PURCHASE AND SALE AGREEMENT
between
PSNH FUNDING LLC 2
Issuer
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
Seller
Dated as of January __, 2002
This PURCHASE AND SALE AGREEMENT, dated as of January __, 2002, is between
PSNH Funding LLC 2, a Delaware limited liability company (the "Issuer"), and
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Public Service Company of New Hampshire, a New Hampshire corporation (together
with its successors in interest to the extent permitted hereunder, the
"Seller").
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RECITALS
WHEREAS, the Issuer desires to purchase the RRB Property (as defined
herein) created pursuant to the Statute and the Finance Order (each as defined
herein); and
WHEREAS, the Seller is willing to sell the RRB Property to the Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
Article 1
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
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words and phrases shall have the following meanings:
"Administration Agreement" means the Administration Agreement dated as of
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the date hereof between Public Service Company of New Hampshire, as
Administrator, and the Issuer, as amended and supplemented from time to time.
"Affiliate" means, with respect to any specified Person, any other Person
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controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Purchase and Sale Agreement, as amended and
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supplemented from time to time.
"Authorized Officer" means an officer of the Seller listed on the list of
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Authorized Officers delivered by the Seller to the Trustee on the date of
issuance of the Bonds (as such list may be modified or supplemented by the
Seller from time to time).
"Back-Up Security Interest" has the meaning specified in Section 2.01.
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"Basic Documents" means, collectively, this Agreement, the Indenture, the
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Servicing Agreement, the Administration Agreement, the Underwriting Agreement
and the Fee and Indemnity Agreement.
"Bondholder" or "Holder" means the Person in whose name a Bond is
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registered on the Register.
"Bonds" means the PSNH Funding LLC 2 Bonds issued under the Indenture.
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"Business Day" means any day other than a Saturday, a Sunday or a day on
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which banking institutions or trust companies in New York, New York, Hartford,
Connecticut, Manchester, New Hampshire or Wilmington, Delaware are authorized or
obligated by law, regulation or executive order to remain closed.
"Capital Subaccount" has the meaning specified in Section 8.02(a) of the
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Indenture.
"Closing Date" means January __, 2002.
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"Collection Account" has the meaning specified in Section 8.02(a) of the
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Indenture.
"Corporate Trust Office" has the meaning specified in Section 1.01(a) of
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the Indenture.
"Date of Breach" means, with respect to the repurchase obligation specified
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in Section 5.01(b), the date of a breach of a representation or warranty that
triggers such repurchase obligation.
"Fee and Indemnity Agreement" means the Fee and Indemnity Agreement dated
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as of the date hereof between the Issuer and the Trustee, as amended and
supplemented from time to time.
"Finance Order" means the order of the NHPUC, DE 01-089, issued on December
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6, 2001 (Order No. 23,859).
"Fitch" means Fitch, Inc. or its successor.
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"Indemnified Person" has the meaning specified in Section 5.01(c), Section
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5.01(d), Section 5.01(e) or in Section 5.01(h), for the purposes set forth
therein.
"Indenture" means the Indenture dated as of the date hereof between the
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Issuer and the Trustee, as amended and supplemented from time to time.
"Independent" has the meaning specified in Section 1.01(a) of the
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Indenture.
"Interest Reserve Subaccount" has the meaning specified in Section 8.02(a)
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of the Indenture.
"Issuance Advice Letter" means the initial Issuance Advice Letter, dated
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January __, 2002, filed with the NHPUC by the Seller pursuant to the Finance
Order.
"Issuance Date" has the meaning specified in Section 2.01(c)(i) of the
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Indenture.
"Issuer" has the meaning set forth in the preamble of this Agreement.
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"Lien" means a security interest, lien, charge, pledge or encumbrance of
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any kind.
"Losses" has the meaning specified in Section 5.01(e).
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"Moody's" means Xxxxx'x Investors Service, Inc. or its successor.
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"NHPUC" means the New Hampshire Public Utilities Commission and any
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successor thereto.
"NHPUC Regulations" has the meaning specified in Section 1.01 of the
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Servicing Agreement.
"Officer's Certificate" means a certificate signed by the chairman of the
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board, the chief executive officer, the president, the vice chairman of the
board, any vice
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president, the treasurer, any assistant treasurer, the secretary, any assistant
secretary, the controller or the finance manager of the Seller.
"Operating Expense" has the meaning specified in Section 1.01(a) of the
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Indenture.
"Opinion of Counsel" means one or more written opinions of counsel who may
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be an employee of or counsel to the party providing such opinion of counsel,
which counsel shall be reasonably acceptable to the party receiving such opinion
of counsel.
"Outstanding Amount" has the meaning specified in Section 1.01(a) of the
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Indenture.
"Overcollateralization Subaccount" has the meaning specified in Section
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8.02(a) of the Indenture.
"Person" means any individual, corporation, limited liability company,
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estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Prospectus" means the prospectus dated January __, 2002 offering the
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Bonds.
"Rating Agencies" means, collectively, S&P, Xxxxx'x and Fitch.
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"Register" has the meaning specified in Section 2.05 of the Indenture.
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"Repurchase Date" means the date that is five Business Days after the date
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that is (i) if the terms of Section 5.01(b)(i)(A) and Section 5.01(b)(i)(B)(2)
are applicable, two Business Days after the Date of Breach if the Seller fails
to make the deposit required by Section 5.01(b)(i)(B)(2) or 90 days after the
Date of Breach if the Seller makes the deposit required by Section
5.01(b)(i)(B)(2); (ii) if the terms of Section 5.01(b)(ii) are applicable, 90
days after the Date of Breach; and (iii) if the terms of Section 5.01(b)(i)(A)
and Section 5.01(b)(i)(B)(1) are applicable, 90 days after the Date of Breach.
