Exhibit 10.3
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of April 25, 2001, is made by
and between PSNH Funding LLC, a Delaware limited liability company (together
with any successor thereto permitted under the Indenture, as hereinafter
defined, the "Issuer"), and Public Service Company of New Hampshire, a New
Hampshire corporation, as Administrator (together with its permitted
successors or assigns as administrator hereunder, the "Administrator").
RECITALS
A. WHEREAS, the Issuer is issuing the Bonds pursuant to the Indenture
dated as of the date hereof (as amended, modified or supplemented from time
to time in accordance with the provisions thereof, the "Indenture";
capitalized terms used herein and not defined herein shall have the meanings
assigned such terms in the Indenture), between the Issuer and The Bank of New
York, as Trustee (in such capacity, together with its successors and assigns
permitted under the Indenture, the "Trustee").
B. WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Bonds, including (i) a Purchase and Sale
Agreement dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Sale
Agreement"), between the Issuer and Public Service Company of New Hampshire,
as Seller (in such capacity, the "Seller"), (ii) a Servicing Agreement dated
as of the date hereof (as amended, modified or supplemented from time to time
in accordance with the provisions thereof, the "Servicing Agreement"),
between the Issuer and Public Service Company of New Hampshire, as Servicer
(in such capacity, together with its successors and assigns permitted under
the Servicing Agreement, the "Servicer"), (iii) an Underwriting Agreement
dated as of April 20, 2001 (as amended, modified or supplemented from time to
time in accordance with the provisions thereof, the "Underwriting
Agreement"), among the Issuer, Public Service Company of New Hampshire, and
the Underwriters named therein, (iv) the Indenture, (v) a Fee and Indemnity
Agreement dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Fee
Agreement") between the Trustee and the Issuer (the Sale Agreement, the
Servicing Agreement, the Underwriting Agreement, the Indenture, and the Fee
Agreement are hereinafter referred to collectively as the "Related
Agreements");
C. WHEREAS, pursuant to the Related Agreements, the Issuer is required
to perform certain duties in connection with the Bonds and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and to maintain
its existence and comply with applicable laws;
D. WHEREAS, the Issuer has no employees and does not intend to hire
any employees, and consequently desires to have the Administrator perform
certain duties of the Issuer referred to in the preceding clause, and to
provide such additional services consistent with the terms of this Agreement
and the Related Agreements as the Issuer may from time to time request; and
E. WHEREAS, the Administrator has the capacity to provide the services
and the facilities required hereby and is willing to perform such services
and provide such facilities for the Issuer on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I.
Duties of Administrator
Section 1.01. Appointment of Administrator: Acceptance of Appointment.
The Issuer hereby appoints the Administrator, and the Administrator hereby
accepts such appointment, to perform the Administrator's obligations pursuant
to this Agreement on behalf of and for the benefit of the Issuer in
accordance with the terms of this Agreement and applicable law.
Section 1.02. Duties with Respect to the Related Agreements.\
(a) The Administrator agrees to perform all its duties as
Administrator hereunder in accordance with the terms of this Agreement and
applicable law. In addition, the Administrator shall consult with the Issuer
regarding the Issuer's duties under the Related Agreements. Unless otherwise
notified in writing by the Issuer, the Administrator shall prepare for
execution by the Issuer, or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer to prepare, file, obtain
or deliver pursuant to any Related Agreement. In furtherance of the
foregoing, the Administrator shall take all appropriate action that it is the
duty of the Issuer to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to sections of the
Indenture):
(1) the preparation of or obtaining of the Bonds and of any other
Issuer documents and instruments required for authentication of the
Bonds, if any, and delivery of the same to the Trustee for
authentication (Sections 2.03 and 2.10);
(2) the duty to cause the Register to be kept and, during any
period of time when the Trustee is not the Registrar, to give the
Trustee notice of any appointment of a new Registrar and the location,
or change in location, of the Register (Section 2.05);
(3) the fixing or causing to be fixed of any special record date
and the notification of each affected Bondholder with respect to special
record dates, payment dates, and the amount of defaulted interest (plus
interest on such defaulted interest) to be paid, if any (Section
2.08(c));
(4) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.12);
(5) the duty to cause each newly appointed Paying Agent (other
than the Trustee), if any, to deliver to the Trustee the instrument
specified in the Indenture regarding its agreement with the Trustee
(Section 3.03);
(6) the direction to any Paying Agent to pay to the Trustee all
sums held in trust by such Paying Agent (Section 3.03);
(7) the preparation and filing of all documents and instruments
necessary to maintain the Issuer's existence, rights and franchises as a
limited liability company under the laws of the State of Delaware
(unless the Issuer becomes, or any successor Issuer under the Indenture
