Exhibit 4.3.7.2
SECOND SUPPLEMENT
Dated as of May 1, 1995
among
BUSINESS FINANCE AUTHORITY OF THE
STATE OF NEW HAMPSHIRE
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
Supplementing and Amending the Series E Loan and Trust Agreement
Dated as of May 1, 1991, as amended by a First Supplement
Dated as of December 1, 1993
TABLE OF CONTENTS
ARTICLE I: INTRODUCTION AND DEFINITIONS
Section 101. Description of the Agreement and the Parties
Section 102. Definitions
ARTICLE II: BOOK-ENTRY ONLY SYSTEM
Section 201. Registration of Bonds in the Book-Entry Only System
ARTICLE III: MISCELLANEOUS
Section 301. Original Agreement Affirmed
Section 302. Severability
Section 303. Counterparts
Section 304. Receipt of Documents
Section 305. Captions
Section 306. Governing Law
EXHIBIT A
EXHIBIT B
ARTICLE I: INTRODUCTION AND DEFINITIONS
Section 101. Description of the Agreement and the Parties. This SECOND
SUPPLEMENT (the "Second Supplement") is entered into as of May 1, 1995 by the
Business Finance Authority of the State of New Hampshire (with its
successors, the "Authority"), a body corporate and politic created under New
Hampshire Revised Statutes Annotated 162-A:3 formerly known as The Industrial
Development Authority of the State of New Hampshire; Public Service Company
of New Hampshire (with its successors, the "Company"), a New Hampshire
corporation, and State Street Bank and Trust Company, a Massachusetts trust
company, as Trustee (with its successors, the "Trustee"). This Second
Supplement supplements and amends the Series E Loan and Trust Agreement dated
as of May 1, 1991 (the "Original Agreement") among the Authority, the Company
and the Trustee, as previously amended by a First Supplement dated as of
December 1, 1993 (the "First Supplement" and collectively with the Original
Agreement and this Second Supplement, the "Agreement"), and is entered into
pursuant to Clauses 1101(a)(v) and (viii) of the Original Agreement. The
primary purpose of this Second Supplement is to provide for the establishment
of a book-entry system of registration for the outstanding $69,700,000
principal amount of The Industrial Development Authority of the State of New
Hampshire Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project-1991 Taxable Series E), and at the election of the Company,
for other Bonds outstanding under the Agreement from time to time.
In consideration of the mutual promises contained in this Second Supplement,
the rights conferred and the obligations assumed hereby, and other good and
valuable consideration, the receipt of which is hereby acknowledged, each of
the Company, the Authority and the Trustee agree, assign, covenant, grant,
pledge, promise, represent and warrant as set forth herein for their own
benefit and for the benefit of the Bondowners and the Bank.
Section 102. Definitions. (a) Words. Unless otherwise defined in this
Second Supplement, or unless the context otherwise requires, the terms
defined in the Original Agreement, as amended by the First Supplement, shall
have the same meaning in this Second Supplement.
ARTICLE II: BOOK-ENTRY ONLY SYSTEM
Section 201. Registration of Bonds in the Book-Entry Only System.
(a) Notwithstanding any provision of the Agreement to the contrary, the
provisions of this Section 201 shall apply with respect to any Bonds (except
the 1993 Series E Bonds) registered to CEDE & CO. or any other nominee of The
Depository Trust Company ("DTC") while the Book-Entry Only System (meaning
the system of registration described in this Section 201) is in effect. The
Book-Entry Only System shall be in effect for any series of Bonds or portion
thereof issued in or converted to any Mode or Rate Period within the
Multiannual Mode if so specified by the Company prior to the issuance in or
conversion to that Mode or Rate Period, subject to the provisions below
concerning termination of the Book-Entry Only System. Until it revokes such
specification in its discretion, the Company hereby specifies that the Book-
Entry Only System shall be in effect while the 1991 Series E Bonds are in
Flexible Mode. Notwithstanding any provision of this Section 201 to the
contrary, the provisions of this Section 201 shall not apply to the 1993
Series E Bonds, which are subject to the Book-Entry Only System described in
Section 303 of the First Supplement.