"Repurchase Price" has the meaning specified in Section 5.01(b)(i).
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"Required Capital Level" has the meaning specified in Section 1.01(a) of
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the Indenture.
"Required Interest Reserve Level" has the meaning specified in Section
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1.01(a) of the Indenture.
"Required Overcollateralization Level" has the meaning specified in Section
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1.01(a) of the Indenture.
"RRB Charge" means the portion (which may become all) of the Seller's
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"stranded cost recovery charge" designated pursuant to the Finance Order and RSA
369-B:2, XIII as the RRB Charge, as the same may be adjusted from time to time
as provided in the Finance Order.
"RRB Charge Collections" has the meaning specified in Section 1.01 of the
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Servicing Agreement.
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"RRB Property" means the RRB Property that exists under Approval Nos.
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20 to 22 of the Finance Order.
"RSA" means New Hampshire Revised Statutes Annotated.
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"Seller" has the meaning set forth in the preamble of this Agreement.
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"Servicer Default" means an event specified in Section 7.01 of the
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Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement dated as of the date
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hereof between Public Service Company of New Hampshire, as Servicer, and the
Issuer, as amended and supplemented from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
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Hill Companies, Inc. or its successor.
"State Treasurer" means the Treasurer of the State of New Hampshire.
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"Statute" means RSA Chapter 369-B.
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"Trustee" means the Person acting as trustee under the Indenture.
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"Underwriting Agreement" means the Underwriting Agreement dated as of
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January __, 2002 among Public Service Company of New Hampshire, the Issuer and
the underwriters named therein.
Section 1.02. Other Definitional Provisions.
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(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof," "herein," "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation".
(c) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms.
ARTICLE 2
CONVEYANCE OF RRB PROPERTY
Section 2.01. Conveyance of RRB Property. In consideration of the
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Issuer's delivery to or upon the order of the Seller of $____________, the
Seller does hereby irrevocably sell, transfer, assign, set over and otherwise
convey to the Issuer, WITHOUT RECOURSE OR WARRANTY, except as specifically set
forth herein, all right, title and interest of the Seller in and to the RRB
Property (such sale, transfer, assignment, setting over and conveyance of the
RRB Property includes, to the fullest extent permitted by the Statute, the
assignment of all revenues, collections, claims, payments, money or proceeds of
or arising from the RRB Charge pursuant to the Finance Order) and copies of all
books
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and records related thereto. Such sale, transfer, assignment, setting over and
conveyance is hereby expressly stated to be a sale and, pursuant to RSA 369-B:6,
V, shall be treated as an absolute transfer of all of the Seller's right, title
and interest in (as in a true sale), and not as a pledge or other financing of,
the RRB Property. If such sale, transfer, assignment, setting over and
conveyance is held by any court of competent jurisdiction not to be a true sale
as provided in RSA 369-B:6, V, then such sale, transfer, assignment, setting
over and conveyance shall be treated as the creation of a security interest in
the RRB Property and, without prejudice to its position that it has absolutely
transferred all of its rights in the RRB Property to the Issuer, the Seller
hereby grants to the Issuer a security interest in the RRB Property (including,
to the fullest extent permitted by the Statute, all revenues, collections,
claims, payments, money or proceeds of or arising from the RRB Charge pursuant
to the Finance Order) to secure a payment obligation incurred by the Seller in
respect of the amount paid by the Issuer to the Seller pursuant to this
Agreement (the "Back-Up Security Interest"). Such sale, transfer, assignment,
setting over and conveyance of the RRB Property includes the right to use the
Seller's computer software system to access and create copies of all books and
records related to the RRB Property.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to Section 3.09 hereof, the Seller makes the following
representations and warranties, as of the Closing Date, on which the Issuer has
relied in acquiring the RRB Property.
Section 3.01. Organization and Good Standing. The Seller is duly
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organized and validly existing as a corporation in good standing under the laws
of the State of New Hampshire, with the requisite corporate power and authority
to own its properties as such properties are currently owned and to conduct its
business as such business is now conducted by it, and has the requisite
corporate power and authority to own the RRB Property.
Section 3.02. Due Qualification. The Seller is duly qualified to do
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business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, licenses or approvals (except where the failure to so qualify or
obtain such licenses and approvals would not be reasonably likely to have a
material adverse effect on the Seller's business, operations, assets, revenues
or properties).
Section 3.03. Power and Authority. The Seller has the requisite
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corporate power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Seller.
Section 3.04. Binding Obligation. This Agreement constitutes a legal,
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valid and binding obligation of the Seller enforceable against it in accordance
with its terms, subject to applicable insolvency, reorganization, moratorium,
fraudulent transfer and other laws relating to or affecting creditors' or
secured parties' rights generally from time
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to time in effect and to general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law.
Section 3.05. No Violation. The consummation of the transactions
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contemplated by this Agreement and the fulfillment of the terms hereof do not:
(i) conflict with or result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a default under, the
articles of organization or by-laws of the Seller, or any material indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound; (ii) result in the creation or imposition of any Lien upon any of the
Seller's properties pursuant to the terms of any such indenture, agreement or
other instrument (other than any Lien that may be granted under the Basic
Documents or any Lien created pursuant to RSA 369-B:7, VIII); or (iii) violate
any existing law or any existing order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Seller
or its properties.
