Exhibit 10.61
TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT
between
WMECO FUNDING LLC
Note Issuer
and
WESTERN MASSACHUSETTS ELECTRIC COMPANY
Seller
Dated as of May 17, 2001
This TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT, dated as of May 17,
2001, is between WMECO Funding LLC, a Delaware limited liability company (the
"Note Issuer"), and Western Massachusetts Electric Company, a Massachusetts
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
May 17, 2001 between Western Massachusetts Electric Company, as Administrator,
and the Note Issuer, as amended and supplemented from
time to time.
"Agencies" means, collectively, the Massachusetts Development Finance
Agency and the Massachusetts Health and Educational Facilities Authority.
"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 and the Fee and Indemnity 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, Boston,
Massachusetts, Hartford, Connecticut or Wilmington, Delaware are authorized
or obligated by law, regulation or executive order to remain closed.
"Capital Subaccount" has the meaning specified in Section 8.02(a) of the
Note Indenture.
"Certificate Indenture" means the Certificate Indenture dated as of May
17, 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 Massachusetts RRB Special Purpose Trust WMECO-1
Rate Reduction Certificates issued under the Certificate Indenture.
"Closing Date" means May 17, 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.
"Customers" means all of Seller's customers or ratepayers taking the
delivery, transmission, distribution, back-up, maintenance, emergency and any
other delivery or energy service provided by Seller to customers within the
territory in which it serves customers, regardless of any such customer's source
of electric power.
"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 May 15,
2001, among the Agencies 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.
"DTE" means the Massachusetts Department of Telecommunications and Energy
and any successor thereto.
"DTE 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 May 17, 2001 among the Note Issuer, the Delaware Trustee, the Certificate
Trustee, the Trust and the Agencies, as amended and supplemented from time to
time.
"Financing Order" means the order of the DTE, DTE-00-40 , issued on
February 7, 2001.
"Fitch" means Fitch, Inc. or its successor.
"Grant" means mortgage, pledge, collaterally assign and xxxxx x xxxx upon
and a security interest in. A Grant of any agreement or instrument shall include
all rights, powers and options (but none of the obligations) of the Granting
Person thereunder, the immediate and continuing right to claim for, collect,
receive and give receipts for payments in respect of and all other monies
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting Person or
otherwise, and generally to do and receive anything that the Granting Person is
or may be entitled to do or receive thereunder with respect thereto.
"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.
"Independent" has the meaning specified in Section 1.01(a) of the Note
Indenture.
"Issuance Advice Letter" means the initial Issuance Advice Letter, dated
May 16, 2001, filed with the DTE by the Seller pursuant to the Financing Order.
"Issuance Date" has the meaning specified in Section 2.01(c)(i) of the Note
Indenture.
"Lien" means a security interest, lien, charge, pledge or encumbrance of
any kind.
"Losses" has the meaning specified in Section 5.01(e).
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor.
"Note Indenture" means the Note Indenture dated as of May 17, 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
May 17, 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 WMECO 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 clerk, any assistant clerk, 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&P, Xxxxx'x 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.
"RTC Charge" means the portion (which may become all) of the Transition
Charge designated pursuant to the Financing Order as the RTC 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 1G(g) of Chapter 164 of the Massachusetts General Laws.
"RTC 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 May 17, 2001 between Western Massachusetts Electric Company, as
Servicer, and the Note Issuer, as amended and supplemented from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc. or its successor.
"Statute" means Chapter 164 of the Massachusetts Acts of 1997, entitled An
Act Relative to Restructuring the Electric Utility Industry in the Commonwealth,
Regulating the Provision of Electricity and Other Services, and Promoting
Enhanced Consumer Protections Therein.
"Transition Charge" means the "Transition Charge" as defined in the Statute
and referred to as the Seller's "Transition Charge" in Western Massachusetts
Electric Company's Restructuring Order, DTE Docket No. 97-120 and subsequent
filings with the DTE pursuant thereto.
"Transition Property" means the transition property that exists under Order
7 of the Financing Order.
