EXHIBIT 10.55
TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT
between
CL&P FUNDING LLC
Note Issuer
and
THE CONNECTICUT LIGHT AND POWER COMPANY
Seller
Dated as of March 30, 2001
This TRANSITION PROPERTY PURCHASE and SALE AGREEMENT, dated as of March 30,
2001, is between CL and P Funding LLC, a Delaware limited liability company (the
"Note Issuer"), and The Connecticut Light and Power Company, a Connecticut
corporation (together with its successors in interest to the extent permitted
hereunder, the "Seller").
RECITALS
WHEREAS, the Note Issuer desires to purchase the Transition Property (as
defined herein) created pursuant to the Statute and the Financing Order (each as
defined herein); and
WHEREAS, the Seller is willing to sell the Transition Property to the Note
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
March 30, 2001 between The Connecticut Light and Power Company, as
Administrator, and the Note Issuer, as amended and supplemented from time to
time.
"Agreement" means this Transition Property 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 Note Trustee and the
Certificate Trustee on the date of issuance of the Certificates (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 Note Indenture,
the Declaration of Trust, the Certificate Indenture, the Servicing Agreement,
the Administration Agreement, the Note Purchase Agreement, the Underwriting
Agreement, the Fee and Indemnity Agreement, the Inter-Creditor Agreement and the
Swap Agreement.
"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 or Wilmington, Delaware are authorized or obligated by law,
regulation or executive order to remain closed.
"Certificate Indenture" means the Certificate Indenture dated as of March
30, 2001, between the Certificate Issuer and the Certificate Trustee, as amended
and supplemented from time to time.
"Certificate Trustee" means the Person acting as trustee under the
Certificate Indenture.
"Certificateholders" has the meaning specified in Section 1.01(a) of the
Certificate Indenture.
"Certificates" means the Connecticut RRB Special Purpose Trust CL and P- 1
Rate Reduction Certificates issued under the Certificate Indenture.
"Class A-4 Swap Agreement" has the meaning specified in Section 1.01 of the
Certificate Indenture.
"Class A-4 Swap Counterparty" has the meaning specified in Section
1.01 of the Certificate Indenture.
"Closing Date" means March 30, 2001.
"Collection Account" has the meaning specified in Section 8.02(a) of the
Note Indenture.
"Corporate Trust Office" has the meaning specified in Section 1.01(a) of
the Note Indenture.
"CTA" means the "competitive transition assessment" as defined in the
Statute.
"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.
"Declaration of Trust" means the Declaration of Trust dated as of March 23,
2001, among the Finance Authority and the Delaware Trustee, as amended and
supplemented from time to time.
"Delaware Trustee" means the Person acting as trustee under the Declaration
of Trust.
"DPUC" means the Connecticut Department of Public Utility Control and any
successor thereto.
"DPUC Regulations" has the meaning specified in Section 1.01 of the
Servicing Agreement.
"Fee and Indemnity Agreement" means the Fee and Indemnity Agreement dated
as of March 30, 2001 among the Note Issuer, the Delaware Trustee, the
Certificate Trustee, the Trust and the Finance Authority, as amended and
supplemented from time to time.
"Finance Authority" means, the State of Connecticut, acting through the
office of the State Treasurer.
"Financing Order" means the order of the DPUC, issued on November 8, 2000
and supplemented on December 12, 2000 and March 12, 2001 in DPUC-00- 05-01.
"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.
"Inter-Creditor Agreement" means the Inter-Creditor Agreement dated as of
March 30, 2001 among Citicorp North America, Inc., Citibank, N.A., the Seller,
the Note Trustee, the Note Issuer and CL and P Receivables Corporation, as
amended, supplemented or modified from time to time.
"Issuance Advice Letter" means the initial Issuance Advice Letter, dated
March 28, 2001, filed with the DPUC by the Seller pursuant to the Financing
Order.
"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 Moody's Investors Service, Inc. or its successor.
"Note Indenture" means the Note Indenture dated as of March 30, 2001,
between the Note Issuer and the Note Trustee, as amended and supplemented from
time to time.
"Note Issuer" has the meaning set forth in the preamble of this Agreement.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
March 30, 2001 between the Note Issuer and the Trust, as amended and
supplemented from time to time.
"Note Register" has the meaning specified in Section 2.05 of the Note
Indenture.
"Note Trustee" means the Person acting as trustee under the Note Indenture.
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Note Register.
