ADMINISTRATION AGREEMENT BETWEEN PE ENVIRONMENTAL FUNDING LLC AND ALLEGHENY ENERGY SERVICE CORPORATION
Exhibit
10.3
BETWEEN
AND
ALLEGHENY
ENERGY SERVICE CORPORATION
THIS
ADMINISTRATION AGREEMENT dated as of [_________] (as amended, restated,
supplemented or otherwise modified from time to time, this “Administration
Agreement”),
between PE Environmental Funding LLC, a limited liability company formed
under the laws of the State of Delaware (the “Company”),
and
Allegheny Energy Service Corporation, a corporation formed under the laws of
the
State of West Virginia (the “Administrator”).
Capitalized terms used but not otherwise defined herein have the meanings
assigned to such terms in Appendix A to this Administration
Agreement.
WITNESSETH:
WHEREAS,
the Administrator was created to perform certain management duties on behalf
of
Allegheny Energy, Inc. (the “System”),
its
utility subsidiary companies and its non-utility subsidiary companies (the
“Subsidiaries”);
and
WHEREAS,
the Administrator offers to provide a central organization to furnish to the
System, the Subsidiaries and the Company certain advisory, supervisory and
other
services in accordance with current practices and procedures; and
WHEREAS,
the Company wishes to accept the offer proposed by the
Administrator;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be reasonably bound,
hereby agree as follows:
Section
1. Duties
of Administrator; Management Services.
The
Administrator hereby offers to furnish to the Company the services detailed
on
Exhibit I attached hereto and made a part hereof.
Section
2. Compensation.
(a) For
all services rendered for the Company by the Administrator pursuant to this
Administration Agreement, as compensation for the performance of the
Administrator’s obligations under this Administration Agreement (including the
compensation of Persons serving as Managers), the Administrator shall be
entitled to an annual fee (the “Administration
Fee”),
payable by the Company in arrears proportionately on each Payment Date. The
Administration Fee shall not exceed $_________ in the aggregate annually. The
Administrator’s compensation and other expenses, including any indemnities,
payable hereunder shall be paid from the Collection Account pursuant to
Section 8.02(e) of the Indenture,
and
the
Administrator shall have no recourse against the Company for payment of such
amounts other than in accordance with Section 8.02 of the Indenture. For
services rendered to one or more of the companies in the System, the applicable
approved allocation factor will be used.
(b) The
payment for services rendered by the Administrator to the System, the
Subsidiaries and the Company shall cover all the costs and expenses of the
Administrator doing business, excluding only a return for the use of equity
capital, and each Subsidiary, the System and the Company shall pay its direct
or
fair proportionate share for such services.
(c) Payment
shall be made by the Company to the Administrator on each Payment Date.
(d) Nothing
herein shall be construed to release the officers and directors of the Company
from the performance of their respective duties or limit the exercise of their
powers as prescribed by applicable Requirements of Law or
otherwise.
Section
3. Terms
of the Agreement; Resignation and Removal of Administrator.
(a) This
Administration Agreement shall continue in full force and effect until the
payment in full of the Environmental Control Bonds and any Additional
Securities, although the Company may terminate this Administration Agreement
at
any time with or without notice for any cause deemed by it to be sufficient,
provided, however, that removal of the Administrator pursuant to this
Section 3
shall be
effective until (i) a Successor Administrator shall have been appointed by
the
Company and (ii) such Successor Administrator has agreed in writing to be bound
by the terms of this Administration Agreement in the same manner as the
Administrator is bound hereunder, and the PSCWV Condition set forth in Section
7(b) of this Administration Agreement has been satisfied.
(b) The
Administrator shall not resign from the obligations and duties imposed on it
as
Administrator under this Administration Agreement except upon a determination
that the performance of its duties under this Administration Agreement shall
no
longer be permissible under applicable Requirements of Law. Notice of any such
determination permitting the resignation of the Administrator shall be
communicated to the Company, the PSCWV, the Indenture Trustee and each Rating
Agency at the earliest practicable time (and, if such communication is not
in
writing, shall be confirmed in writing at the earliest practicable time), and
any such determination shall be evidenced by an Opinion of Counsel to such
effect delivered to the Company, the PSCWV and the Indenture Trustee
concurrently with or promptly after such notice.
