities Commission
("NHPUC") pursuant to the Finance Order, including, but not limited
to, any annual or more frequent adjustment filings, and (iii) from
time to time, any information concerning the Company or the Issuer,
as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to
satisfy the condition set forth in Section 6(l) of this Agreement
is conditioned upon the furnishing of documents or the taking of
other actions by the Issuer on or after the Closing Date, the
Issuer shall furnish such documents and take such other actions.
(b) Covenants of the Company. The Company covenants and agrees
with the several Underwriters that, to the extent that the Issuer has
not already performed such act pursuant to Section 5(a):
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. The Company will use
its best efforts to prevent the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement
and, if issued, to obtain as soon as possible the withdrawal
thereof.
(ii) The Company will cause the proceeds from the sale of
the RRB Property to be applied for the purposes permitted by the
Finance Order and described in the Prospectus under the caption
"Use of Proceeds."
(iii) Until 90 days after the date hereof, the Company
will not, without the written consent of the Representative, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any asset-backed
securities of a trust or other special purpose vehicle (other than
the Bonds).
(iv) So long as any of the Bonds are outstanding and the
Company is the Servicer, the Company will furnish to the
Representative (i) as soon as available, a copy of each report of
the Issuer filed with the SEC under the Exchange Act, or mailed to
holders of the Bonds, (ii) a copy of any filings with the NHPUC
pursuant to the Finance Order, including, but not limited to, any
annual or more frequent adjustment filings, and (iii) from time to
time, any information concerning the Company or the Issuer, as the
Representative may reasonably request.
(v) To the extent, if any, that any rating necessary to
satisfy the condition set forth in Section 6(l) of this Agreement
is conditioned upon the furnishing of documents or the taking of
other actions by the Company on or after the Closing Date, the
Company shall furnish such documents and take such other actions.
(vi) If, at any time when a prospectus relating to the
Bonds is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company
at the Issuer's expense promptly will (i) prepare and file with the
SEC, subject to the second sentence of paragraph (a)(i) of this
Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (ii) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
6.Conditions to the Obligations of the 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 and
the Company contained herein as of the Execution Time and the Closing Date
and on the part of the Company contained in Article 3 of the Sale Agreement
and in Section 6.01 of the Servicing Agreement as of the Closing Date, to the
accuracy of the statements of the Issuer and the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Issuer and the Company of their obligations hereunder to be performed on or
prior to the Closing Date and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representative agrees in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM (Eastern Daylight Time), on the date of determination
of the public offering price, if such determination occurred at or prior
to 3:00 PM (Eastern Daylight Time) on such date, or (ii) 12:00 Noon
(Eastern Daylight Time) on the business day following the day on which
the public offering price was determined, if such determination occurred
after 3:00 PM (Eastern Daylight Time) on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Final Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Representative shall have received opinions of counsel for
the Company, portions of which may be delivered by Day, Xxxxx & Xxxxxx
LLP, outside counsel for the Company, portions of which may be delivered
by Xxxx, Young and Pignatelli, Professional Association, outside counsel
for the Company, and portions of which may be delivered by in-house
counsel for the Company, as the Representative may agree, each dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) the Company is a validly existing corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized and has all requisite corporate power and
authority to own its properties, conduct its business as described
in the Registration Statement and the Prospectus, and to execute,
deliver and perform its obligations under this Agreement, the Sale
Agreement, the Servicing Agreement and the Administration
Agreement;
(ii) the Sale Agreement, the Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by, and constitute legal, valid and binding instruments
enforceable against, the Company in accordance with their terms
(subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws or equitable principles affecting
creditors' rights generally from time to time in effect); this
Agreement has been duly authorized, executed and delivered by the
Company;
(iii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its affiliates or challenging the
Finance Order or the collection of the RRB Charges or the use and
enjoyment of RRB Property under the Statute of a character required
to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or the Final Prospectus, or
to be filed as an exhibit to the Registration Statement, which is
not described or filed as required;
(iv) no consent, approval, authorization or order of any
court or governmental agency or body is required to be obtained by
the Company for the consummation of the transactions contemplated
herein, except such as have been obtained in accordance with New
Hampshire RSA Chapter 369-B (the "Statute"), the NHPUC Regulations
(as defined in Section 1.01 of the Servicing Agreement), the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act")
and the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution
of the Bonds by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(v) neither the execution and delivery of this
Agreement, the Sale Agreement, the Servicing Agreement, the
Administration Agreement nor the consummation of the transactions
contemplated by this Agreement, the Sale Agreement, the Servicing
Agreement or the Administration Agreement nor the fulfillment of
the terms of this Agreement, the Sale Agreement, the Servicing
Agreement or the Administration Agreement by the Company, will
(A) conflict with, result in any breach of any of the terms or