Section 3.06. No Proceedings. There are no proceedings pending and, to
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the Seller's knowledge, there are no proceedings threatened and, to the Seller's
knowledge, there are no investigations pending or threatened, before any court,
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties involving
or relating to the Seller or the Issuer or, to the Seller's knowledge, any other
Person: (i) asserting the invalidity of this Agreement, any of the other Basic
Documents, the Bonds, the Statute or the Finance Order, (ii) seeking to prevent
the issuance of the Bonds or the consummation of any of the transactions
contemplated by this Agreement or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Basic Documents or the Bonds
or (iv) seeking to adversely affect the federal or state income tax
classification of the Bonds as debt.
Section 3.07. Approvals. No approval, authorization, consent, order or
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other action of, or filing with, any court, federal or state regulatory body,
administrative agency or other governmental instrumentality is required in
connection with the execution and delivery by the Seller of this Agreement, the
performance by the Seller of the transactions contemplated hereby or the
fulfillment by the Seller of the terms hereof, except those that have been
obtained or made and those that the Seller, in its capacity as Servicer under
the Servicing Agreement, is required to make in the future pursuant to the
Servicing Agreement and post closing filings required in connection therewith.
Section 3.08. The RRB Property.
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(a) Title. It is the intention of the parties hereto that the
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transfer and assignment herein contemplated constitute a sale of the RRB
Property from the Seller to the Issuer and that no interest in, or title to, the
RRB Property shall be part of the Seller's estate in the event of the filing of
a bankruptcy petition by or against the Seller under any bankruptcy law. No
portion of the RRB Property has been sold, transferred, assigned or pledged by
the Seller to any Person other than the Issuer. On the Closing Date, immediately
upon the sale hereunder, the Seller has transferred, sold and conveyed the
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RRB Property to the Issuer, free and clear of all Liens (including the Lien
of the Seller's first mortgage indenture but excluding any Lien created pursuant
to RSA 369-B:7, VIII and any Lien that may be granted under the Basic
Documents), and pursuant to RSA 369-B:6, V such transfer shall be treated as an
absolute transfer of all of the Seller's right, title and interest (as in a true
sale), and not as a pledge or other financing of, the RRB Property.
(b) Transfer Filings. On the Closing Date, immediately upon the sale
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hereunder, the RRB Property has been validly transferred and sold to the Issuer,
the Issuer shall own all such RRB Property free and clear of all Liens
(including the Lien of the Seller's first mortgage indenture but excluding any
Lien created pursuant to RSA 369-B:7, VIII and any Lien that may be granted
under the Basic Documents) and all filings to be made by the Seller (including
filings with the NHPUC under the Statute) necessary in any jurisdiction to give
the Issuer a valid first priority perfected ownership interest and to grant to
the Trustee a first priority perfected security interest (subject to any Lien
created pursuant to RSA 369-B:7, VIII and any Lien that may be granted under the
Basic Documents) in the RRB Property have been made. No further action is
required to maintain the Issuer's first priority perfected ownership interest or
the Trustee's first priority perfected security interest (subject to any Lien
created pursuant to RSA 369-B:7, VIII and any Lien that may be granted under the
Basic Documents). Filings have also been made to the extent required by
applicable law in any jurisdiction to perfect the Back-Up Security Interest
granted by the Seller to the Issuer (subject to any Lien created pursuant to RSA
369-B:7, VIII and any Lien that may be granted under the Basic Documents).
(c) Finance Order and Issuance Advice Letter; Other Approvals. On the
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Closing Date, under the laws of the State of New Hampshire and the United States
in effect on the Closing Date, (i) the Finance Order pursuant to which the RRB
Property has been created is in full force and effect; (ii) the Bondholders are
entitled to the protections of the Statute and, accordingly, the Finance Order
is not revocable by the Commission; (iii) the State of New Hampshire may neither
limit nor alter the RRB Charge, RRB Property, the Finance Order and all rights
thereunder, in a manner that would substantially impair the rights of
Bondholders, absent a demonstration that an impairment is narrowly-tailored and
is necessary to advance an important public interest, such as responding to a
"great public calamity," until the Bonds, together with accrued interest, are
fully met and discharged; provided that the State of New Hampshire is not
precluded from such limitation or alteration if and when adequate provision is
made by law for the protection of the Issuer, the Bondholders and the Trustee;
(iv) except for periodic adjustments to the RRB Charge required under the
Statute, the NHPUC does not have authority, either by rescinding, altering or
amending the Finance Order or otherwise, to revalue or revise for ratemaking
purposes the stranded costs or the costs of providing, recovering, financing or
refinancing the stranded costs, to determine that the RRB Charge is unjust or
unreasonable or in any way to reduce or impair the value of RRB Property either
directly or indirectly by taking the RRB Charge into account when setting other
rates for the Seller; nor are the amount of revenues arising with respect
thereto subject to reduction, impairment, postponement or termination; (v) the
process by which the Finance Order was adopted and approved, and the Finance
Order and Issuance Advice
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Letter themselves, comply with all applicable laws, rules and regulations;
(vi) the Issuance Advice Letter has been filed in accordance with the Finance
Order; (vii) no other approval, authorization, consent, order or other action
of, or filing with, any court, Federal or state regulatory body, administrative
agency or other governmental instrumentality is required in connection with the
creation or sale of the RRB Property, except those that have been obtained or
made and post closing filings required in connection therewith and those that
the Seller, in its capacity as Servicer under the Servicing Agreement, is
required to make in the future pursuant to the Servicing Agreement; and (viii)
the State of New Hampshire, in the exercise of its executive or legislative
powers, may not repeal or amend the Statute or the Finance Order, or take any
action in contravention of the pledge by the State of New Hampshire in RSA
369-B:6, II, without paying just compensation to the Bondholders, as determined
by a court of competent jurisdiction, if this action would constitute a
permanent appropriation of a substantial property interest of Bondholders in the
RRB Property and deprive the Bondholders of their reasonable expectations
arising from their investments in the Bonds.