"Notes" means the CL and P Funding LLC Notes issued under the Note
Indenture.
"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 Note 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
Note Indenture.
"Overcollateralization Subaccount" has the meaning specified in Section
8.02(a) of the Note 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.
"Rating Agencies" means, collectively, S and P, Moody's and Fitch.
"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 Overcollateralization Level" has the meaning specified in
Section 1.01(a) of the Note Indenture.
"RRB Charge" means the portion (which may become all) of the Seller's CTA
designated pursuant to the Financing Order as the RRB Charge, as the same may be
adjusted from time to time as provided in the Financing Order, and may in the
future include a pro rata component of any exit fee collected pursuant to
Section 16-245w of the Connecticut General Statutes.
"RRB Charge Collections" has the meaning specified in Section 1.01 of the
Servicing Agreement.
"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 Transition Property Servicing Agreement
dated as of March 30, 2001 between The Connecticut Light and Power Company, as
Servicer, and the Note Issuer, as amended and supplemented from time to time.
"S and P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor.
"State Treasurer" means the Treasurer of the State of Connecticut.
"Statute" means Connecticut General Statutes 16-245e through and including
16-245k.
"Swap Agreement" means any interest rate swap agreement entered into by the
Certificate Issuer with respect to any class of Certificates, including, without
limitation, the ISDA Master Agreement and the related Schedule and Confirmation
between the Certificate Issuer and a swap counterparty, as same may be amended
or supplemented from time to time.
"Swap Counterparty" has the meaning specified in Section 1.01 of the
Certificate Indenture.
"Transition Property" means the transition property that exists under Order
6 of Exhibit C to the Financing Order, including, without limitation, and as
provided therein, the RRB Charge included in special contract customer rates.
"Trust" or "Certificate Issuer" means Connecticut RRB Special Purpose Trust
CL and P-1, a Delaware business trust.
"Underwriting Agreement" means the Underwriting Agreement dated as of March
27, 2001 among The Connecticut Light and Power Company, the Note 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 TRANSITION PROPERTY
Section 2.01. Conveyance of Transition Property. In consideration of the
Note Issuer's delivery to or upon the order of the Seller of 1,431,369,048.94
dollars net of underwriting discounts and commissions, original issue discount,
if any, and other fees and expenses, the Seller does hereby irrevocably sell,
transfer, assign, set over and otherwise convey to the Note Issuer, WITHOUT
RECOURSE OR WARRANTY, except as specifically set forth herein, all right, title
and interest of the Seller in and to the Transition Property (such sale,
transfer, assignment, setting over and conveyance of the Transition 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 Financing 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 Section
16-245k(h) of the Statute, 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 Transition 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 Section 16- 245k(h) of the
Statute, then such sale, transfer, assignment, setting over and conveyance shall
be treated as the creation of a security interest in the Transition Property and
, without prejudice to its position that it has absolutely transferred all of
its rights in the Transition Property (including, 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
Financing Order) to the Note Issuer,
the Seller hereby grants a security interest in the Transition Property to the
Note Issuer (the "Back-Up Security Interest"). Such sale, transfer, assignment,
setting over and conveyance of the Transition 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 Transition 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 Note Issuer
has relied in acquiring the Transition 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 Connecticut, 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 Transition 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 Section 245k(g) of the Statute); or
(iii) violate any existing law or any existing order, rule or regulation
applicable to the Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
Section 3.06. No Proceedings. There are no proceedings pending and , to the
Seller's knowledge, there are no proceedings threatened and , to the Seller's
knowledge, there are no investigations pending or threatened, before any court,
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties involving
or relating to the Seller or the Note Issuer or, to the Seller's knowledge, any
other Person: (i) asserting the invalidity of this Agreement, any of the other
Basic Documents, the Notes, the Certificates, the Statute or the Financing
Order, (ii) seeking to prevent the issuance of the Notes or the Certificates 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, the Notes or the Certificates or (iv) seeking to
adversely affect the federal or state income tax classification of the Notes or
the Certificates 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 Transition Property.
(a) Title. It is the intention of the parties hereto that the transfer and
assignment herein contemplated constitute a sale of the Transition Property from
the Seller to the Note Issuer and that no interest in, or title to, the
Transition 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 Transition Property has been sold, transferred, assigned
or pledged by the Seller to any Person other than the Note Issuer. On the
Closing Date, immediately upon the sale hereunder, the Seller has transferred,
sold and conveyed the Transition Property to the Note Issuer, free and clear of
all Liens, except for any Lien created pursuant to Section 16-245k(g) of the
Statute and any Lien that may be granted under the Basic Documents, and pursuant
to Section 16-245k(h) of the Statute 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 Transition Property.
