Exhibit 10.1
PURCHASE AND SALE AGREEMENT
between
PSNH FUNDING LLC 2
Issuer
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
Seller
Dated as of January 30, 2002
This PURCHASE AND SALE AGREEMENT, dated as of January 30, 2002, is
between PSNH Funding LLC 2, a Delaware limited liability company (the "Issuer"),
and Public Service Company of New Hampshire, a New Hampshire corporation
(together with its successors in interest to the extent permitted hereunder, the
"Seller").
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 words and phrases shall have the following meanings:
"Administration Agreement" means the Administration Agreement dated as
of 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 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
supplemented from time to time.
"Authorized Officer" means an officer of the Seller listed on the list
of 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.
"Basic Documents" means, collectively, this Agreement, the Indenture,
the 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
registered on the Register.
"Bonds" means the PSNH Funding LLC 2 Bonds issued under the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on 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 Indenture.
-2-
"Closing Date" means January 30, 2002.
"Collection Account" has the meaning specified in Section 8.02(a) of
the Indenture.
"Corporate Trust Office" has the meaning specified in Section 1.01(a)
of the Indenture.
"Date of Breach" means, with respect to the repurchase obligation
specified 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 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 6, 2001 (Order No. 23,859).
"Fitch" means Fitch, Inc. or its successor.
"Indemnified Person" has the meaning specified in Section 5.01(c),
Section 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
Issuer and the Trustee, as amended and supplemented from time to time.
"Independent" has the meaning specified in Section 1.01(a) of the
Indenture.
"Interest Reserve Subaccount" has the meaning specified in Section
8.02(a) of the Indenture.
"Issuance Advice Letter" means the initial Issuance Advice Letter,
dated January 25, 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
Indenture.
"Issuer" has the meaning set forth in the preamble of this Agreement.
"Lien" means a security interest, lien, charge, pledge or encumbrance
of any kind.
"Losses" has the meaning specified in Section 5.01(e).
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor.
"NHPUC" means the New Hampshire Public Utilities Commission and any
successor thereto.
"NHPUC Regulations" has the meaning specified in Section 1.01 of the
Servicing Agreement.
"Officer's Certificate" means a certificate signed by the chairman of
the board, the chief executive officer, the president, the vice chairman of the
board, any vice 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
Indenture.
"Opinion of Counsel" means one or more written opinions of counsel who
may 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 Indenture.
"Overcollateralization Subaccount" has the meaning specified in Section
8.02(a)
-3-
of the Indenture.
"Person" means any individual, corporation, limited liability company,
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 16, 2002 offering the
Bonds.
"Rating Agencies" means, collectively, S&P, Xxxxx'x and Fitch.
"Register" has the meaning specified in Section 2.05 of the Indenture.
"Repurchase Date" means the date that is five Business Days after the
date 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).
"Required Capital Level" has the meaning specified in Section 1.01(a)
of the Indenture.
"Required Interest Reserve Level" has the meaning specified in Section
1.01(a) of the Indenture.
"Required Overcollateralization Level" has the meaning specified in
Section 1.01(a) of the Indenture.
"RRB Charge" means the portion (which may become all) of the Seller's
"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 Servicing Agreement.
"RRB Property" means the RRB Property that exists under Approval Nos.
20 to 22 of the Finance Order.
"RSA" means New Hampshire Revised Statutes Annotated.
"Seller" has the meaning set forth in the preamble of this Agreement.
"Servicer Default" means an event specified in Section 7.01 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement dated as of the
date 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 Hill Companies, Inc. or its successor.
"State Treasurer" means the Treasurer of the State of New Hampshire.
"Statute" means RSA Chapter 369-B.
"Trustee" means the Person acting as trustee under the Indenture.
"Underwriting Agreement" means the Underwriting Agreement dated as of
January 16, 2002 among Public Service Company of New Hampshire, the Issuer and
the
-4-
underwriters named therein.
Section 1.02. Other Definitional Provisions.
(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
Issuer's delivery to or upon the order of the Seller of $49,385,134, 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 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
-5-
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
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
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
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,
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 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
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
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
-6-
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
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.
(a) Title. It is the intention of the parties hereto that the
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 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 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
-7-
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 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 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 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
-8-
such RRB Charge will in fact be realized.
(e) Creation of RRB Property. Upon the effectiveness of the
Finance 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 Seller under the caption "The Seller and Servicer" in the
Prospectus is correct in all material respects.
Section 3.09. Limitations on Representations and Warranties.
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
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
-9-
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 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 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 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 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 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.
(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
-10-
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
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 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
-11-
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 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
-12-
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 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,
-13-
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 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
-14-
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 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
-15-
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 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
-16-
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 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
-17-
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:
(a) if to the Seller, to
if prior to April 1, 2002:
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
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
-18-
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 00000
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
-19-
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
(e) if to S&P, to
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx 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.
-20-
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.
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]
-21-
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: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
Seller
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
-S-22-