provisions of, or constitute (with or without notice or lapse of
time) a default under the articles of incorporation, bylaws or
other organizational documents of the Company, or conflict with or
breach any of the material terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any
indenture, material agreement or other material instrument to which
the Company is a party or by which the Company is bound, (B) result
in the creation or imposition of any lien upon any properties of
the Company pursuant to the terms of any such indenture, agreement
or other instrument (other than as contemplated by the Basic
Documents and RSA 369-B:7), or (C) violate any New Hampshire or
federal law or any order, rule or regulation applicable to the
Company of any New Hampshire or federal court or regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Company, or any of its properties; and
(vi) upon the delivery of the fully executed Sale
Agreement to the Issuer and the payment of the purchase price of
the RRB Property by the Issuer to the Seller pursuant to the Sale
Agreement, then (A) the transfer of the RRB Property by the Seller
to the Issuer pursuant to the Sale Agreement conveys the Seller's
right, title and interest in the RRB Property to the Issuer and
will be treated under the laws of the State of New Hampshire as an
absolute transfer of all of the Seller's right, title, and interest
in the RRB Property, other than for federal and state income tax
purposes, (B) such transfer of the RRB Property is perfected within
the meaning of RSA 369-B:6, VI, (C) assuming that the Issuer does
not have notice or knowledge of any conflicting assignment of the
RRB Property, such transfer has priority over any other assignment
or transfer of the RRB Property, and (D) the RRB Property is free
and clear of all liens created prior to its transfer to the Issuer
pursuant to the Sale Agreement; the Seller's first mortgage
indenture explicitly excludes accounts receivables and contracts
from its lien and, therefore, the RRB Property is not subject to
such lien; and
(vii) provided that amendments to the provisions of
Article 9 of the New Hampshire UCC are enacted after the date of
this Agreement and prior to the Closing Date: no further action
with respect to the recording or filing (including any filing or
recording required pursuant to provisions of Article 9 of the New
Hampshire UCC that, as of the Closing Date, are to become effective
on July 1, 2001) of the Sale Agreement, any agreements supplemental
thereto, any financing statements, any continuation statements, or
any other documents or filings will be necessary prior to March 1,
2002, to perfect the transfer of the RRB Property by the Company to
the Issuer pursuant to the Sale Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New Hampshire or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representative shall have received opinions of counsel for
the Issuer and the Company, portions of which may be delivered by Day,
Xxxxx & Xxxxxx LLP, outside counsel for the Issuer and the Company,
portions of which may be delivered by Xxxx, Young and Pignatelli,
Professional Association, outside counsel for the Issuer and the
Company, and portions of which may be delivered by in-house counsel, as
the Representative may agree, and portions of which may be delivered by
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the
Issuer, each dated the Closing Date, in form and substance reasonably
satisfactory to the Representative, to the effect that:
(i) the Issuer has been duly formed and is validly
existing in good standing as a limited liability company under the
laws of the State of Delaware, with all necessary limited liability
company power and authority to execute, deliver and perform its
obligations under this Agreement, the Sale Agreement, the Servicing
Agreement, the Indenture, this Agreement, the Administration
Agreement, the Fee and Indemnity Agreement and the Bonds and is
registered as a foreign limited liability company and is in good
standing in the State of New Hampshire;
(ii) the Sale Agreement, the Servicing Agreement, the
Indenture, the Administration Agreement and the Fee and Indemnity
Agreement have been duly authorized, executed and delivered by, and
constitute legal, valid and binding instruments enforceable
against, the Issuer in accordance with their terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws or equitable principles affecting creditors' rights
generally from time to time in effect); and the Bonds have been
duly authorized and when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement,
will constitute legal, valid and binding obligations of the Issuer
entitled to the benefits of the Indenture (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws or
equitable principles affecting creditors' rights generally from
time to time in effect); this Agreement has been duly authorized,
executed and delivered by the Issuer;
(iii) to the extent described in the Final Prospectus, the
Sale Agreement, the Servicing Agreement, the Indenture, the
Administration Agreement, the Fee and Indemnity Agreement, the LLC
Agreement and the Bonds conform to the descriptions thereof
contained therein;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act;
(v) to the knowledge of such counsel, after having made
inquiry of officers of the Issuer, but without having made any
other investigation, there is no pending or threatened action, suit
or proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Issuer or challenging the
Bonds, the Finance Order, the settlement order issued by the NHPUC
on September 8, 2000 (the "Settlement Order") or the collection of
the RRB Charge or the use and enjoyment of RRB Property under the
Statute of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document
relating to the Issuer, the Bonds, the Statute or the Finance Order
of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as
required; and the statements included in the Final Prospectus under
the headings "Risk Factors-Bondholders could experience payment
delays or losses as a result of amendment, repeal or invalidation
of the securitization statute, breach of the state pledge or
invalidation of the stranded cost recovery charge," "Energy
Deregulation and New Market Structure in New Hampshire," (to the
extent the Statute, the Finance Order, the Settlement Order, the
Agreement to Settle PSNH Restructuring between the Governor of New
Hampshire, the Company, the NHPUC and the other parties named
therein, dated August 2, 1999, and such agreement as revised and