"Trust" or "Certificate Issuer" means Massachusetts RRB Special Purpose
Trust WMECO-1, a Delaware business trust.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
"Underwriting Agreement" means the Underwriting Agreement dated as of May
14, 2001 among Western Massachusetts Electric 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 $153,964,509.50,
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 RTC 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 1H(f)(1) of Chapter 164 of the Massachusetts
General Laws, 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 1H(f)(1) of Chapter 164 of the
Massachusetts General Laws, 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 to the Note
Issuer, the Seller hereby Grants to the Note Issuer a security interest
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 RTC Charge pursuant to the Financing Order) to
secure a payment obligation incurred by the Seller in respect of the amount paid
by the Note Issuer to the Seller pursuant to this Agreement (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
Commonwealth of Massachusetts, 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 1H(e) of Chapter 164 of the
Massachusetts General Laws); 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 under federal securities
law 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 Liens created pursuant to Section 1H(e) of Chapter 164
of the Massachusetts General Laws and any Liens that may be granted under the
Basic Documents), and pursuant to Section 1H(f)(1) of Chapter 164 of the
Massachusetts General Laws 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 (excluding any Lien created pursuant to Section 1H(e) of
Chapter 164 of the Massachusetts General Laws and any Lien that may
be Granted under the Basic Documents) and all filings to be made by the Seller
(including filings with the DTE under the Statute) necessary in any jurisdiction
to Grant the Note Issuer a valid first priority perfected ownership interest
(subject to any Lien created pursuant to Section 1H(e) of Chapter 164 of the
Massachusetts General Laws and any Lien that may be Granted under the Basic
Documents) in, and to Grant the Note Trustee a valid first priority perfected
security interest (subject to any Lien created pursuant to Section 1H(e) of
Chapter 164 of the Massachusetts General Laws 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 the Note Issuer's first priority
perfected ownership interest or the Note Trustee's first priority perfected
security interest (in each case, subject to any Lien created pursuant to Section
1H(e) of Chapter 164 of the Massachusetts General Laws and any Lien that may be
Granted under the Basic Documents). Filings have also been made to the extent
required in any jurisdiction to perfect the Back-Up Security Interest granted by
the Seller to the Note Issuer (subject to any Lien created pursuant to Section
1H(e) of Chapter 164 of the Massachusetts General Laws 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 Commonwealth of Massachusetts 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 DTE; (iii) The
Commonwealth of Massachusetts may not alter the provisions of the Statute that
make the RTC Charge irrevocable and binding, limit or alter the Transition
Charge, the Transition Property, or the Financing Order and all rights
thereunder, in a manner that would substantially impair the rights of the
Certificateholders, absent a demonstration by The Commonwealth of Massachusetts
that an impairment is narrowly-tailored and is necessary to advance an important
public interest, such as responding to a "great public calamity" until the
Certificates, together with interest thereon, are fully met and discharged; (iv)
except for periodic adjustments to the RTC Charge required under the Statute,
the DTE does not have authority, either by rescinding, altering or amending the
Financing Order or otherwise, to revalue or revised for ratemaking purposes the
Transition Costs, determine that
the reimbursable transition costs amounts or Transition Charges are unjust or
unreasonable or in any way to reduce or impair the value of Transition Property
either directly or indirectly by taking the reimbursable transition costs
amounts into account when setting other rates for the Seller; nor are the amount
of revenues arising with respect thereto subject to reduction, impairment,
postponement or termination; (v) the process by which the 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; and (viii) The Commonwealth of Massachusetts, 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
Commonwealth of Massachusetts in Section 1H(b)(3) of Chapter 164 of the
Massachusetts General Laws, 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
Certifcateholders 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 RTC 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 RTC 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 RTC Charge, as
adjusted from time to time pursuant to the Financing Order, and all rights to
obtain adjustments to the RTC Charge pursuant to the Financing Order; and (iii)
subject to the cap on the Seller's Transition Charge set forth in the Financing
Order, the owner of the Transition Property is legally entitled to collect
payments in respect of the RTC 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 and to enforce all other material
rights conferred in the Financing Order and the Statute 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 RTC 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 May 14, 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, constitutional amendment or voter initiative.
