EXHIBIT 10.4
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of March 30, 2001, is made by and
between CL&P Funding LLC, a Delaware limited liability company (together
with any successor thereto permitted under the Note Indenture, as
hereinafter defined, the "Note Issuer"), and The Connecticut Light and Power
Company, a Connecticut corporation, as Administrator (together with its
permitted successors or assigns as administrator hereunder, the
"Administrator").
RECITALS
A. WHEREAS, the Note Issuer is issuing the Notes pursuant to the Note
Indenture dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Note
Indenture"; capitalized terms used herein and not defined herein shall have
the meanings assigned such terms in the Note Indenture), between the Note
Issuer and First Union Trust Company, National Association, as Note Trustee
(in such capacity, together with its successors and assigns permitted under
the Note Indenture, the "Note Trustee").
B. WHEREAS, the Note Issuer has entered into certain agreements in
connection with the issuance of the Notes, including (i) a Transition
Property 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 Note Issuer and The
Connecticut Light and Power Company, as Seller (in such capacity, the
"Seller"), (ii) a Transition Property 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 Note Issuer and The Connecticut Light and Power Company, 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 March 27, 2001 (as amended, modified or supplemented from time to
time in accordance with the provisions thereof, the "Underwriting
Agreement"), among the Note Issuer, The Connecticut Light and Power Company,
and the Underwriters named therein, (iv) the Note Indenture, (v) a Note
Purchase Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with the provisions thereof,
the "Note Purchase Agreement") between the Note Issuer and First Union Trust
Company, National Association, as Certificate Trustee (in such capacity, the
"Certificate Trustee"), (vi) 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") among the
Delaware Trustee, the State of Connecticut, acting through the office of the
State Treasurer (the "Finance Authority), the Certificate Trustee, the Note
Issuer, and Connecticut RRB Special Purpose Trust CL&P-1 (the "Trust") and
(vii) the Inter-Creditor Agreement dated as of the date hereof (as amended,
supplemented or modified from time to time in accordance with the provisions
thereof, the "Inter-Creditor Agreement") among Citicorp North America, Inc.,
Citibank, N.A., the Administrator, the Note Trustee, the Note Issuer and
CL&P Receivables Corporation (the Sale Agreement, the Servicing Agreement,
the Underwriting Agreement, the Note Indenture, the Note Purchase Agreement,
the Fee Agreement and the Inter-Creditor Agreement are hereinafter referred
to collectively as the "Related Agreements");
C. WHEREAS, pursuant to the Related Agreements, the Note Issuer is
required to perform certain duties in connection with the Notes and the
collateral therefor pledged pursuant to the Note Indenture (the "Collateral")
and to maintain its existence and comply with applicable laws;
D. WHEREAS, the Note Issuer has no employees and does not intend to hire
any employees, and consequently desires to have the Administrator perform
certain duties of the Note 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 Note 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 Note 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 Note 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 Note
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 Note Issuer regarding
the Note Issuer's duties under the Related Agreements. Unless otherwise
notified in writing by the Note Issuer, the Administrator shall prepare for
execution by the Note 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 Note 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 Note Issuer to take pursuant to the Note
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Note Indenture
(references are to sections of the Note Indenture):
(1) the preparation of or obtaining of the Notes and or any other Note
Issuer documents and instruments required for authentication of the Notes,
if any, and delivery of the same to the Note Trustee for authentication
(Sections 2.03 and 2.10);
(2) the duty to cause the Note Register to be kept and, during any
period of time when the Note Trustee is not the Note Registrar, to give the
Note Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.05);
(3) the fixing or causing to be fixed of any special record date and
the notification of each affected Noteholder 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 2.11);
(5) the duty to cause each newly appointed Paying Agent (other than the
Note Trustee), if any, to deliver to the Note Trustee the instrument
specified in the Note Indenture regarding its agreement with the Note
Trustee (Section 3.03);
(6) the direction to any Paying Agent to pay to the Note 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 Note Issuer's existence, rights and franchises as a
limited liability company under the laws of the State of Delaware (unless the
Note Issuer becomes, or any successor Note Issuer under the Note 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 Note Issuer's existence, rights
and franchises under the laws of such other jurisdiction)
(Section 3.04);
(8) the obtaining and preservation of the Note 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 Note Indenture,
the Notes, 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 Note
Indenture, filings with the DPUC pursuant to the Statute, financing
statements, continuation statements, instruments of further assurance and
other instruments, in accordance with Section 3.05 of the Note 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 Note Indenture,
as to the Collateral (Section 3.06);