(b) The Bonds in or to be in the Book-Entry Only System shall be issued in
the form of a separate single authenticated fully registered Bond for each
separate Mode or Rate Period. Any legend required to be on the Bonds by DTC
may be added by the Trustee or Paying Agent. The form of Book-Entry Only
System 1991 Series E Bond in the Flexible Mode is attached hereto as Exhibit
A. On the date of original delivery thereof or date of conversion of the any
Bonds to a Mode or Rate Period in which the Book-Entry Only System is in
effect, as applicable, such Bonds shall be registered in the registry books
of the Paying Agent in the name of CEDE & CO., as nominee of The Depository
Trust Company as agent for the Authority in maintaining the Book-Entry Only
System. With respect to Bonds registered in the registry books kept by the
Paying Agent in the name of CEDE & CO., as nominee of DTC, the Authority, the
Paying Agent, the Company, the Remarketing Agent and the Trustee shall have
no responsibility or obligation to any Participant (which means securities
brokers and dealers, banks, trust companies, clearing corporations and
various other entities, some of whom or their representatives own DTC) or to
any Beneficial Owner (which means, when used with reference to the Book-Entry
Only System, the person who is considered the beneficial owner of the Bonds
pursuant to the arrangements for book entry determination of ownership
applicable to DTC) with respect to the following: (A) the accuracy of the
records of DTC, CEDE & CO. or any Participant with respect to any ownership
interest in the Bonds, (B) the delivery to or from any Participant, any
Beneficial Owner or any other person, other than DTC, of any notice with
respect to the Bonds, including any notice of redemption or tender (whether
mandatory or optional), or (C) the payment to any Participant, any Beneficial
Owner or any other person, other than DTC, of any amount with respect to the
principal or premium, if any, or interest on the Bonds. The Paying Agent
shall pay all principal of and premium, if any, and interest on the Bonds
only to or upon the order of DTC, and all such payments shall be valid and
effective fully to satisfy and discharge the Authority's obligations with
respect to the principal of and premium, if any, and interest on Bonds to the
extent of the sum or sums so paid. No person other than DTC shall be
entitled to receive an authenticated Bond evidencing the obligation of the
Authority to make payments of principal and premium, if any, and interest
pursuant to this Agreement. Upon delivery by DTC to the Paying Agent of
written notice to the effect that DTC has determined to substitute a new
nominee in place of CEDE & CO., the words "CEDE & CO." in the Agreement shall
refer to such new nominee of DTC.
(c) Upon receipt by the Trustee or the Paying Agent of written notice from
DTC to the effect that DTC is unable or unwilling to discharge its
responsibilities with respect to any Bonds, the Authority shall issue and the
Paying Agent shall transfer and exchange such Bonds as requested by DTC in
appropriate amounts and in authorized denominations, and whenever DTC
requests the Authority, the Paying Agent and the Trustee to do so, the
Trustee, the Paying Agent and the Authority will, at the expense of the
Company, cooperate with DTC in taking appropriate action after reasonable
notice (A) to arrange for a substitute bond depository willing and able upon
reasonable and customary terms to maintain custody of such Bonds or (B) to
make available for transfer and exchange such Bonds registered in whatever
name or names and in whatever authorized denominations as DTC shall
designate.
(d) In the event the Company determines that the Beneficial Owners of any
Bonds in the Book-Entry Only System should be able to obtain Bond
certificates, the Company may so notify DTC, the Paying Agent and the
Trustee, whereupon DTC will notify the Participants of the availability
through DTC of such Bond certificates. In such event, the Authority shall
issue and the Paying Agent shall transfer and exchange Bond certificates as
requested by DTC in appropriate amounts and in authorized denominations.
Whenever DTC requests the Paying Agent to do so, the Paying Agent will
cooperate with DTC in taking appropriate action after reasonable notice to
make available for transfer and exchange Bonds registered in whatever name or
names and in whatever authorized denominations as DTC shall designate.