(c) Subject
to satisfaction of the PSCWV Condition set forth in Section 7(b)
of this
Administration Agreement, the Administrator may be removed by the Indenture
Trustee, as assignee of the Issuer, immediately upon written notice of
termination to the Administrator if any of the following events shall
occur.
(i) the
Administrator defaults in the performance of any of its duties under this
Administration Agreement and, after notice of such default, fails to cure such
default within 30 days (or, if such default cannot be cured in such time, fails
to give within 30
2
days
such
assurance of cure as shall be reasonably satisfactory to the Company and the
PSCWV); or
(ii) an
Insolvency Event occurs with respect to the Administrator;
The
Administrator agrees that if an event specified in clause (ii) of this
Section 3(c)
occurs,
it shall give written notice thereof to the Company, the PSCWV and the Indenture
Trustee within seven days after the occurrence of such event.
(d) No
resignation or removal of the Administrator pursuant to this Section 3
shall be
effective until a Successor Administrator shall have been appointed by the
Company, the Rating Agency Condition shall have been satisfied with respect
to
the proposed appointment, the PSCWV Condition set forth in Section 7(b)
of this
Administration Agreement has been satisfied, and such Successor Administrator
shall have agreed in writing to be bound by the terms of this Administration
Agreement in the same manner as the Administrator is bound
hereunder.
(e) No
Administrator default may be waived without satisfaction of the PSCWV Condition
set forth in Section 7(b)
of this
Administration Agreement.
Section
4. Action
Upon Termination; Resignation or Removal.
Promptly upon the effective date of termination of this Administration Agreement
pursuant to Section 3(a),
the
resignation of the Administrator pursuant to Section 3(b)
or the
removal of the Administrator under Section 3(c),
the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or removal. The
Administrator shall forthwith upon such termination pursuant to Section 3(a)
deliver
to the Company all property and documents of or relating to the Collateral
then
in the custody of the Administrator. In the event of the resignation of the
Administrator pursuant to Section 3(b)
or the
removal of the Administrator under Section 3(c),
the
Administrator shall cooperate with the Company and take all reasonable steps
requested to assist the Company in making an orderly transfer of the duties
of
the Administrator.
Section
5. Enforcement
by PSCWV.
The
Administrator acknowledges that the PSCWV has authority to enforce all
provisions of this Administration Agreement for the benefit of Customers
pursuant to the Financing Order to the extent permitted by applicable
Requirements of Law. Notwithstanding anything to the contrary contained in
this
Administration Agreement, for the avoidance of doubt, any right, remedy or
claim
to which any Customer may be entitled pursuant to this Administration Agreement
may be asserted or exercised only by the PSCWV for the benefit of such
Customer.
3
Section
6. Indemnity.
(a) The
Company shall indemnify the Administrator, its shareholders, directors,
officers, employees and Affiliates against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the
Administrator is a party thereto) which any of them may pay or incur arising
out
of or relating to this Administration Agreement and the services called for
herein; provided, however, that such indemnity shall not apply to any such
loss,
claim, damage, penalty, judgment, liability or expense resulting from the
Administrator’s negligence or willful misconduct in the performance of its
obligations hereunder.
(b) The
Administrator shall indemnify the Company and the Indenture Trustee and their
respective officers, officials, directors, managers and employees (each, an
“Indemnified
Party”)
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not such Indemnified Party is a party thereto)
which any of them may incur as a result of the Administrator’s gross negligence
or willful misconduct in the performance of its obligations
hereunder.
Section
7. Amendment.
(a) Subject
to Section 7(b),
this
Administration Agreement may be amended by the Administrator and the Company,
with the consent of the Indenture Trustee and the satisfaction of the Rating
Agency Condition. Promptly after the execution of any such amendment and
consent, the Company shall furnish written notification of the substance of
such
amendment and consent to each of the Rating Agencies. Prior to the execution
of
any amendment to this Administration Agreement, the Company and the Indenture
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
Administration Agreement and the Opinion of Counsel referred to in
Section 3.10 of the Servicing Agreement. Subject to Section 7(b),
the
Company and each Trustee may, but shall not be obligated to, enter into any
such
amendment which affects their own rights, duties or immunities under this
Administration Agreement or otherwise.
(b) Notwithstanding
anything to the contrary in Section 7(a),
no
amendment or modification of this Administration Agreement shall be effective
unless the process set forth in this Section
7(b)
has been
followed.