(d) Assumptions. On the Closing Date, based upon the information
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available to the Seller on the Closing Date, the assumptions used in calculating
the initial RRB Charge are reasonable and are made in good faith.
Notwithstanding the foregoing, the Seller makes no representation or warranty
that the assumptions used in calculating such RRB Charge will in fact be
realized.
(e) Creation of RRB Property. Upon the effectiveness of the Finance
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Order and the Issuance Advice Letter: (i) all of the RRB Property constitutes an
existing property right; (ii) the RRB Property includes the right, title and
interest in and to all revenues, collections, claims, payments, money, or
proceeds of or arising from the RRB Charge, as adjusted from time to time
pursuant to the Finance Order, and all rights to obtain adjustments to the RRB
Charge pursuant to the Finance Order; and (iii) subject to the cap on the
Seller's "stranded cost recovery charge" set forth in the Statute and the
Finance Order, the owner of the RRB Property is legally entitled to collect
payments in respect of the RRB Charge in the aggregate sufficient to pay the
interest on and principal of the Bonds, to pay the fees and expenses of
servicing the Bonds, to replenish the Capital Subaccount to the Required Capital
Level and to fund the Overcollateralization Subaccount to the Required
Overcollateralization Level, to fund the Interest Reserve Subaccount to the
Required Interest Reserve Level and to enforce all other material rights
conferred in the Finance Order and the Statute until the earlier of the eighth
anniversary of the issuance of the Bonds and the date on which the Bonds are
paid in full. Notwithstanding the foregoing, the Seller makes no representation
or warranty that any amounts actually collected in respect of the RRB Charge
will in fact be sufficient to meet payment obligations with respect to the Bonds
(other than as provided in the Finance Order with respect to other components of
the "stranded cost recovery charge" (as defined in the Statute)).
(f) Prospectus. As of the date hereof, the information describing the
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Seller under the caption "The Seller and Servicer" in the Prospectus is correct
in all material respects.
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Section 3.09. Limitations on Representations and Warranties.
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Notwithstanding any other provisions of this Agreement, the Seller will not be
in breach of any representation or warranty as a result of a change in law by
means of a legislative enactment or constitutional amendment or (if such means
become available in the future) referendum or initiative petition.
Notwithstanding anything to the contrary in this Agreement, the Seller makes no
representation or warranty that any amounts actually collected in respect of the
RRB Charge will in fact be sufficient to meet payment obligations with respect
to the Bonds or that the assumptions used in calculating the RRB Charge will in
fact be realized nor shall the Seller be obligated to reduce, or accept a
reduction of, any rates or charges to which it would otherwise be entitled in
respect of services rendered or to be rendered to customers in order to permit
the payment of the RRB Charge (other than as provided in the Finance Order with
respect to other components of the "stranded cost recovery charge" (as defined
in the Statute)).
ARTICLE 4
COVENANTS OF THE SELLER
Section 4.01. Corporate Existence. So long as any of the Bonds are
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outstanding, the Seller (a) will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
organization and (b) will obtain and preserve its qualification to do business,
in each case to the extent that in each such jurisdiction such existence or
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents to which the Seller
is a party and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions contemplated
hereby.
Section 4.02. No Liens. Except for the conveyances hereunder or any Lien
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under RSA 369-B:7, VIII, the Seller will not sell, pledge, assign or transfer,
or grant, create, or incur any Lien on, any of the RRB Property, or any interest
therein, and the Seller shall defend the right, title and interest of the Issuer
and the Trustee in, to and under the RRB Property against all claims of third
parties claiming through or under the Seller. Public Service Company of New
Hampshire, in its capacity as Seller, will not at any time assert any Lien
against, or with respect to, any of the RRB Property.
Section 4.03. Delivery of Collections. If the Seller receives any payments
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in respect of the RRB Charge or the proceeds thereof when it is not acting as
the Servicer, the Seller agrees to pay to the Servicer all payments received by
it in respect thereof as soon as practicable after receipt thereof by it.
Section 4.04. Notice of Liens. The Seller shall notify the Issuer and the
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Trustee promptly after becoming aware of any Lien on any of the RRB Property,
other than the conveyances hereunder, any Lien under the Basic Documents or any
Lien under RSA 369-B:7, VIII.
Section 4.05. Compliance with Law. The Seller hereby agrees to comply with
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its organizational and governing documents and all laws, treaties, rules,
regulations and determinations of any governmental instrumentality applicable to
it, except to the extent that failure to so comply would not adversely affect
the Issuer's or the Trustee's interests in the RRB Property or under any of the
other Basic Documents to which the Seller is
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party or the Seller's performance of its obligations hereunder or under any of
the other Basic Documents to which it is party.
Section 4.06. Covenants Related to Bonds and RRB Property.
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(a) So long as any of the Bonds are outstanding, the Seller
shall treat the Bonds as debt of the Issuer and not of the Seller, except for
financial accounting or tax reporting purposes.
(b) So long as any of the Bonds are outstanding, the Seller
shall indicate in its financial statements that it is not the owner of the RRB
Property and that the assets of the Issuer are not available to pay creditors of
the Seller or any of its Affiliates (other than the Issuer).
(c) So long as any of the Bonds are outstanding, the Seller
shall disclose the effects of all transactions between the Seller and the Issuer
in accordance with generally accepted accounting principles.
(d) So long as any of the Bonds are outstanding, the Seller
shall not own or purchase any Bonds.