(b) Transfer Filings. On the Closing Date, immediately upon the sale
hereunder, the Transition Property has been validly transferred and sold to the
Note Issuer, the Note Issuer shall own all such Transition Property free and
clear of all Liens (including the Lien of the Seller's first mortgage indenture
but excluding any Lien created pursuant to Section 16-245k(g) of the Statute and
any Lien that may be granted under the Basic Documents) and all filings to be
made by the Seller (including filings with the DPUC under the Statute) necessary
in any jurisdiction to give the Note Issuer an ownership interest (subject to
any Lien created pursuant to Section 16- 245k(g) of the Statute and any Lien
that may be granted under the Basic Documents) in the Transition Property have
been made. No further action is
required to maintain such ownership interest (subject to any Lien created
pursuant to Section 16-245k(g) of the Statute and any Lien that may be granted
under the Basic Documents). Filings have also been made to the extent required
by Connecticut General Statutes Section 42a-9-204, 42a-9-205, 42a-9-401,
42a-9-402 and 42a-9-403 to perfect the Back-Up Security Interest granted by the
Seller to the Note Issuer (subject to any Lien created pursuant to Section
16-245k(g) of the Statute and any Lien that may be granted under the Basic
Documents).
(c) Financing Order and Issuance Advice Letter; Other Approvals. On the
Closing Date, under the laws of the State of Connecticut and the United States
in effect on the Closing Date, (i) the Financing Order pursuant to which the
Transition Property has been created is in full force and effect; (ii) the
Certificateholders are entitled to the protections of the Statute and ,
accordingly, the Financing Order is not revocable by the DPUC; (iii) the State
of Connecticut may neither limit nor alter the CTA, the Transition Property, or
the Financing Order and all rights thereunder until the Certificates, together
with interest thereon, are fully met and discharged, 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;" provided that
the State of Connecticut is not precluded from such limitation or alteration if
and when adequate provision shall be made by law for the protection of the
owners of the Transition Property and Certificateholders; (iv) except for
periodic adjustments to the RRB Charge required under the Statute, the DPUC
shall not have authority either by rescinding, altering, or amending the
Financing 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, determine that the CTA is unjust or unreasonable, or in any
way reduce or impair the value of Transition Property either directly or
indirectly by taking the CTA into account when setting other rates for the
Seller; nor shall the amount of revenues arising with respect thereto be subject
to reduction, impairment, postponement, or termination; (v) the process by which
the Financing Order was adopted and approved, and the Financing 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 Financing 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
Transition 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; (vii) under the Statute, the
limit contained in Section 16-244c(a)(2) of the Connecticut General Statutes on
standard offer service rates may be exceeded if necessary to establish, fix or
revise the CTA (including the RRB Charge) at a level sufficient to pay principal
of and interest on the Certificates and related expenses, to pay stranded costs
that are not recovered through the issuance of rate reduction bonds, and to pay
capital costs specified in the Statute; and (viii) the State of Connecticut, in
the exercise of its executive or legislative powers, may not repeal or amend the
Statute or the Financing Order, or take any action in contravention of the
pledge by the State of Connecticut in Section 16-245j(b) of the Statute without
paying just compensation to the Certificateholders, as determined by a court of
competent jurisdiction, if this action would constitute a permanent
appropriation of a substantial property interest of Certificateholders in the
Transition Property and deprive the Certificateholders of their reasonable
expectations arising from their investments in the Certificates.
(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 Transition Property. Upon the effectiveness of the
Financing Order and the Issuance Advice Letter: (i) all of the Transition
Property constitutes an existing property right; (ii) the Transition 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
(including, without limitation, the RRB Charge included in special contract
customer rates), as adjusted from time to time pursuant to the Financing Order,
and all rights to obtain adjustments to the RRB Charge pursuant to the Financing
Order; and (iii) the owner of the Transition 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 Notes,
to pay the fees and expenses of servicing the Notes and the Certificates, to
replenish the Capital Subaccount to the Required Capital Level and to fund the
Overcollateralization Subaccount to the Required Overcollateralization Level
until the Notes and the Certificates 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 Notes and the Certificates.