is or becomes, organized under the laws of any other State or of the
United States of America, in which case the Administrator will prepare
and file all documents and instruments necessary to maintain such
Issuer's existence, rights and franchises under the laws of such other
jurisdiction) (Section 3.04);
(8) the obtaining and preservation of the Issuer's qualification
to do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Bonds, the Collateral and each other instrument or agreement
included in the Collateral (Section 3.04);
(9) the preparation of all supplements and amendments to the Indenture,
filings with the NHPUC pursuant to the Statute, financing statements,
continuation statements, instruments of further assurance and other
instruments, in accordance with Section 3.05 of the Indenture, necessary to
protect the Collateral (Section 3.05);
(10) the obtaining of the Opinions of Counsel and the delivery of
such Opinions of Counsel, in accordance with Section 3.06 of the Indenture,
as to the Collateral (Section 3.06);
(11) the identification to the Trustee in an Officer's Certificate of
any Person (other than the Administrator and the Servicer) with whom the
Issuer has contracted to perform its duties under the Indenture (Section
3.07(b));
(12) the preparation and filing of all documents required under the
Statute and the applicable Uniform Commercial Code relating to the transfer
of the ownership interest and security interest in the RRB Property other
than those required to be made by the Seller pursuant to the Related
Agreements (Section 3.07(i));
(13) the annual preparation and delivery of an Officer's Certificate to
the Trustee and the Rating Agencies as to compliance with conditions and
covenants under the Indenture (Section 3.09);
(14) the preparation and obtaining of documents and instruments required
for the release of the Issuer from its obligations under the Indenture
(Section 3.11(b));
(15) promptly after an Authorized Officer of the Administrator has
actual knowledge thereof, the delivery of written notice to the Trustee and
the Rating Agencies of each Event of Default under the Indenture, each
Servicer Default by the Servicer under and as defined in the Servicing
Agreement and each default by the Seller of its obligations under the Sale
Agreement (Sections 3.07(d) and 3.20);
(16) the preparation of or obtaining of an Officer's Certificate,
an Opinion of Counsel and Independent Certificate relating to (i) the
satisfaction and discharge of the Indenture under Section 4.01 of the
Indenture or (ii) the exercise of the Legal Defeasance Option or the Covenant
Defeasance Option under Section 4.02 of the Indenture (Sections 4.01 and
4.02);
(17) during any period when the Trustee is not the Registrar, the
furnishing to the Trustee of a list of the names and addresses of Bondholders
as required of the Issuer under Section 7.01 of the Indenture (Section 7.01);
(18) to the extent not required to be performed by the Servicer,
the preparation and, after execution by the Issuer or the Trustee (as the
case may be), the filing with the Securities and Exchange Commission (the
"SEC") and the Trustee of the annual reports and of the information,
documents and other reports required to be filed on a periodic basis with,
and summaries thereof as may be required by rules and regulations prescribed
by, the SEC and the transmission of such summaries, as necessary, to the
Trustee (Sections 3.07(h) and 7.03);
(19) the notification of the Trustee if and when the Bonds are
listed on any stock exchange (Section 7.04);
(20) the opening of one or more segregated trust accounts in the
Trustee's name, the preparation of Issuer Orders, and the obtaining
of Opinions of Counsel and the taking of all other actions necessary with
respect to investment and reinvestment of funds in the Collection
Account, the making of written requests to the Trustee for Operating
Expenses due and payable before any Payment Date and the making of
Issuer Requests to obtain the release of excess funds from the Capital
Subaccount (Sections 8.02 and 8.03);
(21) the preparation of Issuer Requests and Officers' Certificates
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Collateral (Sections 8.05 and
8.06);
(22) the preparation of Issuer Orders and the obtaining of
Officers' Certificates with respect to the execution of supplemental
indentures (Sections 9.01 and 9.02);
(23) if required by the Trustee or the Issuer, the preparation of
new Bonds conforming to any supplemental indenture (Section 9.04);
(24) the preparation and delivery of the written notification of
the Issuer or, if requested by the Trustee, to be given by the Trustee
of any redemption of the Bonds as required under Section 10.01 or 10.04
of the Indenture (Sections 10.01 and 10.04);
(25) the preparation of all Officer's Certificates and obtaining of
all Opinions of Counsel and Independent Certificates, if necessary, with
respect to any requests by the Issuer to the Trustee to take any action
under the Indenture (Section 11.01(a));
(26) the preparation or obtainment and delivery of Officers'
Certificates and Independent Certificates, if necessary, in connection
with the deposit of any property with the Trustee that is to be made the
basis for the release of property from the lien of the Indenture
(Section 11.01(b));
(27) the recording of the Indenture, if applicable, and the
obtaining of an Opinion of Counsel in connection therewith (Section
11.15); and
(28) the obtaining of evidence that the Rating Agency Condition
shall have been satisfied whenever required to be obtained under the
Indenture or other Related Agreement.