(e) The Seller agrees that, upon the sale by the Seller of
the RRB Property to the Issuer pursuant to this Agreement, (i) to the fullest
extent permitted by law, including the Statute and applicable NHPUC Regulations,
the Issuer shall have all of the rights originally held by the Seller with
respect to the RRB Property, including the right (subject to the terms of the
Servicing Agreement) to exercise any and all rights and remedies to collect any
amounts payable by any customer or third party supplier in respect of the RRB
Property, notwithstanding any objection or direction to the contrary by the
Seller and (ii) any payment by any customer or third party supplier to the
Issuer shall discharge such customer's or third party supplier's obligations in
respect of the RRB Property to the extent of such payment, notwithstanding any
objection or direction to the contrary by the Seller.
(f) So long as any of the Bonds are outstanding, (i)(A) the
Seller shall affirmatively certify and confirm that it has sold the RRB Property
to the Issuer (other than for financial accounting or tax reporting purposes),
and (B) the Seller shall not make any statement or reference in respect of the
RRB Property that is inconsistent with the ownership thereof by the Issuer
(other than for financial accounting or tax reporting purposes), and (ii) the
Seller shall not take any action in respect of the RRB Property except solely in
its capacity as the Servicer thereof pursuant to the Servicing Agreement or as
otherwise contemplated by the Basic Documents.
Section 4.07. Protection of Title. The Seller shall execute and file
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such filings, including filings with the NHPUC pursuant to the Statute and
Uniform Commercial Code filings, and cause to be executed and filed such
filings, all in such manner and in such places as may be required by law fully
to preserve, maintain and protect the ownership or security interest of the
Issuer and the Trustee in the RRB Property and the Back-Up Security Interest,
including all filings required under the Statute and the applicable Uniform
Commercial Code relating to the transfer of the ownership or security interest
in the RRB Property by the Seller to the Issuer and the granting of a security
interest in the RRB Property by the Issuer to the Trustee and the Back-Up
Security Interest and the
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continued perfection of such ownership or security interest. The Seller shall
deliver (or cause to be delivered) to the Issuer and the Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. The Seller shall institute any action or
proceeding necessary to compel performance by the NHPUC or the State of New
Hampshire of any of their obligations or duties under the Statute or the Finance
Order, and the Seller agrees to take such legal or administrative actions,
including defending against or instituting and pursuing legal actions and
appearing or testifying at hearings or similar proceedings, as may be reasonably
necessary (i) to protect the Issuer, the Bondholders, the Trustee, the State of
New Hampshire, the State Treasurer, agencies of the State of New Hampshire and
any of their respective affiliates, officials, officers, directors, employees,
consultants, counsel and agents from claims, state actions or other actions or
proceedings of third parties which, if successfully pursued, would result in a
breach of any representation set forth in Article III or (ii) to block or
overturn any attempts to cause a repeal of, modification of or supplement to the
Statute, the Finance Order, any Advice Letter (as defined in the Indenture), the
Settlement Agreement (as defined in the Finance Order) (to the extent it
adversely affects the rights of Bondholders or the validity or value of the RRB
Property) or the rights of Bondholders by executive action, legislative
enactment or constitutional amendment that would be adverse to the Issuer, the
Trustee or the Bondholders. If the Servicer performs its obligations under
Section 5.02(d) of the Servicing Agreement in all respects, such performance
shall be deemed to constitute performance of the Seller's obligations pursuant
to clause (ii) of the immediately preceding sentence. In such event, the Seller
agrees to assist the Servicer as reasonably necessary to perform its obligations
under Section 5.02(d) of the Servicing Agreement in all respects. The costs of
any such actions or proceedings shall be payable from RRB Charge Collections as
an Operating Expense in accordance with the priorities set forth in Section
8.02(d) of the Indenture. The Seller's obligations pursuant to this Section 4.07
shall survive and continue notwithstanding the fact that the payment of
Operating Expenses pursuant to Section 8.02(d) of the Indenture may be delayed
(it being understood that the Seller may be required to advance its own funds to
satisfy its obligations hereunder).
Section 4.08. Nonpetition Covenants. Notwithstanding any prior
---------------------
termination of this Agreement or the Indenture, but subject to the NHPUC's right
to order the sequestration and payment of revenues arising with respect to the
RRB Property notwithstanding any bankruptcy, reorganization or other insolvency
proceedings with respect to the Seller pursuant to RSA 369-B:7, V or RSA
369-B:7, VIII, the Seller shall not, prior to the date which is one year and one
day after the termination of the Indenture, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Issuer under any
Federal or state bankruptcy, insolvency or similar law, appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of the property of the Issuer, or ordering
the winding up or liquidation of the affairs of the Issuer.
Section 4.09. Taxes.
-----
(a) So long as any of the Bonds are outstanding, the Seller
shall, and shall cause each of its subsidiaries to, pay all material taxes,
assessments and
-11-
governmental charges imposed upon it or any of its properties or assets or with
respect to any of its franchises, business, income or property before any
penalty accrues thereon if the failure to pay any such taxes, assessments and
governmental charges would, after any applicable grace periods, notices or other
similar requirements, result in a lien on the RRB Property; provided that no
such tax need be paid if the Seller or one of its subsidiaries is contesting the
same in good faith by appropriate proceedings promptly instituted and diligently
conducted and if the Seller or such subsidiary has established appropriate
reserves as shall be required in conformity with generally accepted accounting
principles.
(b) The Seller represents, warrants and covenants that any
New Hampshire income taxes, including without limitation the New Hampshire
Business Profits Tax imposed under the provisions of New Hampshire RSA Chapter
77-A (taking into account credits in respect of the New Hampshire Business
Enterprise Tax imposed under RSA Chapter 77-E), associated with the Issuer will
be allocated to, and paid by, the Seller in accordance with the Amended and
Restated NU Tax Allocation Agreement, dated as of January 1, 1990, as amended
(the "NU Tax Sharing Agreement"), and that the applicable provisions of the NU
Tax Sharing Agreement, which currently provide for such treatment by their
reliance on federal income tax principles in allocating state income tax
liabilities, shall not be amended or modified by the Seller in contravention of
this Section 4.09(b) for so long as the Bonds are outstanding.