(e) Notwithstanding any other provision of the Agreement to the contrary, so
long as any 1991 Series E Bond is registered in the name of CEDE & CO., as
nominee of DTC, all payments with respect to the principal of, Purchase
Price, premium, if any, and interest on such 1991 Series E Bond and all
notices with respect to such 1991 Series E Bond shall be made and given,
respectively, to DTC as provided in the Letter of Representation (the
"Representation Letter"), the form of which is included as Exhibit B attached
to this Second Supplement. The form of such Representation Letter may be
modified or replaced in a manner consistent with the provisions of the
Agreement upon conversion or reconversion of the 1991 Series E Bonds to a
Mode or Rate Period in which the Book-Entry Only System is in effect.
(f) Notwithstanding any provision in Subsection 301(h) or Section 310 of the
Original Agreement to the contrary, so long as any of the Bonds outstanding
are held in the Book-Entry Only System, if less than all of such Bonds are to
be converted or redeemed upon any conversion or redemption of Bonds
hereunder, the particular Bonds or portions of Bonds to be converted or
redeemed shall be selected by DTC in such manner as DTC may determine.
(g) So long as the Book-Entry Only System is in effect, a Beneficial Owner
who elects to have its Bonds purchased or tendered pursuant to the Agreement
shall effect delivery by causing a Participant to transfer the Beneficial
Owner's interest in the Bonds pursuant to the Book-Entry Only System. The
requirement for physical delivery of Bonds in connection with a demand for
purchase or a mandatory purchase will be deemed satisfied when the ownership
rights in the Bonds are transferred in accordance with the Book-Entry Only
System.
(h) So long as the Book-Entry Only System is in effect, the Remarketing
Agent shall communicate to DTC information concerning the purchasers of
Tendered Bonds as may be necessary or appropriate, and, notwithstanding any
provision in the Representation Letter to the contrary, the Remarketing Agent
shall continue to remit to the Paying Agent interest rate determination
information pursuant to the terms of the Agreement.
ARTICLE III: MISCELLANEOUS
Section 301. Original Agreement Affirmed. Except as otherwise expressly
supplemented and amended by this Second Supplement, the provisions of the
Original Agreement, the First Supplement and the Assumption Agreement remain
unchanged, binding, and in full force and effect.
Section 302. Severability. In the event that any provision of this Second
Supplement shall be held to be invalid in any circumstance, such invalidity
shall not affect any other provisions or circumstances.
Section 303. Counterparts. This Second Supplement may be executed and
delivered in any number of counterparts, each of which shall be deemed to be
an original, but such counterparts together shall constitute one and the same
instrument.
Section 304. Receipt of Documents. By its execution and delivery of this
Second Supplement the Trustee acknowledges receipt of the opinion of Bond
Counsel required to accompany this Second Supplement pursuant to Subsection
1101(c) of the Original Agreement.
Section 305. Captions. The captions and table of contents of this Second
Supplement are for convenience only and shall not affect the construction
hereof.
Section 306. Governing Law. This instrument shall be governed by the laws
of State of New Hampshire.
IN WITNESS WHEREOF, the Business Finance Authority of the State of New
Hampshire has caused this Second Supplement to be signed and its official
seal to be impressed hereon by its Executive Director; Public Service Company
of New Hampshire has caused this Second Supplement to be signed and its
corporate seal to be impressed hereon by an authorized officer; and State
Street Bank and Trust Company, as Trustee, has caused this Second Supplement
to be signed and its corporate seal to be impressed hereon by an authorized
officer.
BUSINESS FINANCE AUTHORITY OF
THE STATE OF NEW HAMPSHIRE
(Seal)
By:
/s/Jack Donovan
Executive Director
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
(Seal)
By:
/s/John B. Keane
Treasurer
STATE STREET BANK AND TRUST COMPANY
as Trustee
(Seal)
By:
/s/Daniel Golden
Assistant Vice President
The undersigned hereby consents
to this Second Supplement.
SWISS BANK CORPORATION, NEW YORK BRANCH
By:
Name:/s/Darryl M. Monasebian
Title:Associate Director
/s/Teresa A. Portela
Associate Director