(f) Prospectus. As of the date hereof, the information describing the
Seller in "The Seller and Servicer" section of the prospectus dated March 27,
2001 offering the Notes and the Certificates 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 Notes and the Certificates 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.
Article 4
COVENANTS OF THE SELLER
Section 4.01. Corporate Existence. So long as any of the Notes 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 Section 16-245k(g) of the Statute or for the benefit of the Note Issuer,
the Seller will not sell, pledge, assign or transfer, or grant, create, or incur
any Lien on, any of the Transition Property, or any interest therein, and the
Seller shall defend the right, title and interest of the Note Issuer and the
Note Trustee in, to and under the Transition Property against all claims of
third parties claiming through or under the Seller. The Connecticut Light and
Power Company, in its capacity as Seller, will not at any time assert any Lien
against, or with respect to, any of the Transition 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 Note Issuer and
the Note Trustee promptly after becoming aware of any Lien on any of the
Transition Property, other than the conveyances hereunder, any Lien under the
Basic Documents or any Lien under Section 16-245k(g) of the Statute or for the
benefit of the Note Issuer.
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 Note Issuer's or the Note Trustee's interests in the Transition 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 Notes and Transition Property.
(a) So long as any of the Notes are outstanding, the Seller shall treat the
Notes as debt of the Note Issuer and not of the Seller, except for
financial accounting or tax reporting purposes.
(b) So long as any of the Notes are outstanding, the Seller shall indicate
in its financial statements that it is not the owner of the Transition Property
and that the assets of the Note Issuer are not available to pay creditors of the
Seller or any of its Affiliates (other than the Note Issuer).
(c) So long as any of the Notes are outstanding, the Seller shall disclose
the effects of all transactions between the Seller and the Note Issuer in
accordance with generally accepted accounting principles.
(d) So long as any of the Notes or Certificates are outstanding, the Seller
shall not own or purchase any Notes or Certificates.
(e) The Seller agrees that, upon the sale by the Seller of the Transition
Property to the Note Issuer pursuant to this Agreement, (i) to the fullest
extent permitted by law, including the Statute and applicable DPUC Regulations,
the Note Issuer shall have all of the rights originally held by the Seller with
respect to the Transition 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
Transition 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 Note Issuer shall discharge such customer's or third party supplier's
obligations in respect of the Transition 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 Notes are outstanding, (i) (A) the Seller shall
affirmatively certify and confirm that it has sold the Transition Property to
the Note 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
Transition Property that is inconsistent with the ownership thereof by the Note
Issuer (other than for financial accounting or tax reporting purposes), and (ii)
the Seller shall not take any action in respect of the Transition 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 DPUC pursuant to the Statute and
Uniform Commercial Code continuation statements, 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 interest of the Note
Issuer in the Transition Property, including all filings required under the
Statute relating to the transfer of the ownership interest in the Transition
Property by the Seller to the Note Issuer and the continued perfection of such
ownership interest. The Seller shall deliver (or cause to be delivered) to the
Note Issuer 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 DPUC
or the State of Connecticut of any of their obligations or duties under the
Statute or the Financing 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 Note Issuer, the Noteholders, the
Certificateholders, the Note Trustee, the Delaware Trustee, the Certificate
Trustee, the Certificate Issuer, the State of Connecticut, the Finance
Authority, the State Treasurer, agencies of the State of Connecticut 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 Financing Order, any Advice Letter or the rights of Noteholders by
legislative enactment or constitutional amendment that would be adverse to the
Note Issuer, the Note Trustee or the Noteholders. 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 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 Note 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 Note 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 Note Indenture, but subject to the DPUC's right to
order the sequestration and payment of revenues arising with respect to the
Transition Property notwithstanding any bankruptcy, reorganization or other
insolvency proceedings with respect to the Seller pursuant to Section 16-245k(e)
or Section 16-245k(g) of the Statute, the Seller shall not, prior to the date
which is one year and one day after the termination of the Note Indenture,
petition or otherwise invoke or cause the Note Issuer to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against the Note 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 Note Issuer or any substantial
part of the property of the Note Issuer, or ordering the winding up or
liquidation of the affairs of the Note Issuer.
Section 4.09. Taxes. So long as any of the Notes 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
Transition 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.
Section 4.10. Additional Sales of Transition Property. So long as any of
the Notes are outstanding, the Seller shall not sell any transition 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 Certificates 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 DPUC.