(11) the identification to the Note Trustee in an Officer's Certificate
of any Person (other than the Administrator and the Servicer) with whom the
Note Issuer has contracted to perform its duties under the Note Indenture
(Section 3.07(b));
(12) the preparation and filing of all documents required under the
Statute relating to the transfer of the ownership or security interest in the
Transition 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 Note Trustee, the Certificate Trustee, the Finance Authority and the Rating
Agencies as to compliance with conditions and covenants under the Note
Indenture (Section 3.09);
(14) the preparation and obtaining of documents and instruments required
for the release of the Note Issuer from its obligations under the Note
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 Note Trustee, the
Certificate Trustee, the Finance Authority and the Rating Agencies of each
Event of Default under the Note 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 an Independent Certificate relating to (i) the
satisfaction and discharge of the Note Indenture under Section 4.01 of the
Note Indenture or (ii) the exercise of the Legal Defeasance Option or the
Covenant Defeasance Option under Section 4.02 of the Note Indenture
(Sections 4.01 and 4.02);
(17) during any period when the Note Trustee is not the Note Registrar,
the furnishing to the Note Trustee of a list of the names and addresses of
Noteholders as required of the Note Issuer under Section 7.01 of the Note
Indenture (Section 7.01);
(18) to the extent not required to be performed by the Servicer, the
preparation and, after execution by the Note Issuer, the Delaware Trustee or
the Certificate Trustee (as the case may be), the filing with the Securities
and Exchange Commission (the "SEC") and the Note Trustee of the annual
reports and of the information, documents and other reports, including
filings on behalf of the Trust pursuant to the Certificate Indenture, the
Declaration of Trust or otherwise, 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 Note Trustee (Sections 3.07(h) and 7.03);
(19) the notification of the Note Trustee if and when the Notes are
listed on any stock exchange (Section 7.04);
(20) the opening of one or more segregated trust accounts in the Note
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 Note 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 8.04 and 8.05);
(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 Note Trustee or the Note Issuer, the
preparation of new Notes conforming to any supplemental indenture
(Section 9.04);
(24) the preparation and delivery of the written notification of the Note
Issuer or, if requested by the Note Trustee, to be given by the Note Trustee
of any redemption of the Notes as required under Section 10.01 or 10.04 of
the Note 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 Note Issuer to the Note Trustee to take any action
under the Note 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 Note Trustee that is to be made the basis for the
release of property from the lien of the Note Indenture (Section 11.01(b));
(27) the recording of the Note Indenture, if applicable, and the obtaining
of an Opinion of Counsel in connection therewith (Section 11.14)
(28) the obtaining of evidence that the Rating Agency Condition shall have
been satisfied whenever required to be obtained under the Note Indenture or
other Related Agreement.
(29) for so long as any Certificates are listed on the Luxembourg Stock
Exchange and the rules and regulations of such exchange so require, the
retaining of a listing agent, a transfer agent and a paying agent in
Luxembourg, the giving of prompt written notice to the Certificate Issuer
and the Certificate Trustee and any other agent appointed under Section 3.22
of the Note Indenture of prompt written notice of the location and identity,
and of any change in the location or identity, of any such office or agency,
and the preparation of any reports or other filings required to be filed by
the Note Issuer or the Certificate Issuer with the Luxembourg Stock Exchange
(Section 3.22); and
(30) for so long as any Certificates are listed on the Luxembourg Stock
Exchange and the rules and regulations of such exchange so require, the
giving of notices of redemption by publication in a daily newspaper in
Luxembourg (Sections 10.02 and 10.05).
(b) The Administrator shall also take all appropriate action that it is
the duty of the Note 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 Note 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 Note Issuer, the filing
of all documents and instruments necessary to qualify the Certificates 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 Certificates, 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
Certificates 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 Note Issuer or the
Note Trustee pursuant to the Servicing Agreement or the Note Indenture
(Section 5(a)(vii));
(7) so long as any of the Certificates 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 DPUC pursuant to the Financing Order
including, but not limited to, any Issuance Advice Letters and (ii) from
time to time, any information concerning the Note 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(r) of the Underwriting Agreement is
conditioned upon the furnishing of documents or the taking of other actions
by the Note 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)).
(c) The Administrator shall also take all appropriate action that it is
the duty of the Note Issuer to take pursuant to the Inter-Creditor Agreement.
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 Note 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 Note Issuer to
prepare, file, obtain or deliver pursuant to the Related Agreements, and at
the request of the Note Issuer shall take all appropriate action that it is
the duty of the Note Issuer to take pursuant to the Related Agreements.