conformed in compliance with NHPUC Order No. 23,549 (together, the
"Settlement Agreement") are discussed), "The Issuer," "Servicing"
(to the extent the Servicing Agreement or the Finance Order is
described), "Description of the Bonds," "Appeal of Settlement
Order," "The Seller and Servicer" (other than under the subheading
"Billing and Collections," as to which such counsel need express no
opinion), "Description of the RRB Property," "ERISA Considerations"
and "Risk Factors - Bankruptcy and Creditors' Rights Issues" (read
together with "Description of the RRB Property - Bankruptcy and
Creditors Rights Issues"), to the extent that they constitute
matters of New Hampshire or federal law or legal conclusions with
respect thereto, fairly summarize the matters described therein;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement and the Final Prospectus (other than
the financial statements including the notes thereto or other
financial data contained in the Final Prospectus as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel shall confirm, on the basis of certain
assumptions, that at the Effective Date no facts have come to such
counsel's attention which would cause such counsel to believe that
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that the Final Prospectus as of its date and the
Closing Date includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading (other than the financial statements including
the notes thereto and other financial data contained in the Final
Prospectus as to which such counsel need express no opinion);
(vii) no consent, approval, authorization or order of any
New Hampshire, Delaware or federal court or governmental agency or
body is required to be obtained by the Issuer for the issuance of
the Bonds or the consummation by the Issuer of the transactions
contemplated herein, except such as have been obtained under the
Statute, the NHPUC Regulations, the 1935 Act and the Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Bonds by the
Underwriters and such other approvals (specified in such opinion)
as have been obtained;
(viii) neither the execution and delivery of this
Agreement, the Sale Agreement, the Servicing Agreement, the
Indenture, the Administration Agreement or the Fee and Indemnity
Agreement, nor the issuance and sale of the Bonds, nor the
consummation of the transactions contemplated by this Agreement,
the Sale Agreement, the Servicing Agreement, the Indenture, the
Administration Agreement or the Fee and Indemnity Agreement, nor
the fulfillment of the terms of this Agreement, the Sale Agreement,
the Servicing Agreement, the Indenture, the Administration
Agreement or the Fee and Indemnity Agreement by the Issuer, will
(A) conflict with, result in any breach of any of the terms or
provisions of, or constitute (with or without notice or lapse of
time) a default under the LLC Agreement of the Issuer, or conflict
with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, agreement or other instrument known to such
counsel and to which the Issuer is a party or by which the Issuer
is bound, (B) result in the creation or imposition of any lien upon
any properties of the Issuer pursuant to the terms of any such
indenture, agreement or other instrument (other than as
contemplated by the Basic Documents and RSA 369-B:7), or
(C) violate any New Hampshire, Delaware or federal law or any
order, rule or regulation applicable to the Issuer of any New
Hampshire, Delaware or federal court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Issuer, or any of its properties;
(ix) the Issuer is not, and after giving effect to the
offering and sale of the Bonds and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" or under the "control" of an "investment
company" as such terms are defined under the Investment Company Act
of 1940, as amended;
(x) the Finance Order expressly states each and every
one of the conditions set forth in RSA 369-B:3, IV (b), and the
Finance Order includes a finding by the NHPUC that the Finance
Order is consistent with each of such stated conditions, and
therefore, in accordance with RSA 369-B:3, V, the Finance Order is
deemed to be authorized by, and issued pursuant to, the Statute;
the failure to realize the factual predicates of any of such stated
conditions subsequent to the issuance of the Bonds shall not
adversely affect the Bonds, the Indenture, the RRB Property, the
other Collateral, or the protection of Bondholder rights;
(xi) (A) under RSA 369-B:7, II, the provisions of the
Indenture create in favor of the Trustee to secure payment of the
Secured Obligations a security interest in all right, title and
interest, whether now owned or hereafter acquired, of the Issuer in
the RRB Property; (B) the Finance Order authorizes the RRB Charge
included in the RRB Property; (C) the aforesaid security interest
in the RRB Property under the Indenture has attached to the RRB
Property or (in the case of any after acquired property) will
attach as it comes into existence; (D) financing statements which
describe the RRB Property by reference to the Finance Order have
been presented for filing in the offices of the Secretary of the
State of New Hampshire and the Clerk of the City of Manchester, New
Hampshire, and all filing fees required in connection therewith
have been paid, in accordance with Part 4 of Article 9 of the New
Hampshire UCC; and (E) such security interest in the RRB Property
granted by the Issuer under the Indenture is valid and enforceable
against the Issuer, and is perfected or (in the case of any after
acquired property) will be valid, enforceable and perfected as such
property comes into existence, subject in each case to (x) the
rights of any third parties holding security interests in the RRB
Property perfected in the manner described in RSA 369-B:7 prior to
perfection by filing of the security interest granted under the
Indenture (which is addressed in paragraph (xv) below) and (y)
rights arising under the first priority lien arising under RSA 369-
B:7, VIII described in paragraph (xii) below);
(xii) (A) the Statute creates a Statutory Lien on the
RRB Property securing all obligations, then existing or
subsequently arising, to the holders of the Bonds in respect of the
Bonds and all Secured Obligations, then existing or subsequently
arising, to the Trustee in its capacity as such; (B) such Statutory
Lien is valid, perfected and enforceable against the Issuer and all
third parties without any further public notice; and (C) the
Statute provides that conflicting Statutory Liens on RRB Property
arising under RSA 369-B:7, VIII rank in order of time of