(b) The Administrator shall also take all appropriate action that
it is the duty of the Issuer to take pursuant to the Underwriting Agreement
including, without limitation, the following matters (references are to
sections of the Underwriting Agreement):
(1) to the extent not already delivered, the delivery to the
Representatives (as defined in the Underwriting Agreement) and counsel
for the Underwriters under the Underwriting Agreement (the
"Underwriters"), of copies of the Registration Statement (as defined in
the Underwriting Agreement) (Section 5(a)(iv));
(2) so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, the delivery to the Representatives
and counsel for the Underwriters of as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request (Section 5(a)(iv));
(3) to the extent not required to be performed by the Servicer,
the preparation and, after execution by the Issuer, the filing with the
SEC of reports on Form SR as required by Rule 463 under the Act, and the
delivery of such reports on Form SR, as filed with the SEC, to the
Representatives (Section 5(a)(iv));
(4) the preparation and, after execution by the Issuer, the filing
of all documents and instruments necessary to qualify the Bonds for sale
under the laws of such jurisdictions as the Representatives may
designate, and the maintenance of such qualifications in effect so long
as required for the distribution of the Bonds, subject to the
qualifications, limitations and exceptions set forth in the Underwriting
Agreement (Section 5(a)(v));
(5) the arrangement for the determination of the legality of the
Bonds for purchase by institutional investors (Section 5(a)(v));
(6) to the extent not already performed by the Servicer, the
delivery to the Representatives of the annual statements of compliance
and the annual independent auditor's servicing reports furnished to the
Issuer or the Trustee pursuant to the Servicing Agreement or the
Indenture (Section 5(a)(vii));
(7) so long as any of the Bonds are outstanding, and to the extent
not already performed by the Servicer, the delivery to the
Representatives of (i) a copy of any filings with the NHPUC pursuant to
the Finance Order including, but not limited to, any Issuance Advice
Letters and (ii) from time to time, any information concerning the
Issuer to the extent readily available, that the Representatives may
reasonably request (Section 5(a)(viii)); and
(8) to the extent, if any, that any rating necessary to satisfy
the condition set forth in Section 6(l) of the Underwriting Agreement is
conditioned upon the furnishing of documents or the taking of other
actions by the Issuer on or after the Closing Date (as defined in the
Underwriting Agreement), the delivery of such documents and the taking
of such actions (Section 5(a)(ix)).
Section 1.03. Additional Duties.
(a) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations and shall prepare
for execution by the Issuer or shall cause the preparation by other
appropriate Persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer to prepare,
file, obtain or deliver pursuant to the Related Agreements, and at the
request of the Issuer shall take all appropriate action that it is the duty
of the Issuer to take pursuant to the Related Agreements. Subject to Section
5.01 of this Agreement, and in accordance with the directions of the Issuer,
the Administrator shall administer, perform or supervise the performance of
such other activities in connection with the Collateral and the Related
Agreements as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer and are reasonably within the capability of
the Administrator.
(b) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be, in the
Administrator's reasonable opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
Section 1.04. Non-Ministerial Matters.
(a) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless the Administrator shall have notified the Issuer of the
proposed action and the Issuer shall have consented. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(1) the amendment of, or any supplement to, the Indenture;
(2) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the RRB Charge);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Registrars, successor Paying
Agents and successor Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Registrar, Paying Agent or Trustee of
its obligations under the Indenture; and
(5) the removal of the Trustee.