(i) The
PSCWV Condition.
At
least 16 days prior to the effectiveness of any such amendment or
modification, and after obtaining the other necessary approvals set forth in
Section 7(a),
except
for the consent of the Indenture Trustee and the Environmental Control
Bondholders if the consent of the Environmental Control Bondholders is required
or sought by the Indenture Trustee in connection with such amendment or
modification, the Company shall have delivered to the PSCWV’s executive director
and general counsel written notification of any proposed amendment or
modification, which notification shall contain:
(A) a
reference to Case Nos. 05-0402-E-CN and 05-0750-E-PC and any other case
number under which a Financing Order has been issued;
4
(B) an
Officers’ Certificate stating that the proposed amendment or modification has
been approved by all parties to this Administration Agreement; and
(C) a
statement identifying the person to whom the PSCWV or its authorized
representative is to address any response to the proposed amendment or
modification or to request additional time.
(ii) The
PSCWV
or its authorized representative shall, within 15 days of receiving the
notification complying with Section
7(b)(i)
above,
either:
(A) provide
notice of its determination that the proposed amendment or modification will
not
under any circumstances have the effect of increasing the ongoing qualified
costs related to the Environmental Control Bonds,
(B) provide
notice of its consent or lack of consent to the person specified in Section
7(b)(i)(C)
above,
or
(C) be
conclusively deemed to have consented to the proposed amendment or
modification,
unless,
within 15 days of receiving the notification complying with Section
7(b)(i)
above,
the PSCWV or its authorized representative delivers to the office of the person
specified in Section
7(b)(i)(C)
above
with a written statement requesting an additional amount of time not to exceed
15 days in which to consider whether to consent to the proposed amendment or
modification. If the PSCWV or its authorized representative requests an
extension of time in the manner set forth in the preceding sentence, then the
PSCWV shall either provide notice of its consent or lack of consent or notice
of
its determination that the proposed amendment or modification will not under
any
circumstances increase ongoing qualified costs to the person specified in
Section
7(b)(i)(C)
above
not later than the last day of such extension of time or be conclusively deemed
to have consented to the proposed amendment or modification on the last day
of
such extension of time. Any amendment or modification requiring the consent
of
the PSCWV shall become effective on the later of (i) the date proposed by the
parties to such amendment or modification or (ii) the first day after the
expiration of the 15-day period provided for in this Section
7(b)(ii),
or, if
such period has been extended pursuant hereto, the first day after the
expiration of such period as so extended.
(iii) Following
the delivery of a notice to the PSCWV by the Company under Section
7(b)(i)
above,
the Company shall have the right at any time to withdraw from the PSCWV further
consideration of any notification of a proposed amendment or modification.
Such
withdrawal shall be evidenced by the prompt written notice thereof by the
Company to the PSCWV, the Indenture Trustee and the Servicer.
(c) For
the
purpose of this Section 7,
an
“authorized representative” of the PSCWV means any person authorized to act on
behalf of the PSCWV, as evidenced by an Opinion of Counsel (which may be the
general counsel) to the PSCWV.
5
Section
8. Successors
and Assigns.
This
Administration Agreement may not be assigned by the Administrator unless such
assignment is previously consented to in writing by the Company, the PSCWV
and
the Indenture Trustee and subject to satisfaction of the Rating Agency Condition
in respect thereof. Any 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
Administration Agreement may be assigned by the Administrator without the
consent of the Company, the PSCWV or the Indenture Trustee to a corporation
or
other organization that is a successor (by merger, consolidation or purchase
of
assets) to the Administrator or to any affiliate of the Administrator; provided
that such successor corporation or other organization executes and delivers
to
the Company and the PSCWV a written 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. Subject to the foregoing,
this Administration Agreement shall bind any successors or assigns of the
parties hereto.
Section
9. Administrator
as Independent Contractor.
For all
purposes of this Administration Agreement, the Administrator shall be an
independent contractor and shall not be subject to the supervision of the
Company with respect to the manner in which it accomplishes the performance
of
its obligations hereunder. Unless expressly authorized by the Company, the
Administrator shall have no authority to act for or represent the Company in
any
way and shall not otherwise be deemed an agent of the Company.
Section
10. No
Joint Venture.
Nothing
contained in this Administration Agreement shall (a) constitute the
Administrator and the Company 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
11. Other
Activities as 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 or entity even though such person or entity
may engage in business activities similar to those of the Company.