Section 4.10. Additional Sales of RRB Property. So long as any of the
--------------------------------
Bonds are outstanding, the Seller shall not sell any RRB property (as defined in
the Statute) to secure another issuance of rate reduction bonds (as defined in
the Statute) if it would cause the then existing ratings on any class of Bonds
from the Rating Agencies to be withdrawn or downgraded.
Section 4.11. Issuance Advice Letter. The Seller hereby agrees not to
----------------------
withdraw the filing of the Issuance Advice Letter with the NHPUC.
Section 4.12. Maintenance of Working Papers. So long as any of the
-----------------------------
Bonds are outstanding, the Seller shall keep and maintain any and all working
papers, reports and other documents used by the firm of Independent certified
public accountants in the preparation of its letters delivered on the Issuance
Date pursuant to Section 2.10(g) of the Indenture and Section 6(h) of the
Underwriting Agreement.
Article 5
THE SELLER
----------
Section 5.01. Liability of Seller; Indemnities.
--------------------------------
(a) The Seller shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by the Seller under
this Agreement.
(b) (i) In the event of a breach by the Seller of any
representation and warranty specified in Sections 3.08(c) or 3.08(e) that has a
material adverse effect on the Bondholders, the Seller shall repurchase the RRB
Property from the Issuer at a purchase price equal to the then outstanding
principal amount of the Bonds and all
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accrued and unpaid interest thereon, excluding any premium or penalty of any
kind (the "Repurchase Price"), as of the Repurchase Date; provided, however,
----------------
that the Seller shall not be obligated to repurchase the RRB Property if (A)
within 90 days after the Date of Breach such breach is cured or the Seller takes
remedial action such that there is not and will not be a material adverse effect
on the Bondholders as a result of such breach and (B) either (1) if the Seller
had, immediately prior to the Date of Breach, a long term debt rating of at
least "A3" by Moody's and "BBB" or the equivalent by S&P or Fitch, and the
Seller enters into a binding agreement with the Issuer to pay any amounts
necessary so that all interest payments due on the Bonds during such 90-day
period will be paid in full, or (2) if the Seller does not have such long term
debt ratings, the Seller deposits, within two Business Days after the Date of
Breach, an amount in escrow with the Trustee sufficient, taking into account
amounts on deposit in the Collection Account which will be available for such
purpose, to pay all interest payments which will become due on the Bonds during
such 90-day period.
(ii) In the event of a breach by the Seller of any representation and
warranty specified in Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.08(a) or 3.08(b)
that has a material adverse effect on the Bondholders, if within 90 days after
the Date of Breach such breach has not been cured or the Seller has not taken
remedial action such that there is not and will not be a material adverse effect
on the Bondholders as a result of such breach, then the Seller shall repurchase
the RRB Property from the Issuer for the Repurchase Price on the Repurchase
Date.
(iii) Notwithstanding any other provision of this Agreement, upon the
payment by the Seller of the Repurchase Price pursuant to this Section 5.01(b),
neither the Issuer nor any other Person shall have any other claims, rights or
remedies against the Seller under, arising from or with respect to this
Agreement, except as set forth in Section 5.01(h).
(c) Subject to Section 5.01(i), the Seller shall indemnify the Issuer, the
Trustee, the State of New Hampshire, the State Treasurer, agencies of the State
of New Hampshire and the Bondholders (each an "Indemnified Person" for purposes
------------------
of this Section 5.01(c) and Section 5.01(i)) for, and defend and hold harmless
each such Indemnified Person from and against, any and all taxes (other than
taxes imposed on Bondholders solely as a result of their ownership of Bonds)
that may at any time be imposed on or asserted against any such Person under
existing law as of the Closing Date as a result of the sale of the RRB Property
to the Issuer, including any sales, gross receipts, general corporation,
tangible personal property, privilege or license taxes; provided, however, that
the Bondholders shall be entitled to enforce their rights against the Seller
under this Section 5.01(c) solely through a cause of action brought for their
benefit by the Trustee.
(d) Subject to Section 5.01(i), the Seller shall indemnify the Issuer, the
Trustee, the State of New Hampshire, the State Treasurer, agencies of the State
of New Hampshire and the Bondholders (each an "Indemnified Person" for purposes
------------------
of this Section 5.01(d) and Section 5.01(i)) for, and defend and hold harmless
each such Indemnified Person from and against, any and all taxes that may be
imposed on or asserted against any such Indemnified Person under existing law as
of the Closing Date
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as a result of the issuance and sale by the Issuer of the Bonds, or the other
transactions contemplated herein, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes; provided,
however, that the Bondholders shall be entitled to enforce their rights against
the Seller under this Section 5.01(d) solely through a cause of action brought
for their benefit by the Trustee. The Seller shall be reimbursed for any
payments under this Section 5.01(d) from RRB Charge Collections as an Operating
Expense in accordance with the priorities set forth in Section 8.02(d) of the
Indenture.