(b) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and hereby agrees that it shall
not, take any action that the Issuer directs the Administrator not to take on
its behalf.
Section 1.05. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Trustee at any time during normal business hours.
ARTICLE II.
Facilities
Section 2.01. Facilities. During the term of this Agreement, the
Administrator shall make available to or provide the Issuer with such
facilities as are necessary to conduct the business of the Issuer and to
comply with the terms of the Related Agreements. Such facilities shall
include office space to serve as the principal place of business of the
Issuer. Initially such office space will be located at 0000 Xxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000. All facilities provided to the Issuer
hereunder shall be provided without warranty of any kind.
ARTICLE III.
Compensation
Section 3.01. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, including the provision of
facilities pursuant to Section 2.01, the Administrator shall be entitled to
an annual fee of $52,500, payable quarterly on each Payment Date as defined
in Section 1.01(a) of the Indenture. In addition, the Issuer shall reimburse
the Administrator for all filing fees and expenses and all reasonable legal
fees, fees of outside auditors and other out-of-pocket expenses incurred by
the Administrator in the course of performing its duties hereunder. The
Administrator's compensation and other expenses payable hereunder shall be
paid from the Collection Account pursuant to Section 8.02(d) of the
Indenture, and the Administrator shall have no recourse against the Issuer
for payment of such amounts other than in accordance with Section 8.02 of the
Indenture.
ARTICLE IV.
Additional Information
Section 4.01. Additional Information To Be Furnished to Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
ARTICLE V.
Miscellaneous Provisions
Section 5.01. Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority
to act for or represent the Issuer in any way and shall not otherwise be
deemed an agent of the Issuer.
Section 5.02. No Joint Venture. Nothing contained in this Agreement
shall (a) constitute the Administrator and the Issuer as members of any
partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (b) be construed to impose any liability as such on
any of them or (c) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the
others.
Section 5.03. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person even though such Person may engage in
business activities similar to those of the Issuer.
Section 5.04. Term of Agreement: Resignation and Removal of
Administrator.
(a) This Agreement shall continue in force for one year and one
day after the retirement of all Bonds issued pursuant to the Indenture.
(b) Subject to Sections 5.04(e) and 5.04(f), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days
prior written notice.
(c) Subject to Sections 5.04(e) and 5.04(f), the Issuer may remove
the Administrator without cause by providing the Administrator with at least
60 days prior written notice.
(d) Subject to Sections 5.04(e) and 5.04(f), at the sole option of
the Issuer, the Administrator may be removed immediately upon written notice
of termination from the Issuer to the Administrator if any of the following
events shall occur:
(1) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default is curable
but cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Issuer);
(2) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to pay
its debts as they become due.
The Administrator agrees that if any of the events specified in clause (2) or
(3) of this Section shall occur, it shall give written notice thereof to the
Issuer and the Trustee within seven days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section 5.04 shall be effective until (1) a successor Administrator
shall have been appointed by the Issuer and (2) such successor Administrator
shall have agreed in writing to be bound by the terms of this Agreement in
the same manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect
to the proposed appointment.
Section 5.05. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 5.04(a) or the resignation or removal of the Administrator pursuant
to Sections 5.04(b), 5.04(c), or 5.04(d), respectively, the Administrator
shall be entitled to be paid all fees accruing to it and expenses accrued by
it in the performance of its duties hereunder through the date of such
termination, resignation or removal, to the extent permitted under Article
III. The Administrator shall forthwith upon such termination pursuant to
Section 5.04(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Sections
5.04(b), 5.04(c), or 5.04(d), respectively, the Administrator shall cooperate
with the Issuer and take all reasonable steps requested to assist the Issuer
in making an orderly transfer of the duties of the Administrator.
Section 5.06. Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Administration 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 Issuer, to
PSNH Funding LLC
c/o Public Service Company of New Hampshire
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: (860)
665-5457
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
(b) if to the Administrator, to
Public Service Company of New Hampshire 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: (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
or to such other address as any party shall have provided to the other
parties in writing.
Section 5.07. Amendments. This Agreement may be amended in writing by
the Administrator and the Issuer, and with the prior written consent of the
Trustee (which consent shall not unreasonably be withheld), but without the
consent of any of the Bondholders (notwithstanding any provision of any other
document that would otherwise require such consent as a precondition of
Trustee consent), 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 Trustee, adversely affect in any material
respect the interests of any Bondholder.