perfection;
(xiii) (A) the provisions of the Indenture create in
favor of the Trustee a security interest in the right, title and
interest, whether now owned or hereafter acquired, of the Issuer in
respect of the Collateral; (B) such security interest will attach
to the Collateral as it comes into existence; (C) financing
statements which describe the Collateral have been presented for
filing in the offices of the Secretary of the State of New
Hampshire and the Clerk of the City of Manchester, New Hampshire,
and all filing fees required in connection therewith have been paid
in accordance with Article 9 of the New Hampshire UCC; and (D) such
security interest in the Sale Agreement, the Servicing Agreement,
the Administration Agreement and all accounts, general intangibles,
equipment and inventory (as such terms are defined in the New
Hampshire UCC) of the Issuer and all other Collateral in which a
security interest can be perfected by the filing of financing
statements in New Hampshire under the New Hampshire UCC
(collectively, the "UCC Collateral") granted by the Issuer under
the Indenture is valid and enforceable against the Issuer and is
perfected or (in the case of after acquired property) will be
valid, enforceable and perfected as such property comes into
existence, subject in each case to the rights of any third parties
holding security interests in the UCC Collateral perfected in the
manner described in Article 9 of the New Hampshire UCC prior to
perfection by filing of the security interest therein granted under
the Indenture (which is addressed in paragraph (xv) below);
(xiv) the provisions of the Indenture create in favor of
the Trustee a security interest in the Collection Account
(including all subaccounts thereof) and all amounts on deposit
therein and all investments credited thereto in accordance with the
provisions of the Indenture; to the extent that (A) the Collection
Account (including all subaccounts thereof) is either (i)
established and maintained as a "securities account" within the
meaning of the New Hampshire UCC, as contemplated by Section 6.17
of the Indenture, or (ii) is not such a securities account but is
an Eligible Deposit Account, as required by Section 8.02(a) of the
Indenture, and (B) all amounts from time to time on deposit in the
Collection Account that are invested (x) are invested in Eligible
Investments made by the Trustee in its name and credited to the
Collection Account, as contemplated by Sections 6.17 and 8.02 of
the Indenture, and (y) if any such Eligible Investments are deposit
accounts, such deposit accounts are maintained in New Hampshire,
the security interest in the Collection Account and all amounts on
deposit therein and all investments credited thereto granted to the
Trustee under the Indenture will be a perfected security interest;
if amounts on deposit in the Collection Account are invested in
Eligible Investments that are deposit accounts maintained outside
of New Hampshire, the validity and perfection of the Trustee's
security interest therein will be governed by the law of the state
in which such accounts are maintained;
(xv) the Search Reports set forth the proper filing
offices and the proper debtor names necessary to identify those
Persons who under the New Hampshire and Delaware Uniform Commercial
Code or the Statute might have on file effective financing
statements against the Company or the Issuer covering the
Collateral (including the RRB Property), or a portion thereof; the
Search Reports identify no Person who has filed in any of such
filing offices a financing statement describing the Collateral
(including the RRB Property), or a portion thereof;
(xvi) (A) the Finance Order has been duly issued and
authorized by the NHPUC and the Finance Order, giving effect to the
Issuance Advice Letter, is effective; (B) the Issuer is a
"financing entity" under RSA 369-B:2, VI and the Bonds are "rate
reduction bonds" under RSA 369-B:2, X; (C) the Bonds are entitled
to the protections provided in the Statute and the Finance Order;
(D) the Finance Order is no longer subject to appeal by any person
in state courts of the State of New Hampshire; and (E) the Servicer
is authorized to file through the legal final maturity date
periodic RRB Charge adjustments to the extent necessary to ensure
the timely recovery of revenues sufficient to provide for the
payment of an amount equal to the sum of the periodic Bond payment
requirements for the upcoming adjustment period, which includes
indemnity obligations under the Basic Documents, subject to the
limitation on the Company's "stranded cost recovery charge"
described in RSA 369-B:3, IV(b)(9);
(xvii) the Statute does not violate the United States
Constitution or the Constitution of the State of New Hampshire in
any way that would have a material adverse effect on the Bonds, the
Indenture, the RRB Property, the other Collateral or the protection
of Bondholder rights;
(xviii)under the Taking Clause of the United States
Constitution, the State of New Hampshire in the exercise of its
executive, administrative or legislative powers, could not repeal
or amend the Statute or the Finance Order or take any other action
in contravention of its pledge contained in RSA 369-B:6, II without
paying just compensation to the Bondholders, as determined by a
court of competent jurisdiction, if doing so would constitute a
permanent appropriation of a substantial property interest of the
Bondholders in the RRB Property and deprive the Bondholders of
their reasonable expectations arising from their investments in the
Bonds;
(xix) absent a demonstration that a deprivation is
necessary to accomplish a legitimate public purpose, under the
takings clauses of the New Hampshire Constitution, the State of New
Hampshire, in the exercise of its executive, administrative or
legislative powers, could not repeal or amend the Securitization
Statute or the Finance Order or take any other action in
contravention of the pledge contained in RSA 369-B:6, II without
paying just compensation to the Bondholders, as determined by a
court of competent jurisdiction, if doing so would constitute a
permanent appropriation of a substantial property interest of the
Bondholders in the RRB Property and deprive the Bondholders of
their reasonable expectations arising from their investments in the
Bonds;
(xx) under the Contracts Clauses of the United States and
New Hampshire Constitutions, absent a demonstration by the State of
New Hampshire that an impairment is narrowly-tailored and is
necessary to advance an important public interest, such as