Section
12. Assignment
to Indenture Trustee.
The
Administrator hereby acknowledges and consents to the mortgage, pledge,
assignment and grant of a security interest by the Company to the Indenture
Trustee pursuant to the Indenture for the benefit of the Environmental Control
Bondholders of any and all of the Company’s rights hereunder to the Indenture
Trustee.
Section
13. Nonpetition
Covenants.
Notwithstanding any prior termination of this Administration Agreement or the
Indenture, but subject to a court of competent jurisdiction’s rights, upon
application by the Company or the Indenture Trustee, to order the sequestration
and payment of Environmental Control Revenues arising with respect to the
Transferred Environmental Control Property, notwithstanding any bankruptcy,
reorganization or other insolvency proceedings with respect to the debtor,
pledgor or transferor of the Transferred Environmental Control Property pursuant
to Section 24-2-4e(k)(4) of the Statute, the Administrator shall not, prior
to the date which is one year and one day after the termination of
6
the
Indenture, petition or otherwise invoke or cause the Company to invoke the
process of any court or government authority for the purpose of commencing
or
sustaining a case against the Company under the federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or
any
substantial part of the property of the Company, or ordering the winding up
or
liquidation of the affairs of the Company.
Section
14. GOVERNING
LAW.
THIS
ADMINISTRATION AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF WEST VIRGINIA, 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.
7
IN
WITNESS WHEREOF, the Company and the Administrator have caused this
Administration Agreement to be signed by its duly authorized officers, effective
as of the date first written above.
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By:
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[Authorized
Officer]
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| Attest: |
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Assistant
Secretary
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ALLEGHENY
ENERGY SERVICE CORPORATION
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By:
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[Authorized
Officer]
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| Attest: |
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Assistant
Secretary
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8
Exhibit I
Duties
of the Administrator
In
accordance with the terms and conditions of the Administration Agreement dated
as of [_________] (as amended, restated, supplemented or otherwise modified
from
time to time, the “Administration
Agreement”),
the
Administrator agrees to perform all its duties as Administrator under the
Administration Agreement in accordance with the terms of the Administration
Agreement and applicable Requirements of Law. In addition, the Administrator
shall consult with the Company regarding the Company’s duties under the
applicable Basic Documents. Unless otherwise notified in writing by the Company,
the Administrator shall prepare for execution by the Company, 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
Company to prepare, file or deliver pursuant to any Basic Document.
(a) In
furtherance of the foregoing, the Administrator shall take all appropriate
action that it is the duty of the Company to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture:
(1) the
preparation of or obtaining of the documents and instruments required for
authentication of the Bonds, if any, and delivery of the same to the Indenture
Trustee as specified in Sections 2.01, 2.02, 2.04, 2.06 and 2.10 of the
Indenture;
(2) the
duty
to keep the Bond Register and to give the Indenture Trustee notice of any
appointment of a new Bond Registrar and the location, or change in location,
of
the Bond Register as specified in Section 2.05 of the
Indenture;
(3) the
fixing or causing to be fixed of any special record date and the notification
of
each affected Bondholder with respect to special record dates, Payment Dates,
and the amount of defaulted interest to be paid, if any as specified in
Section 2.08(c) of the Indenture;
(4) the
maintenance of an office or agency in the Borough of Manhattan, City of New
York, where the Bonds may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Company in respect of
the
Bonds and the Indenture may be served as specified in Section 3.02 of the
Indenture;
(5) the
duty
to cause newly appointed Paying Agents, if any, to deliver to the Indenture
Trustee the instrument specified in the Indenture regarding funds held in trust
as specified in Section 3.03 of the Indenture;
(6) the
direction to Paying Agents to pay to the Indenture Trustee all sums held in
trust by such Paying Agents as specified Section 3.03 of the
Indenture;
(7) the
preparation and filing of all documents and instruments necessary to maintain
the Company’s existence, good standing, rights and franchises as a limited