This Agreement may also be amended in writing from time to time by the
Administrator and the Issuer with the written consent of the Trustee and the
written consent of the Holders of Bonds evidencing not less than a majority
of the Outstanding Amount of the Bonds, 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; provided, however, that no such amendment shall increase or
reduce in any manner the amount of, or accelerate or delay the timing of, RRB
Charge Collections without the consent of the Holders of all the outstanding
Bonds.
If the written consent of Bondholders is required in connection with an
amendment hereof, approval by Bondholders of the substance of any proposed
amendment or consent shall constitute sufficient consent of the Bondholders
pursuant to this Section, and it shall not be necessary that Bondholders
approve of the particular form of any amendment or consent.
Promptly after the execution of any such amendment and the requisite
consents, if any, the Administrator shall furnish written notification of the
substance of such amendment to the Trustee and each of the Rating Agencies.
Prior to its consent to any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
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 5.08. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented
to in writing by the Issuer and the Trustee and is subject to the
satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer and the
Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuer and the
Trustee an agreement in which such corporation or other organization agrees
to be bound hereunder by the terms of said assignment in the same manner as
the Administrator is bound hereunder and the Rating Agency Condition is
satisfied. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
Section 5.09. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Administrator, the Issuer, the
Trustee, the Bondholders, the State of New Hampshire and the Treasurer of the
State of New Hampshire (the "State Treasurer"). The Bondholders shall be
entitled to enforce their rights and remedies against the Administrator under
this agreement solely through a cause of action brought for their benefit by
the Trustee and 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, except for the
indemnities specifically provided in Section 5.15. The Persons listed in
this section as having the benefit of this Agreement and the Indemnified
Persons listed in Section 5.15 shall have rights of enforcement with respect
to their respective rights in, to and under this Agreement.
Section 5.10. 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 5.11. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 5.12. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but
one and the same agreement.
Section 5.13. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall 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 5.14. 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 of the RRB Property
pursuant to RSA 369-B:7, VI and RSA 369-B:7, VIII, the Administrator shall
not, prior to the date which is one year and one day after the termination of
the Indenture with respect to the Issuer, 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 or 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 5.15. Indemnification. The Administrator shall indemnify the
Issuer, the Trustee, the State of New Hampshire, the State Treasurer,
agencies of the State of New Hampshire and their respective officials,
officers, directors, managers, employees, consultants, counsel and agents
(each an "Indemnified Person") for, and defend and hold harmless each such
Person from and against, any and all liabilities, obligations, actions,
suits, claims, losses, actual damages, payments, costs or expenses of any
kind whatsoever ("Losses") that may be imposed on, incurred by or asserted
against any such Person as a result of the Administrator's willful misconduct
or negligence in the performance of its duties or observance of its covenants
under this Agreement; provided, however, that the Administrator shall not be
liable for any Losses resulting from the willful misconduct or gross
negligence of such Indemnified Person. The Bondholders shall be entitled to
enforce their rights and remedies against the Administrator under this
indemnification solely through a cause of action brought for their benefit by
the Trustee. The Administrator shall not be required to indemnify an
Indemnified Person 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 Administrator, 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 Administrator under this Section 5.15, notify the Administrator
in writing of such involvement. Failure by an Indemnified Person to so
notify the Administrator shall relieve the Administrator from the obligation
to indemnify and hold harmless such Indemnified Person under this Section
5.15 only to the extent that the Administrator 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 5.15, the Administrator shall be entitled to assume
the defense of any such action, proceeding or investigation. Upon assumption
by the Administrator 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 Administrator
shall be entitled to appoint counsel of the Administrator's choice at the
Administrator's expense to represent the Indemnified Person in any action,
proceeding or investigation for which a claim of indemnification is made
against the Administrator under this Section 5.15 (in which case the
Administrator 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 Administrator'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 Administrator
shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the Administrator 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 Administrator 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 Administrator, (iii) the Administrator 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 Administrator shall authorize the Indemnified
Person to employ separate counsel at the expense of the Administrator.
Notwithstanding the foregoing, the Administrator 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 Administrator
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 5.15 (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. The indemnities contained in this Section
5.15 shall survive the resignation or removal of the Trustee or the
termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered under seal as of the day and year
first above written.
PSNH FUNDING LLC, as Issuer
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, as
Administrator
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