responding to the concerns of a "great public calamity," the State
of New Hampshire could not repeal or amend the Statute or take any
legislative action, or refuse to take any legislative action
required of the State of New Hampshire under its pledge contained
in RSA 369-B:6, II with the Bondholders, if such repeal or
amendment, or such action or inaction, would substantially impair
the rights of the Bondholders;
(xxi) with the possible exception of the business profits
tax imposed under the provisions of RSA Chapter 77-A and the
business enterprise tax imposed under the provisions of RSA Chapter
77-E, the Issuer is not subject to any other taxes imposed by the
State of New Hampshire;
(xxii) the descriptions of those material federal and New
Hampshire tax consequences to holders of the Bonds contained in the
Final Prospectus under "Federal Income Tax Consequences" and "New
Hampshire Taxation of Bondholders" are accurate in all material
respects;
(xxiii)the New Hampshire Constitution prohibits enactment
of law pursuant to voter initiatives or referenda on a ballot in
any election in the State of New Hampshire;
(xxiv) RSA 369-B:9 provides that the Statute is severable;
the invalidation of any provision of the Statute that is not
integral or essential to the Bonds, the Indenture, the RRB Property
and the protection of Bondholder rights would not cause the
invalidation of any provision of the Statute that is integral or
essential to the Bonds, the Indenture, the RRB Property and the
protection of Bondholder rights;
(xxv) any attempt by the State of New Hampshire (the
"State"), the NHPUC or any other agency or instrumentality of the
State to repeal or amend the Statute or the Finance Order or to
take other action in a manner that substantially impairs the rights
of the Bondholders would be subject to preliminary injunction if a
New Hampshire court hearing a request therefor finds (i) that the
party requesting such injunctive relief has a likelihood of success
on the merits, (ii) that such party will suffer irreparable harm if
the preliminary injunctive relief is not granted, (iii) that no
adequate, alternative remedy at law exists and (iv) that the
issuance of such injunctive relief would not adversely affect the
public interest; further, upon final adjudication of the challenged
repeal, amendment or other action, the alleged wrongful conduct
would be subject to a permanent injunction if the petitioning party
succeeds on the merits and the court hearing a request therefor
makes the findings set forth in clauses (ii) through (iv);
(xxvi) no further action with respect to the recording or
filing (including, if any amendment to Article 9 to the New
Hampshire UCC is enacted after the date of this Agreement but prior
to the Closing Date, any filing or recording required pursuant to
provisions of Article 9 of the New Hampshire UCC that, as of the
Closing Date, are to become effective on July 1, 2001) of the
Indenture, any indentures supplemental thereto, any financing
statements, any continuation statements, or any other documents or
filings will be necessary prior to March 31, 2002, to perfect the
security interest in the RRB Property, the other Collateral as
defined in the Indenture, and the proceeds thereof created by the
Indenture in favor of the Trustee; and
(xxvii)it is highly unlikely that a timely-filed Petition
for Certiorari from the decision of the Supreme Court of New
Hampshire in Appeal of Campaign for Ratepayers Rights, 2001 N.H.
LEXIS 1 (Nos. 00-637, 00-638, decided Jan. 16, 2001),
reconsideration denied, 2001 N.H. LEXIS __ (Jan. 31,2001) would be
granted by the United States Supreme Court.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New Hampshire, the State of Delaware or the United States, to
the extent deemed proper and specified in such opinion, upon the opinion
of other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Issuer and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Representative shall have received opinions of counsel to
the Trustee, portions of which may be delivered by Xxxxxxxx Ronon
Xxxxxxx & Young, LLP, counsel to the Trustee, and portions of which may
be delivered by Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee,
each dated the Closing Date, in form and substance reasonably
satisfactory to the Representative, to the effect that:
(i) the Trustee is validly existing as a state banking
institution in good standing under the laws of the State of New
York;
(ii) the Trustee has the requisite power (including
corporate trust power) and authority to execute and deliver the
Indenture, and the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Trustee in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or
equitable principles affecting creditors' rights generally from
time to time in effect); and
(iii) the Bonds have been duly authenticated by the
Trustee.
(e) The Representative shall have received from Xxxxxx, Xxxxxxxxxx
& Sutcliffe LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Bonds, the Indenture, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representative may reasonably require, and the Company and the Issuer
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate of the
Issuer, signed by an officer of the Issuer, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Issuer in
this Agreement and in the Indenture are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Issuer has complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Issuer's knowledge,
threatened; and
(iii) since the dates as of which information is given in
the Final Prospectus (including any supplement thereto), there has
been no material adverse change in (x) the condition (financial or
other), earnings, business or properties of the Issuer, whether or
not arising from transactions in the ordinary course of business,
or (y) the RRB Property, except as set forth in or contemplated in
the Final Prospectus (including any supplement thereto).
(g) The Representative shall have received a certificate of the
Company, signed by an executive officer of the Company, dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement, the Sale Agreement and the Servicing Agreement are
true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the dates as of which information is given in
the Final Prospectus (including any supplement thereto), there has
been no material adverse change in (x) the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, or (y) the RRB
Property, except as set forth in or contemplated in the Final
Prospectus (including any supplement thereto).