Section 4.12. Maintenance of Working Papers. So long as any of the Notes
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 letter letters delivered on the Issuance
Date to the Note Issuer and the Note Trustee pursuant to Section 2.10(g) of the
Note Indenture and Section 6(k) 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 Certificateholders, the Seller shall repurchase the Transition
Property from the Note Issuer at a purchase price equal to the then outstanding
principal amount of the Notes 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 Transition 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 Certificateholders 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 and P or Fitch, and the Seller enters into a
binding agreement with the Note Issuer to pay any amounts necessary so that all
interest payments due on the Notes 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 Note 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 Notes 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 Certificateholders, 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 Certificateholders as a result of
such breach, then the Seller shall repurchase the Transition Property from
the Note 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 Note 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 Sections 5.01(b)(iv),
5.01(c), 5.01(d) and 5.01(h).
(iii) The Seller acknowledges that, upon the repurchase of the
Transition Property pursuant to this Section 5.01(b), the Class A-4 Swap
Agreement (as defined in the Certificate Indenture) will terminate. The
Seller will indemnify, defend and hold harmless the Class A-4 Swap
Counterparty for any Losses that may be imposed on, incurred by or asserted
against the Class A-4 Swap Counterparty as a result of such termination.
(c) Subject to Section 5.01(i), the Seller shall indemnify the Note
Issuer, the Note Trustee, the Certificate Trustee, the Delaware Trustee, the
State of Connecticut, the Finance Authority, the State Treasurer, agencies of
the State of Connecticut, the Certificate Issuer, the Noteholders, the
Certificateholders and any Swap Counterparty (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 Noteholders or Certificateholders solely as a result of
their ownership of Notes or Certificates, respectively) 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 Transition Property to the Note
Issuer, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes; provided, however, that the
Noteholders, the Certificateholders and any Swap Counterparty 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 Note Trustee or the Certificate Trustee, as the case may be.
(d) Subject to Section 5.01(i), the Seller shall indemnify the Note
Issuer, the Note Trustee, the Certificate Trustee, the Delaware Trustee, the
State of Connecticut, the Finance Authority, the State Treasurer, agencies of
the State of Connecticut, the Certificate Issuer, the Noteholders, the
Certificateholders and any Swap Counterparty (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 Note
Issuer of the Notes, the issuance and sale by the Trust of the Certificates or
the other transactions contemplated herein, including any sales, gross receipts,
general corporation, tangible personal property, privilege or license taxes;
provided, however, that the Noteholders, the Certificateholders and any Swap
Counterparty 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 Note Trustee or the Certificate Trustee, as the case may be. 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 Note Indenture.
(e) Subject to Section 5.01(i), the Seller shall indemnify the Note
Issuer, the Noteholders and the Certificateholders (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 (i) 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 Noteholders and the Certificateholders 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 Note Trustee or the
Certificate Trustee, as the case may be; provided, further, that the Seller may,
at its election and in full satisfaction of its obligations under this Section
5.01(e), repurchase the Transition Property at the Repurchase Price, in which
case neither the Note 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 Sections 5.01(b)(iv), 5.01(c),
5.01(d) and 5.01(h).
(f) Indemnification under Sections 5.01(c), 5.01(d), 5.01(e) and
5.01(h) 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 Notes and the Certificates 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 deferrals
for future recovery).
(h) Subject to Section 5.01(i), the Seller shall indemnify and hold
harmless the Note Trustee, the Delaware Trustee, the Certificate Trustee, the
Certificate Issuer, any Swap Counterparty, the State of Connecticut, the
Finance Authority, the State Treasurer, agencies of the State of Connecticut 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. The indemnities contained in this Section 5.01(h) shall
survive the resignation or termination of the Note Trustee, the Certificate
Trustee or the Delaware Trustee or the termination of this Agreement or any Swap
Agreement.
(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 Note Issuer, the Noteholders, the
Certificateholders and any Swap Counterparty 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 any 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 Note Issuer and the Note 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 Note Issuer and the Note
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all filings to be made by the Seller, including filings with the DPUC
pursuant to the Statute, have been executed and filed that are necessary to
fully preserve and protect the interest of the Note Issuer in the Transition
Property and reciting the details of such filings, or (B) stating that, in the
opinion of such counsel, 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, except with respect to any acts
or omissions of the Seller that occurred prior to such assumption.
