Exhibit 10-1
PURCHASE AND SALE AGREEMENT between
PSNH FUNDING LLC
Issuer
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE Seller
Dated as of April 25, 2001
This PURCHASE AND SALE AGREEMENT, dated as of April 25, 2001, is between
PSNH Funding LLC, 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.
"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 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.
"Closing Date" means April 25, 2001.
"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 99-099 , issued on
September 8, 2000 (Order No. 23,550).
"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
April 23, 2001, 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) 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 April 20, 2001 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 Overcollateralization 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.
"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
April 20, 2001 among Public Service Company of New Hampshire, the Issuer and
the 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 $518,558,601.33, 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
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. Except as described under the caption
"Risk Factors - Bondholders could experience payment delays or losses as a
result of amendment, repeal or invalidation of the securitization statute,
breach of the state pledge or invalidation of the stranded cost recovery
charge - Appeal of settlement order" in the Prospectus, 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 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 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 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 14 years after "competition day" (as
defined in the Statute) 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 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 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
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 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) 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.
(i) 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.
(ii) 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 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 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
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 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:
(a) if to the Seller, to
0000 Xxx Xxxxxx
Xxxxxxxxxx, XX
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
c/o Public Service Company of New Hampshire 0000 Xxx 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: (860)
665-5457
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
(c) if to the Trustee, to
The Bank of New York
000 Xxxxxxx Xxxxxx Xxxxx 00 Xxxx
Xxx Xxxx, XX 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: (212) 553-
0573
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.
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]
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,
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