(e) Subject to Section 5.01(i), the Seller shall indemnify the Issuer and
the Bondholders (each an "Indemnified Person" for purposes of this Section
------------------
5.01(e) and Section 5.01(i)) for, and defend and hold harmless each such Person
from and against, any and all liabilities, obligations, losses, actions, suits,
claims, damages, payments, costs or expenses of any kind whatsoever
(collectively, "Losses") that may be imposed on, incurred by or asserted against
------
each such Indemnified Person as a result of (i) the Seller's willful misconduct
or negligence in the performance of its duties or observance of its covenants
under this Agreement, or (ii) the Seller's breach in any material respect of any
of its representations and warranties contained in this Agreement (other than
the representations and warranties specified in Sections 3.01, 3.03, 3.04, 3.05,
3.06, 3.08(a), 3.08(b), 3.08(c) or 3.08(e), the breach of which are subject to
the repurchase obligation set forth in Section 5.01(b)), except in the case of
both clauses (i) and (ii) to the extent of Losses either resulting from the
willful misconduct or gross negligence of such Indemnified Person or resulting
from a breach of a representation and warranty made by such Indemnified Person
in any of the Basic Documents that gives rise to the Seller's breach; provided,
however, that the Bondholders shall be entitled to enforce their rights against
the Seller under this indemnification solely through a cause of action brought
for their benefit by the Trustee; provided, further, that the Seller may, at its
election and in full satisfaction of its obligations under this Section 5.01(e),
repurchase the RRB Property at the Repurchase Price, in which case neither the
Issuer nor any other Person shall have any other claims, rights or remedies
against the Seller under, arising from or with respect to this Agreement, except
as set forth in Section 5.01(h).
(f) Indemnification under Sections 5.01(c), 5.01(d), 5.01(e) and 5.01(h)
shall survive the resignation or removal of the Trustee and the termination of
this Agreement and shall include reasonable fees and out-of-pocket expenses of
investigation and litigation (including reasonable attorneys' fees and
expenses), except as otherwise provided in this Agreement.
(g) Without prejudice to any of the other rights of the parties, the Seller
will not be in breach of any representation or warranty as a result of a change
in law by means of a legislative enactment or constitutional amendment or (if
such means become available in the future) referendum or initiative petition.
Notwithstanding anything to the contrary in this Agreement, the Seller makes no
representation or warranty that any amounts actually collected in respect of the
RRB Charge will in fact be sufficient to meet payment obligations with respect
to the Bonds or that the assumptions used in calculating the RRB Charge will in
fact be realized nor shall the Seller be obligated to reduce, or accept a
reduction of, any rates or charges to which it would otherwise be entitled in
respect of services rendered or to be rendered to customers in
-14-
order to permit the payment of the RRB Charge (other than as provided in the
Finance Order with respect to other components of the "stranded cost recovery
charge" (as defined in the Statute)).
(h) Subject to Section 5.01(i), the Seller shall indemnify and hold
harmless the Trustee, the State of New Hampshire, the State Treasurer, agencies
of the State of New Hampshire and any of their respective affiliates, officials,
officers, directors, employees, consultants, counsel and agents (each an
"Indemnified Person" for purposes of this Section 5.01(h) and Section 5.01(i))
------------------
against any and all Losses incurred by any of such Indemnified Persons as a
result of (i) the Seller's willful misconduct or negligence in the performance
of its duties or observance of its covenants under this Agreement or (ii) the
Seller's breach in any material respect of any of its representations and
warranties contained in this Agreement, except in the case of both clauses (i)
and (ii) to the extent of Losses either resulting from the willful misconduct or
gross negligence of such Indemnified Person or resulting from a breach of a
representation or warranty made by such Indemnified Person in any of the Basic
Documents that gives rise to the Seller's breach.
(i) The Seller shall not be required to indemnify any Indemnified Person
under Sections 5.01(c), 5.01(d), 5.01(e) or 5.01(h) for any amount paid or
payable by such Indemnified Person in the settlement of any action, proceeding
or investigation without the written consent of the Seller, which consent shall
not be unreasonably withheld. Promptly after receipt by an Indemnified Person of
notice of its involvement in any action, proceeding or investigation, such
Indemnified Person shall, if a claim for indemnification in respect thereof is
to be made against the Seller under this Section 5.01, notify the Seller in
writing of such involvement. Failure by an Indemnified Person to so notify the
Seller shall relieve the Seller from the obligation to indemnify and hold
harmless such Indemnified Person under this Section 5.01 only to the extent that
the Seller suffers actual prejudice as a result of such failure. With respect to
any action, proceeding or investigation brought by a third party for which
indemnification may be sought under this Section 5.01, the Seller shall be
entitled to assume the defense of any such action, proceeding or investigation.
Upon assumption by the Seller of the defense of any such action, proceeding or
investigation, the Indemnified Person shall have the right to participate in
such action or proceeding and to retain its own counsel. The Seller shall be
entitled to appoint counsel of the Seller's choice at the Seller's expense to
represent the Indemnified Person in any action, proceeding or investigation for
which a claim of indemnification is made against the Seller under this Section
5.01 (in which case the Seller shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the Indemnified Person except
as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Seller's election to
appoint counsel to represent the Indemnified Person in an action, proceeding or
investigation, the Indemnified Person shall have the right to employ separate
counsel (including local counsel), and the Seller shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the Seller to represent the Indemnified Person 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 Person and the
Seller and the Indemnified Person shall have
-15-
reasonably concluded that there may be legal defenses available to it that
are different from or additional to those available to the Seller, (iii) the
Seller shall not have employed counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person within a reasonable time
after notice of the institution of such action or (iv) the Seller shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Seller. Notwithstanding the foregoing, the Seller shall not be obligated to
pay for the fees, costs and expenses of more than one separate counsel for the
Indemnified Persons (in addition to local counsel). The Seller will not, without
the prior written consent of the Indemnified Person, 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 may be
sought under this Section 5.01 (whether or not the Indemnified Person is an
actual or potential party to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of the Indemnified
Person from all liability arising out of such claim, action, suit or proceeding.