(h) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have furnished
to the Representative (i) a letter or letters (which may refer to
letters previously delivered to the Representative), dated as of the
Closing Date, in form and substance satisfactory to the Representative,
confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder, that they consent to the inclusion of
their report on the audited financial statements of the Issuer and the
reference to them as experts under the heading "Experts" in the Basic
Prospectus and the Final Prospectus, and stating in effect that they
have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Company and the Issuer) set forth in the Registration Statement and
the Final Prospectus, including information specified by the
Underwriters and set forth under the captions "Prospectus Summary,"
"Description of the RRB Property," "The Seller and Servicer" and
"Description of the Bonds" in the Final Prospectus, agrees with the
accounting records of the Company and the Issuer, excluding any
questions of legal interpretation, and (ii) the opinion or certificate,
dated as of the Closing Date, in form and substance satisfactory to the
Representative, satisfying the requirements of Section 2.10(g) of the
Indenture.
References to the Final Prospectus in this paragraph (h) include
any supplement thereto at the date of the letter.
In addition, at the Execution Time, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representative a letter or letters, dated as of the
Execution Time, in form and substance satisfactory to the
Representative, to the effect set forth above.
(i) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (including any
supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting either
(i) the business, properties or financial condition of the Company or
the Issuer or (ii) the RRB Property, the Bonds, the Finance Order, the
Settlement Order or the Statute, the effect of which is, in the judgment
of the Representative, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Bonds as
contemplated by the Registration Statement (including any amendment
thereof) and the Final Prospectus (including any supplement thereto).
(j) The Representative shall have received on the Closing Date an
opinion letter or letters of Day, Xxxxx & Xxxxxx LLP, counsel to the
Company and the Issuer, dated the Closing Date, in form and substance
reasonably satisfactory to the Representative that, should the Company
become the debtor in case under the United States Bankruptcy Code, (i)
the transfer to the Issuer of the Company's right, title and interest in
and to the RRB Property and the proceeds thereof as set forth in the
Sale Agreement would constitute an absolute sale of such assets by the
Company to the Issuer, so that (a) such RRB Property (including the
collections thereon) would not be property of the bankruptcy estate of
the Company under Section 541(a) of the Bankruptcy Code, (b) the
bankruptcy court would not compel the turnover of such RRB Property or
the proceeds thereof to the Company under Section 542 of the Bankruptcy
Code, and (c) the Issuer's rights in the RRB Property and the proceeds
thereof would not be impaired by the operation of Section 362(a) of the
Bankruptcy Code; and (ii) neither the Issuer nor its assets and
liabilities would be substantively consolidated with the assets and
liabilities of the Company.
(k) The Representative shall have received on the Closing Date an
opinion letter or letters of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel to the Issuer, dated the Closing Date, in form and
substance reasonably satisfactory to the Representative, to the effect
that: (i) if properly presented to a Delaware court, a Delaware court
applying Delaware law, would conclude that (x) in order for a person to
file a voluntary bankruptcy petition on behalf of the Issuer, the
affirmative vote of the Issuer's Sole Member (as defined the LLC
Agreement) and the affirmative vote of all of the Directors (including
the Independent Directors (as defined in the LLC Agreement)), as
provided in Section 2.07(b) of the LLC Agreement of the Issuer, is
required, and (y) such provision, contained in Section 2.07(b) of the
LLC Agreement, that requires the affirmative vote of the Issuer's Sole
Member and the affirmative vote of all of the Directors (including the
Independent Directors) in order for a person to file a voluntary
bankruptcy petition on behalf of the Issuer, constitutes a legal, valid
and binding agreement of the Sole Member and is enforceable against the
Sole Member, in accordance with its terms; (ii) the LLC Agreement
constitutes a legal, valid and binding agreement of the Sole Member
thereunder, and is enforceable against the Sole Member in accordance
with its terms; (iii) under the provisions of Article 9 of the Delaware
UCC that, as of the Closing Date, are to become effective on July 1,
2001 ("Revised Delaware Article 9"), the security interest in the RRB
Property, the other Collateral, and the proceeds thereof created by the
Indenture in favor of the Trustee is perfected; (iv) the UCC search
report described in such opinion sets forth the proper filing office(s)
and the proper debtors necessary to identify those persons who under
Revised Delaware Article 9 have on file financing statements against the
Issuer covering the RRB Property, the other Collateral, or the proceeds
thereof as of the search date set forth in such UCC search report; the
UCC search report identifies no person who has filed with the filing
offices set forth in such UCC search report a financing statement
describing the RRB Property, the other Collateral, or the proceeds
thereof prior to the search date set forth in such UCC search report;
and (v) no further action with respect to the recording or filing of the
Indenture, any indentures supplemental thereto, any financing
statements, any continuation statements, or any other documents or
filings will be necessary under Revised Delaware Article 9 prior to
March 31, 2002, to perfect the security interest in the RRB Property,
the other Collateral, and the proceeds thereof created by the Indenture
in favor of the Trustee.
(l) The Bonds shall have been rated in the highest long-term
rating category by each of the Rating Agencies.