liability company under the laws of the State of Delaware (unless the Company
becomes, or any successor Company under the Indenture is or becomes, organized
under the laws of any other State or of the United States of America, in which
case the Administrator will prepare and file all
Exh
I-1
documents
and instruments necessary to maintain such Company’s existence, good standing,
rights and franchises under the laws of such other jurisdiction), as specified
in Section 3.04 of the Indenture;
(8) the
obtaining and preservation of the Company’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of the Indenture, the Bonds, the Collateral and
each
other instrument or agreement included in the Collateral, as specified in
Section 3.04 of the Indenture;
(9) the
preparation of all supplements and amendments to the Indenture, filings with
the
PSCWV and the Secretary of State of the State of West Virginia pursuant to
the
Statute, financing statements, continuation statements, instruments of further
assurance and other instruments, in accordance with Section 3.05 of the
Indenture, necessary to protect the Collateral;
(10) the
preparation and filing of all documents required under the Statute relating
to
the security interest in the Transferred Environmental Control Property as
specified in Section 3.05 of the Indenture;
(11) the
obtaining of the Opinions of Counsel and the delivery of such Opinions of
Counsel, in accordance with Section 3.06 of the Indenture, as to the
Collateral, and the annual delivery of the Officers’ Certificate and certain
other statements, in accordance with Section 3.09 of the Indenture, as to
compliance with the Indenture;
(12) the
identification to the Indenture Trustee in an Officer’s Certificate of any
Person with whom the Company has contracted to perform its duties under the
Indenture, as specified in Section 3.07(b) of the Indenture;
(13) the
annual preparation and delivery of an Officer’s Certificate to the Indenture
Trustee, Potomac Edison and the Rating Agencies as to compliance with conditions
and covenants under the Indenture, as specified in Section 3.09 of the
Indenture;
(14) the
preparation and obtaining of documents and instruments required for the release
of the Company from its obligations under the Indenture, as specified in
Section 3.11(b) of the Indenture;
(15) the
delivery of notice to the Indenture Trustee, Potomac Edison and the Rating
Agencies of each Default or Event of Default, as specified in Section 3.17
of the Indenture;
(16) the
taking of all lawful action to enforce the Company’s rights under the Transfer
Agreement, the Sale Agreement and the Servicing Agreement and to compel and
secure performance by the Transferor, the Seller and the Servicer, of each
of
their obligations to the Company or under the Transfer Agreement, the Sale
Agreement or the Servicing Agreement, as applicable, as specified in
Sections 3.20(a) of the Indenture;
(17) the
taking of all lawful action that the Indenture Trustee may request following
a
default by any of the Transferor, the Seller or the Servicer, of any of their
obligations
Exh
I-2
to
the Company under the Transfer Agreement, the Sale Agreement or the Servicing
Agreement, as applicable, as specified in Section 3.20(f) of the
Indenture;
(18) the
delivery of notice to the Indenture Trustee and the Rating Agencies of a
Servicer Default under the Servicing Agreement and the taking of all reasonable
steps available to the Company to remedy such Servicer Default, as specified
in
Section 3.20(g) of the Indenture;
(19) the
preparation of an Officers’ Certificate and an Independent Certificate relating
to (i) the satisfaction and discharge of the Indenture under Section 4.01
of the Indenture or (ii) the exercise of the Legal Defeasance Option or the
Covenant Defeasance Option under Section 4.02 of the
Indenture;
(20) the
delivery to a Responsible Officer of the Indenture Trustee and the Rating
Agencies, within five days after an Authorized Officer of the Company has
knowledge of the occurrence thereof, written notice in the form of an Officers’
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (iv) of the definition of
“Event of Default” set forth in Section 5.01 of the Indenture, its status and
what action the Company is taking or proposes to take with respect
thereto;
(21) the
furnishing to the Indenture Trustee of (i) each Record Date with respect to
each Series and (ii) three months after the last Record Date with respect to
each Series, the names and addresses of Environmental Control Bondholders during
any period when the Indenture Trustee is not the Bond Registrar as specified
in
Section 7.01 of the Indenture;
(22) to
the
extent not required to be performed by the Servicer, the preparation and, after
execution by the Company, the filing with the Indenture Trustee of the annual
reports and of the information, documents and other reports as specified in
Section 7.03 of the Indenture;
(23) the
notification of the Indenture Trustee if and when the Bonds are listed on any