(j) The remedies of the Issuer and the Bondholders provided in this
Agreement are each such Person's sole and exclusive remedies against the Seller
for breach of its representations and warranties in this Agreement.
Section 5.02 Merger or Consolidation of, or Assumption of the Obligations
------------------------------------------------------------
of, Seller. Any Person (a) into which the Seller may be merged or consolidated,
----------
(b) that may result from any merger or consolidation to which the Seller shall
be a party or (c) that may succeed to the properties and assets of the Seller
substantially as a whole, which Person in the case described in the foregoing
clause (c) executes an agreement of assumption to perform every obligation of
the Seller hereunder, shall be the successor to the Seller under this Agreement
without further act on the part of any of the parties to this Agreement;
provided, however, that (i) if the Seller is the Servicer, no Servicer Default,
and no event which, after notice or lapse of time, or both, would become a
Servicer Default shall have occurred and be continuing, (ii) the Seller shall
have delivered to the Issuer and the Trustee an Officer's Certificate stating
that such consolidation, merger or succession and such agreement of assumption
comply with this Section and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with, (iii)
the Seller shall have delivered to the Issuer and the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel (A) such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent provided for in this Agreement relating to
such transaction have been complied with and (B) either (1) all filings to be
made by the Seller, including filings with the NHPUC pursuant to the Statute and
filings under the applicable Uniform Commercial Code, have been executed and
filed that are necessary to preserve and protect fully the interests of the
Issuer and the Trustee in the RRB Property and reciting the details of such
filings or (2) no such action shall be necessary to preserve and protect such
interests and (iv) the Rating Agencies shall have received prior written notice
of such transaction. When any Person acquires the properties and assets of the
Seller substantially as a whole and becomes the successor to the Seller in
accordance with the terms of this Section 5.02 and execution by such successor
of an agreement of assumption to perform every obligation of the Seller
hereunder, then upon satisfaction of
-16-
all of the other conditions of this Section 5.02, the Seller shall
automatically and without further notice be released from all of its obligations
hereunder.
Section 5.03. Limitation on Liability of Seller and Others. The Seller and
--------------------------------------------
any director, officer, employee or agent of the Seller may rely in good faith on
the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person, respecting any matters arising hereunder.
Article 6
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended by the Seller and
---------
the Issuer, with ten Business Days' prior written notice given to the Rating
Agencies and the prior written consent of the Trustee, but without the consent
of any of the Bondholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Bondholders; provided, however,
that such action shall not, as evidenced by an Officer's Certificate delivered
to the Issuer and the Trustee, adversely affect in any material respect the
interests of any Bondholder.
This Agreement may also be amended from time to time by the Seller and the
Issuer, with ten Business Days' prior written notice given to the Rating
Agencies and the prior written consent of the Trustee and the prior written
consent of the Holders of Bonds evidencing not less than a majority of the
Outstanding Amount of the Bonds affected thereby, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Bondholders.
It shall not be necessary for the consent of Bondholders pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 6.02. Notices. Unless otherwise specifically provided herein, all
-------
notices, directions, consents and waivers required under the terms and
provisions of this Agreement 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:
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(a) if to the Seller, to
if prior to April 1, 2002:
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX
if on or after April 1, 2002:
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx (email)
with a copy to:
Public Service Company of New Hampshire
c/o Northeast Utilities Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer - Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
(b) if to the Issuer, to
PSNH Funding LLC 2
c/o Public Service Company of New Hampshire
if prior to April 1, 2002:
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX
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if on or after April 1, 2002:
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx (email)
with a copy to:
Public Service Company of New Hampshire
c/o Northeast Utilities Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer - Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
(c) if to the Trustee, to
The Bank of New York
0 Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(d) if to Moody's, to
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: ABS Monitoring Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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(e) if to S&P, to
Standard & Poor's
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Surveillance Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(f) if to Fitch, to
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: ABS Surveillance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-mail: xxxx@xxxxxxxxxxxx.xxx
(g) as to each of the foregoing, at such other address as shall
be designated by written notice to the other parties.
Section 6.03. Assignment. Notwithstanding anything to the contrary
----------
contained herein, except as provided in Section 5.02, this Agreement may not be
assigned by the Seller.
Section 6.04. Limitations on Rights of Third Parties. The provisions of
--------------------------------------
this Agreement are solely for the benefit of the Seller, the Issuer, the
Bondholders, the Trustee, the State of New Hampshire, the State Treasurer,
agencies of the State of New Hampshire and the other Persons expressly referred
to herein, and such Persons shall have the right to enforce the relevant
provisions of this Agreement, except that the Bondholders shall be entitled to
enforce their rights against the Seller under this Agreement solely through a
cause of action brought for their benefit by the Trustee. Nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the RRB Property or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 6.05. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.06. Separate Counterparts. This Agreement may be executed by the
---------------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
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Section 6.07. Headings. The headings of the various Articles and Sections
--------
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 6.08. Governing Law. This Agreement shall be construed in
-------------
accordance with the laws of the State of New Hampshire, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 6.09. Assignment to Trustee. The Seller hereby acknowledges and
---------------------
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Trustee pursuant to the Indenture for the benefit of the
Bondholders of all right, title and interest of the Issuer in, to and under the
RRB Property and the proceeds thereof and the mortgage, pledge, assignment of,
and grant of a security interest by the Issuer to the Trustee in, any or all of
the Issuer's rights and obligations hereunder to the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase and
Sale Agreement to be duly executed by their respective officers as of the day
and year first above written.
PSNH FUNDING LLC 2,
Issuer
By: ______________________________________
Name: Xxxxx X. Xxxxx
Title: President
PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE,
Seller
By: ______________________________________
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
-S-1-
