Exhibit 1.1
PSNH FUNDING LLC BONDS
PSNH FUNDING LLC
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
UNDERWRITING AGREEMENT
New York, New York
April __, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
as representative of the several
Underwriters named herein
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 Bonds, Series 2001-1
identified in Schedule I hereto (the "Bonds").
The Bonds will be issued pursuant to an Indenture, dated as of April __,
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 __, 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 __, 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
2
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
3
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
4
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 Prospectus, any Preliminary Final Prospectus and the Final
Prospectus and is duly qualified as a foreign corporation to do
business and in good standing in every jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary and in which the failure to so qualify would
have a materially adverse effect on the Issuer; and the Issuer has
all requisite power and authority to issue the Bonds and purchase
the RRB Property as described in the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus.
(v) The Company is a validly existing corporation in good
standing under the laws of the State of New Hampshire; the Company
has all requisite power and authority 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.
5
(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
6
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.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Bonds shall
be made at 9:00 AM (Eastern Daylight Time) on April __, 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 (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
7
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
8
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."
9
(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) 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
10
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, ▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, outside counsel for the Company, portions of which may be delivered
by ▇▇▇▇, 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 and
[all franchises, licenses and permits necessary] to own its
properties, conduct its business as presently conducted and 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 Changes 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
11
consummation of the transactions contemplated herein, except such
as have been obtained in accordance with the 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) [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
12
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 [date to
coincide with first annual opinion required by the Indenture], 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,
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, outside counsel for the Issuer and the Company,
portions of which may be delivered by ▇▇▇▇, 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
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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;
13
(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
14
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;
15
(ix) The transfer of RRB Property and the other Collateral by
the Company to the Issuer on the date of issuance of the Bonds is
free and clear of the lien created by any indenture, agreement or
other instrument to which the Company is a party or by which the
Company is bound;
(x) 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;
(xi) 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; and the issuance and sale of
the Bonds, the terms of the Bonds, the provisions of the Basic
Documents and the consummation of the transactions contemplated by
the Basic Documents comply in all respects with the requirements of
the Statute and the Finance Order;
(xii) (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; (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 perfected, which security interest is valid and
enforceable against the Issuer (subject to rights arising under the
first priority lien arising under RSA 369-B:7, VIII described in
paragraph (xvi) below);
(xiii) (A) the Statute creates, upon the effective date of the
Finance Order, 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 or 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; (C) the Statute provides that conflicting
Statutory Liens on RRB Property arising under RSA 369-B:7, VIII rank
in order of time of
16
perfection; and (D) the provisions of the Statute vest in the
Trustee the Statutory Lien for the payment of the Secured
Obligations;
(xiv) (A) the provisions of the Indenture create in favor of
the Trustee a security interest under Article 9 of the New Hampshire
UCC in the right, title and interest whether now owned or hereafter
acquired, of the Issuer in respect of the Collateral (other than RRB
Property), such security interest shall attach to the UCC Collateral
as it comes into existence; (C) financing statements which describe
the UCC 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 is perfected
in the UCC Collateral granted by the Issuer under the Indenture,
which security interest is valid and enforceable against the Issuer;
(xv) 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;
(xvi) 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;
(xvii) (A) the Finance Order has been duly issued and
authorized by the NHPUC and the Finance Order and, giving effect to
the Issuance Advice Letter, is
17
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);
(xviii) 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;
(xix) under the Taking Clauses of the United States and the
State of New Hampshire Constitutions, 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 above 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) the Contract Clauses of the United States and New
Hampshire Constitutions prohibit the State of New Hampshire,
including the PUC, from taking any action of a legislative
character, including but not limited to repealing or amending the
Statute or the PUC's Finance Order, or refusing to take any action
required of the State under its pledge and agreement with the
Bondholders that would substantially impair the value of the RRB
Property or substantially reduce or alter or substantially impair
the RRB Charges to be imposed or that would prevent the payment of
the Bonds on a timely basis, unless such action is a reasonable
exercise of the State of New Hampshire's sovereign powers and of a
character reasonable and appropriate to the public purpose
justifying such action;
(xxi) the Issuer will not be subject to utility gross receipts
taxes or any other taxes imposed by the State of New Hampshire or by
any of its agencies, instrumentalities or political subdivisions;
(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;
18
(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 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 [date to coincide with first
annual opinion required under the Indenture], 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.
19
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 ▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇
& Young, LLP, counsel to the Trustee, and portions of which may be
delivered by ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
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
20
the Issuer, whether or not arising from transactions in the ordinary
course of business, or (y) the RRB Property, except as set forth in
or contemplated in the Final Prospectus (including any supplement
thereto).
(g) The 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
21
References to the Final Prospectus in this paragraph (h) include any
supplement thereto at the date of the letter.
In addition, at the Execution Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇ & ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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
22
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)(xxv), 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.
23
(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, ▇▇▇▇▇ & ▇▇▇▇▇▇, 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
24
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 and the Issuer, each of their directors, 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 under the heading
"Underwriting" or "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
25
several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representative, confirm that such
statements are correct.
(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,
26
Issuer and the Underwriters, respectively, from the offering of the
Bonds; PROVIDED, HOWEVER, that 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. 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. 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
27
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, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Treasurer - Finance; and if sent to the Issuer, to it at PSNH Funding LLC, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, P.O. Box 330, Manchester, New Hampshire, Attention: President. The
parties hereto, by notice to the others, may designate additional or different
addresses for subsequent communications.
28
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.
29
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:
-------------------------------------
Name:
Title:
PSNH FUNDING LLC
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED
on behalf of each of the Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INc.
By:
-------------------------------
(▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.)
SCHEDULE I TO THE
UNDERWRITING AGREEMENT
Underwriting Agreement dated April __, 2001
Registration Statement No. 333-55830
Representative:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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:
Total Price to Underwriting Proceeds to Scheduled Final
Principal Public Discounts and Issuer Final Termination
Amount of ------------ Commissions ----------- Distribution Date
Class --------------- Date -----------
---------- -------------
Per Class A-1 $ % % %
Bond
Per Class A-2 $ % % %
Bond
Per Class A-3 $ % % %
Bond
Total $ $ $ $
Original Issue Discount (if any): $________________
Redemption provisions: Optional Redemption and Mandatory
Redemption as set forth in Article X of
the Indenture
Closing Date, Time and Location: April __, 2001
9:00 a.m., Eastern Daylight Time
Hartford, Connecticut
Type of Offering: Non-Delayed Offering
SCHEDULE II TO THE
UNDERWRITING AGREEMENT
Class A-1 Class A-2 Class A-3
UNDERWRITERS Bonds Bonds Bonds
----------------------------------- --------- --------- ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Banc One Capital Markets, Inc.
Barclays Capital Inc.
Fleet Securities, Inc.
UBS Warburg LLC
--------- --------- ---------
TOTAL.......................... $ $ $
========= ========= =========