stock exchange as specified in Section 7.04 of the Indenture;
(24) the
preparation, obtaining or filing of the instruments, opinions and certificates
and other documents required for the release of Collateral as specified in
Section 8.03 of the Indenture;
(25) the
opening of one or more segregated trust accounts in the Indenture 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 as specified in Sections 8.02
and 8.04 of the Indenture;
(26) the
preparation of Issuer Requests and Officers’ Certificates and the obtaining of
Opinions of Counsel and Independent Certificates, if necessary, for the release
of the Collateral as specified in Sections 8.03 and 8.04 of the
Indenture;
(27) the
preparation and delivery of Officers’ Certificates, Issuer Requests, Opinions of
Counsel and Independent Certificates for the release of property from the lien
of the Indenture as specified in Section 8.03(c) of the
Indenture;
Exh
I-3
(28) the
appointment of a firm of Independent certified public accountants of recognized
national reputation for purposes of preparing and delivering the reports or
certificates of such accountants required by the Indenture and the related
Series Supplements as specified in Section 8.05 of the
Indenture;
(29) the
preparation of Issuer Orders, the obtaining of Officers’ Certificates and
Opinions of Counsel with respect to the execution of supplemental indentures
as
specified in Sections 9.01 and 9.02 of the Indenture;
(30) the
preparation of new Bonds conforming to any supplemental indenture as specified
in Section 9.04 of the Indenture;
(31) the
preparation of all Officers’ Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Company to the Indenture
Trustee to take any action under the Indenture as specified in
Section 11.01 of the Indenture; and
(32) the
notification of the Indenture Trustee of any notice received by the Company
from
the Environmental Control Bondholders, and the delivery of any notices to
relevant parties at the addresses specified in Section 11.04 of the
Indenture.
(b) The
Administrator shall also take all appropriate action that it is the duty of
the
Company to take pursuant to the Issuer LLC Agreement.
(c) The
Administrator shall also take all appropriate action that it is the duty of
the
Company to take pursuant to the Underwriting Agreement.
(d) In
carrying out the foregoing duties or any of its other obligations under the
Administration 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 Company than would be available from
unaffiliated parties.
(e) 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 Company of the proposed action and the
Company shall have consented. For the purpose of the preceding sentence,
“non-ministerial matters” shall include, without limitation:
(1) the
amendment of, or any supplement to, the Indenture;
(2) the
initiation of any action, claim or lawsuit by the Company and the compromise
of
any action, claim or lawsuit brought by or against the Company (other than
in
connection with the collection of the Environmental Control
Charge);
(3) the
amendment, change or modification of the Basic Documents;
(4) the
appointment of successor Bond Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the appointment of
successor
Exh
I-4
Administrators
or Successor Servicers, or the consent to the assignment by the Bond Registrar,
Paying Agent or Indenture Trustee of its obligations under the Indenture;
and
(5) the
removal of the Indenture Trustee.
(f) Notwithstanding
anything to the contrary in the Administration Agreement, the Administrator
shall not be obligated to, and hereby agrees that it shall not, take any action
that the Company directs the Administrator not to take on its
behalf.
(g) 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 Company and the Indenture Trustee at any time
during normal business hours.
(h) During
the term of the Administration Agreement, the Administrator shall make available
to or provide the Company with such facilities as are necessary to conduct
the
business of the Company and to comply with the terms of the Basic Documents.
Such facilities shall include office space to serve as the principal place
of
business of the Company. Initially such office space will be located at
[address]. All facilities provided to the Company hereunder shall be provided
without warranty of any kind.
Exh
I-5
Table
of
Contents
|
Page
|
||
|
Section
1.
|
Duties
of Administrator; Management Services
|
1
|
|
Section
2.
|
Compensation
|
1
|
|
Section
3.
|
Terms
of the Agreement; Resignation and Removal of Administrator
|
2
|
|
Section
4.
|
Action
Upon Termination; Resignation or Removal.
|
3
|
|
Section
5.
|
Enforcement
by PSCWV.
|
3
|
|
Section
6.
|
Indemnity.
|
4
|
|
Section
7.
|
Amendment
|
4
|
|
Section
8.
|
Successors
and Assigns.
|
6
|
|
Section
9.
|
Administrator
as Independent Contractor.
|
6
|
|
Section
10.
|
No
Joint Venture
|
6
|
|
Section
11.
|
Other
Activities as Administrator.
|
6
|
|
Section
12.
|
Assignment
to Indenture Trustee.
|
6
|
|
Section
13.
|
GOVERNING
LAW.
|
7
|
|
Appendix
A
|
Master
Definitions
|
i