(m) On or prior to the Closing Date, the Company shall have
delivered to the Representative evidence, in form and substance
reasonably satisfactory to the Representative, (i) that appropriate
filings have been made in accordance with the Statute and other
applicable law to perfect the transfer of the RRB Property by the
Company to the Issuer pursuant to the Sale Agreement, including any
necessary filings with the NHPUC and the filing of the UCC financing
statements in the office of the Secretary of the State of New Hampshire,
and (ii) that appropriate filings have been made in accordance with the
Statute and applicable law to perfect the security interest in the RRB
Property, the other Collateral, and the proceeds thereof created by the
Indenture in favor of the Trustee, including any necessary filings with
the NHPUC and the filing of the UCC financing statements in the office
of the Secretary of the State of New Hampshire and the office of the
Secretary of State of the State of Delaware.
(n) On or prior to the Closing Date, the Issuer shall have
delivered to the Representative copies of the UCC search reports
referred to in Sections 6 (c)(xv), and 6 (k)(iv) of this Agreement,
along with copies of all filings referenced in such search reports.
(o) On or prior to the Closing Date, the Issuer shall have
delivered to the Representative copies, certified to the satisfaction of
the Representative, of the NHPUC's issuance of the Finance Order
relating to the RRB Property and the Issuance Advice Letter.
(p) On or prior to the Closing Date, the Issuer and the Company
shall have furnished or caused to be furnished to the State Treasurer
copies of the certificates, opinions and documents required to be
delivered to the Representative under this Agreement, including being
included as an addressee of, or receiving a letter entitling the State
Treasurer to rely on, each legal opinion addressed to the rating
agencies or the parties to the transactions and each related
certificate, if any, other than the opinion of counsel for the
Underwriters.
(q) Prior to the Closing Date, the Issuer and the Company shall
have furnished to the Representative such further information,
certificates, opinions and documents as the Representative may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the Representative. Notice of such cancellation shall be given to the Issuer
in writing or by telephone or electronic mail confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Day, Xxxxx & Xxxxxx, Hartford, Connecticut, on the
Closing Date.
7.Expenses. Upon the sale of the Bonds, the Issuer will pay or
cause to be paid all costs and expenses incident to the performance of the
obligations of the Company, the Issuer and the Underwriters hereunder and
under the Basic Documents and of the office of the State Treasurer in
accordance with the Statute, including, without limiting the generality of
the foregoing, all costs, taxes and expenses incident to the issuance and
delivery of the Bonds to the Underwriters, all fees, disbursements and
expenses of the Company's, the Issuer's, the State Treasurer's and the
Underwriters' counsel and accountants, and the State Treasurer's financial
advisors, all costs and expenses incident to the preparation, printing and
filing of the Registration Statement (including all exhibits thereto), any
preliminary prospectus, the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus and any amendments thereof or supplements
thereto, all costs and expenses incurred in connection with blue sky
qualifications, examining the legality of the Bonds for the investment and
the rating of the Bonds, all costs and expenses of the Trustee, all costs and
expenses incurred in the acquisition or preparation of documents required to
be delivered by the Company or the Issuer in connection with the closing of
the transactions contemplated hereby, all costs and expenses required in
connection with any filing with the National Association of Securities
Dealers in connection with the transactions contemplated hereby, and all
costs and expenses of the printing and distribution of all documents in
connection with the Bonds.
If the sale of the Bonds provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part
of the Company or the Issuer to perform any agreement herein or comply with
any provision hereof other than by reason of a default (including under
Section 9) by any of the Underwriters, the Company and the Issuer will,
jointly and severally, reimburse the Underwriters upon demand for all out-of-
pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by the Underwriters in connection with the proposed
purchase and sale of the Bonds.
8.Indemnification and Contribution.
(a) The Company and the Issuer will, jointly and severally,
indemnify and hold harmless each Underwriter , the directors, officials,
officers, members, consultants, counsel, employees and agents of the
State Treasurer and the State of New Hampshire, each Underwriter and
each person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for
the registration of the Bonds as originally filed or in any amendment
thereof, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, any untrue statement or alleged untrue statement
of a material fact contained in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that neither the Company nor the Issuer will
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Issuer or the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion
therein. This indemnity agreement will be in addition to any liability
which the Company and the Issuer may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, the Issuer, the State Treasurer and the State of
New Hampshire, each of their directors, officials and employees, each of
their officers (if any) who signs the Registration Statement, and each
person who controls the Company or the Issuer within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Issuer to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Issuer or the Company by or on behalf of such
Underwriter through the Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Issuer and the Company acknowledge that the
statements set forth in the second full paragraph, the third sentence of
the fourth full paragraph and the fifth full paragraph under the heading
"Underwriting" and the third full paragraph (other than the last
sentence thereof) under the heading "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representative, confirm that such statements
are correct in all material respects.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company, the Issuer and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, the Issuer and one or more
of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company, Issuer and the
Underwriters, respectively, from the offering of the Bonds. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company, the Issuer and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company, the Issuer
and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. In no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Bonds) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Bonds purchased by such
Underwriter hereunder. The relative benefits received by the Company or
the Issuer shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) of the Bonds, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates
to information provided by the Company, the Issuer or the Underwriters.
The Company, the Issuer and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Issuer or the Company
within the meaning of either the Act or the Exchange Act, each officer
of the Issuer or the Company who shall have signed the Registration
Statement and each director of the Issuer or the Company shall have the
same rights to contribution as the Issuer or the Company, subject in
each case to the applicable terms and conditions of this paragraph. The
Underwriters' obligations in this paragraph to contribute are several in
proportion to their respective underwriting obligations and not joint.