Subject to Section 5.01 of this Agreement, and in accordance with the
directions of the Note 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 Note 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 Note 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 Note Issuer of the
proposed action and the Note 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 Note Indenture;
(2) the initiation of any claim or lawsuit by the Note Issuer and the
compromise of any action, claim or lawsuit brought by or against the Note
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 Note Registrars, successor Paying Agents
and successor Note Trustees pursuant to the Note Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or Note
Trustee of its obligations under the Note Indenture; and
(5) the removal of the Note 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 Note 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 Note
Issuer and the Note 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 Note Issuer with such
facilities as are necessary to conduct the business of the Note 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 Note
Issuer. Initially such office space will be located at 000 Xxxxxx Xxxxxx,
Xxxxxx, XX 00000. All facilities provided to the Note 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 $75,000, payable quarterly on each Payment Date
as defined in Section 1.01(a) of the Note Indenture. In addition, the
Note Issuer shall reimburse the Administrator for all filing fees and
expenses, 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 Note Indenture, and the Administrator shall have no
recourse against the Note Issuer for payment of such amounts other than in
accordance with Section 8.02 of the Note Indenture.
ARTICLE IV.
Additional Information
Section 4.01. Additional Information To Be Furnished to Note Issuer. The
Administrator shall furnish to the Note Issuer from time to time such
additional information regarding the Collateral as the Note 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 Note Issuer with respect to the
manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Note Issuer, the
Administrator shall have no authority to act for or represent the Note
Issuer in any way and shall not otherwise be deemed an agent of the Note
Issuer.
Section 5.02. No Joint Venture. Nothing contained in this Agreement
shall
(a) constitute the Administrator and the Note 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 Note 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 Notes issued pursuant to the Note Indenture.
(b) Subject to Sections 5.04(e) and 5.04(f), the Administrator may
resign its duties hereunder by providing the Note Issuer with at least 60
days
prior written notice.
(c) Subject to Sections 5.04(e) and 5.04(f), the Note 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
Note Issuer, the Administrator may be removed immediately upon written notice
of termination from the Note 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 Note 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 Note Issuer and the Note 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 Note 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) or 5.04(c) 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 Note 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 Note Issuer and take all reasonable steps requested to
assist the Note 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, except that notices to the Note Trustee are effective only upon
receipt:
(a) if to the Note Issuer, to
CL&P Funding LLC
c/o The Connecticut Light and Power Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: shoopra at xx.xxx
(b) if to the Administrator, to
The Connecticut Light and Power Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(c) if to the Note Trustee, to
First Union Trust Company, National Association
One Xxxxxx Square
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
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
Administrator and the Note Issuer, and with the prior written consent of the
Note Trustee (which consent shall not unreasonably be withheld), but without
the consent of any of the Noteholders, the Certificate Trustee or any of the
Certificateholders (notwithstanding any provision of any other document that
would otherwise require such consent as a precondition of Note 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 Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Officer's Certificate delivered to the Note Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended in writing from time to time by the
Administrator and the Note Issuer with the written consent of the Note
Trustee and the written consent of the Holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes, 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 or the Certificateholders; 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 Notes.
If the written consent of Noteholders is required in connection with an
amendment hereof, approval by Noteholders of the substance of any proposed
amendment or consent shall constitute sufficient consent of the Noteholders
pursuant to this Section, and it shall not be necessary that Noteholders
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 Note Trustee and each of the Rating
Agencies.
Prior to its consent to any amendment to this Agreement, the Note 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 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.
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 Note Issuer and the Note 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 Note Issuer and the
Note 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 Note Issuer
and the Note 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 Note Issuer,
the Trust, the Note Trustee, the Noteholders, the Certificate Trustee, the
Certificateholders, the Delaware Trustee, the Finance Authority and the
Treasurer of the State of Connecticut (the "State Treasurer"). The
Noteholders and the Certificateholders 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 Note Trustee or
the Certificate Trustee, as the case may be, 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 Transition 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 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 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 term.
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 of the Transition Property
pursuant to Section 16-245k(e) or Section 16-245k(g) of the Statute, the
Administrator shall not, prior to the date which is one year and one day
after the termination of the Note Indenture with respect to the Note Issuer,
petition or otherwise invoke or cause the Note Issuer or the Trust to invoke
the process of any court or government authority for the purpose of
commencing or sustaining a case against the Note Issuer or the Trust 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 Note Issuer or the Trust or any substantial part of
the property of the Note Issuer or the Trust, or ordering the winding up or
liquidation of the affairs of the Note Issuer or the Trust.
Section 5.15. Indemnification. The Administrator shall indemnify the
Issuer, the Note Trustee, the Delaware Trustee, the Certificate Trustee, the
Trust, the Finance Authority, the State Treasurer, agencies of the State of
Connecticut 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, 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 Noteholders and the Certificateholders 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 Note Trustee or the Certificate Trustee, as the case may be. 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 of
the Note Trustee, the Certificate Trustee or the Delaware 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.
CL&P FUNDING LLC, as Note Issuer
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
THE CONNECTICUT LIGHT AND POWER COMPANY, as
Administrator
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Treasurer