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 Note Issuer, with ten Business Days' prior written notice given to the
Rating Agencies and the prior written consent of the Note Trustee, but without
the consent of any of the Noteholders, 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 Noteholders;
provided, however, that such action shall not, as evidenced by an Officer's
Certificate delivered to the Note Issuer, the Note Trustee and any Swap
Counterparty, adversely affect in any material respect the interests of any
Noteholder or adversely affect the interests of any Swap Counterparty.
This Agreement may also be amended from time to time by the Seller and the
Note Issuer, with ten Business Days' prior written notice given to the Rating
Agencies and the prior written consent of the Note Trustee and the prior written
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes 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 Noteholders.
It shall not be necessary for the consent of Noteholders 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 Note 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 Note Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Note Trustee's own rights,
duties or immunities under this Agreement or otherwise.
No amendment may be made to this Agreement that would adversely affect any
Swap Counterparty without its prior written consent.
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
The Connecticut Light and Power Company
if by U.S. Mail:
P.O. Box 270
Hartford, CT 02141-0270
if by courier:
107 Selden Street
Berlin, CT 06037
Attention: Treasurer
Facsimile: (860) 665-5457
Telephone: (860) 665-3258
Email: shoopra@nu.com
(b) if to the Note Issuer, to
CL and P Funding LLC
c/o The Connecticut Light and Power Company
if by U.S. Mail:
P.O. Box 270
Hartford, CT 06141-0270
if by courier:
107 Selden Street
Berlin, CT 06037
Attention: Treasurer
Facsimile: (860) 665-5457
Telephone: (860) 665-3258
Email: shoopra@nu.com
(c) if to the Note Trustee, to
First Union Trust Company, National Association
One Rodney Square
920 King Street, 1st Floor
Wilmington, DE 19801-7475
Attention: Corporate Trust Administration
Facsimile: (302) 888-7544
Telephone: (302) 888-7500
(d) if to Moody's, to
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Attention: ABS Monitoring Department
Facsimile: (212) 553-0573
Telephone: (212) 553-3686
(e) if to S and P, to
Standard and Poor's
55 Water Street, 40th Floor
New York, NY 10041
Attention: Asset Backed Surveillance Department
Facsimile: (212) 438-2655
Telephone: (212) 438-2000
(f) if to Fitch, to
Fitch, Inc.
One State Street Plaza
New York, NY 10004
Attention: ABS Surveillance
Facsimile: (212) 514-9879
Telephone: (212) 908-0500
Email: surv@fitchratings.com
(g) if to the Finance Authority, to:
Office of the State Treasurer
55 Elm Street
Hartford, CT 06106
Attention: Assistant Treasurer - Debt Management
Facsimile: (860) 702-3127
Telephone: (860) 702-3034
(h) if to the Certificate Issuer, to:
Connecticut RRB Special Purpose Trust CL and P-1
c/o First Union Trust Company, National Association
One Rodney Square
920 King Street, 1st Floor
Wilmington, DE 19801-7475
Attention: Corporate Trust Administration
Facsimile: (302) 888-7544
Telephone: (302) 888-7500
(with copies to the Finance Authority at the addresses
listed herein)
(i) if to any Swap Counterparty, to the address and in the manner set
forth in any Swap Agreement (a copy of which will be provided
by the Certificate Trustee, upon request); and
(j) 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 Note Issuer, the
Noteholders, the Certificateholders, any Swap Counterparty, the Note Trustee,
the Certificate Trustee, the Delaware Trustee, the Finance Authority, the
Certificate Issuer 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 Noteholders and the Certificateholders 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 Note Trustee or the
Certificate Trustee, as the case may be. 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 Transition 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 Connecticut, 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 Note Trustee. The Seller hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Note Issuer to the Note Trustee pursuant to the Note Indenture
for the benefit of the Noteholders of all right, title and interest of the Note
Issuer in, to and under the Transition Property and the proceeds thereof and the
assignment of any or all of the Note Issuer's rights and obligations hereunder
to the Note Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Transition Property
Purchase and Sale Agreement to be duly executed by their respective officers as
of the day and year first above written.
CL&P FUNDING LLC,
Note Issuer
By: /S/ RANDY A. SHOOP
----------------------------
Name: Randy A. Shoop
Title: President
THE CONNECTICUT LIGHT AND
POWER COMPANY,
Seller
By: /S/ RANDY A. SHOOP
----------------------------
Name: Randy A. Shoop
Title: Treasurer