9.Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Bonds agreed to be purchased by
such Underwriter or Underwriters hereunder the Representative may in its
discretion arrange for the Underwriters or another party or other parties to
purchase such Bonds on the terms contained herein. If within 36 hours after
such default by any Underwriter the Representative does not arrange for the
purchase of such Bonds, the nondefaulting Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Bonds set forth opposite the names of all the remaining
Underwriters) the Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Bonds set forth in Schedule II hereto, the nondefaulting Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Bonds, and if such nondefaulting Underwriters do not
purchase all the Bonds, this Agreement will terminate without liability to
any nondefaulting Underwriter, the Issuer or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representative shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Issuer
and the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given
to the Company and the Issuer prior to delivery of and payment for the Bonds,
if prior to such time there shall have occurred (i) any change, or any
development involving a prospective change, in or affecting (A) the business,
properties or financial condition of the Company or the Issuer, (B) the RRB
Property, the Bonds, the Finance Order or the Statute, the effect of which,
in the judgment of the Representative, materially impairs the investment
quality of the Bonds or makes it impractical or inadvisable to market the
Bonds; (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (iii) a suspension or material
limitation in trading in the securities of the Company; (iv) a general
moratorium on commercial banking activities shall have been declared either
by Federal, New York state or New Hampshire state authorities or (v) any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Representative, impracticable or inadvisable
to proceed with the offering or delivery of the Bonds as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, the Issuer or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or of the Company, the Issuer or any of the
officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Bonds. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder shall be in
English and in writing, and any such notice, direction, consent or waiver may
be given by United States mail, courier service, facsimile transmission or
electronic mail (confirmed by telephone, United States mail or courier
service in the case of notice by facsimile transmission or electronic mail)
or any other customary means of communication, and any such notice,
direction, consent or waiver shall be effective when delivered, or if mailed,
three days after deposit in the United States mail with proper postage for
ordinary mail prepaid, and if sent to the Representative, to it at the
address specified on the first page hereto; and if sent to the Company, to it
at Public Service Company of New Hampshire, 0000 Xxx Xxxxxx, X.X. Xxx 000,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000, Attention: Assistant Treasurer - Finance;
and if sent to the Issuer, to it at PSNH Funding LLC, 0000 Xxx Xxxxxx, X.X.
Xxx 000, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000, Attention: President. The parties
hereto, by notice to the others, may designate additional or different
addresses for subsequent communications.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
16. Miscellaneous. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when
the SEC's office in Washington, D.C. is open for business.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Issuer and the several Underwriters.
Very truly yours,
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
PSNH FUNDING LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
CONFIRMED AND ACCEPTED
on behalf of each of the Underwriters
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxx Xxxxxxx, Managing Director
(Xxxxxxx Xxxxx Xxxxxx Inc.)
SCHEDULE I to the
Underwriting Agreement
Underwriting Agreement dated April 20, 2001
Registration Statement No. 333-55830
Representative:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Title: PSNH Funding LLC
$525,000,000 PSNH Funding LLC Bonds, Series 2001-1
Principal amount, Price to Public, Underwriting Discounts and Commissions and
Proceeds to Issuer:
Underwriting Scheduled
Total Principal Price to Discounts and Proceeds to Maturity Final Maturity
Amount of Class Public Commissions Issuer Date Date
Per Class A-1
Bond $75,211,483 99.97979 0.207573% 99.77222 May 1, 2003 May 1, 2005
Per Class A-2 $214,649,395 99.93578 0.375000% 99.56078 November 1, 2008 November 1, 2010
Bond
Per Class A-3
Bond $235,139,122 99.96116 0.500000% 99.46116 May 1, 2013 May 1, 2015
Original Issue Discount (if any): $244,370
Redemption provisions: Optional Redemption and Mandatory
Redemption as set forth in Article X of the
Indenture
Closing Date, Time and Location: April 25, 2001
9:00 a.m., Eastern Daylight Time
Hartford, Connecticut
Type of Offering: Non-Delayed Offering
SCHEDULE II to the
Underwriting Agreement
Class Class Class
Underwriters A-1 A-2 A-3
Bonds Bonds Bonds
Salomon Xxxxx Xxxxxx Inc. $34,221,225 $ 97,665,475 $106,988,300
Bear, Xxxxxxx & Co. Inc. $18,426,813 $ 52,589,102 $ 57,609,085
Xxxxxxx, Xxxxx & Co. $ 5,014,099 $ 14,309,960 $ 15,675,941
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated $ 5,014,099 $ 14,309,960 $ 15,675,941
Xxxxxx Xxxxxxx & Co.Incorporated $ 5,014,099 $ 14,309,960 $ 15,675,941
Banc One Capital Markets, Inc. $ 1,880,287 $ 5,366,235 $ 5,878,478
Barclays Capital Inc. $ 1,880,287 $ 5,366,235 $ 5,878,478
Fleet Securities, Inc. $ 1,880,287 $ 5,366,235 $ 5,878,478
UBS Warburg LLC $ 1,880,287 $ 5,366,235 $ 5,878,478
Total $75,211,483 $ 214,649,395 $235,139,122