Notwithstanding anything to the contrary in this Agreement, the Seller makes no
representation or warranty that any amounts actually collected in respect of the
RTC 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 RTC 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 RTC 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, any Lien
under Section 1H(e) of Chapter 164 of the Massachusetts General Laws or the
Back-Up Security Interest, 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.
Western Massachusetts Electric 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 RTC 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 Granted by
the Issuer under the Basic Documents or any Lien under Section 1H(e) of Chapter
164 of the Massachusetts General Laws or the Back-Up Security Interest.
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 DTE
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 DTE pursuant to the Statute and UCC filings,
and cause to be executed and filed such filings, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
ownership or security interest of the Note Issuer in and the Note Trustee in the
Transition Property and the Back-Up Security Interest, including all filings
required under the Statute and the applicable UCC relating to the transfer of
the ownership or security interest in the Transition Property by the Seller to
the Note Issuer, the granting of a security interest in the Transition Property
by the Note Issuer to the Note Trustee and the Back-Up Security Interest and the
continued perfection of such ownership or security interest. The Seller shall
deliver (or cause to be delivered) to the Note Trustee (with a copy of 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 DTE or
The Commonwealth of Massachusetts 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 Commonwealth of Massachusetts, the
Executive Office for Administration and Finance of The Commonwealth of
Massachusetts and the Agencies 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 (as defined in the Note Indenture), the
Restructuring Order (as defined in the Financing Order) (to the extent it
adversely affects the rights of Noteholders or the validity or value of the
Transition Property) or the rights of Noteholders by executive action,
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 clause (ii) of the immediately preceding sentence. In
such event, the Seller agrees to assist the Servicer as reasonably necessary to
perform its obligations under Section 5.02(d) of the Servicing Agreement in all
respects. The costs of any such actions or proceedings shall be payable from RTC
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 DTE'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 1H(d)(5) of Chapter
164 of the Massachusetts General Laws, 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 electric 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
and in that regard, the Seller shall not consummate any such sale unless the
Rating Agency Condition (as defined in the Note Indenture) shall have been
satisfied and Moody's shall have provided written confirmation that such sale
will not result in the withdrawal or downgrade of Moody's then existing ratings
on any Class of Certificates.
Section 4.11. Issuance Advice Letter. The Seller hereby agrees not to
withdraw the filing of the Issuance Advice Letter with the DTE.
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 letters delivered on the Issuance Date
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&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 Section 5.01(b), 5.01(c), 5.01(d) and 5.01(h).
(c) Subject to Section 5.01(i), the Seller shall indemnify the Note
Issuer, the Note Trustee, the Certificate Trustee, the Delaware Trustee, the
Commonwealth of Massachusetts, the Executive Office for Administration and
Finance of The Commonwealth of Massachusetts, the Agencies, the Certificate
Issuer, the Noteholders and the Certificateholders (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 and the Certificateholders 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
Commonwealth of Massachusetts, the Executive Office for Administration and
Finance of The Commonwealth of Massachusetts, the Agencies, the Certificate
Issuer, the Noteholders and the Certificateholders (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 and the Certificateholders 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 RTC 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 (ii) the Seller's breach
in any material respect of any of its representations and warranties contained
in this Agreement (other than the representations and warranties specified in
Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.08(a), 3.08(b), 3.08(c) or 3.08(e), the
breach of which are subject to the repurchase obligation set forth in Section
5.01(b)), except in the case of both clauses (i) and (ii) to the extent of
Losses either resulting from the willful misconduct or gross negligence of such
Indemnified Person or resulting from a breach of a representation and warranty
made by such Indemnified Person in any of the Basic Documents that gives rise to
the Seller's breach; provided, however, that the 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 Sections 5.01(b), 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, constitutional amendment or
voter initiative. Notwithstanding anything to the contrary in this Agreement,
the Seller makes no representation or warranty that any amounts actually
collected in respect of the RTC 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 RTC 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 RTC 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, The Commonwealth of Massachusetts, the Executive Office for
Administration and Finance of The Commonwealth of Massachusetts, the Agencies
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.
(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 and the
Certificateholders 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 stating
that, in the opinion of such counsel (A) such consolidation, merger or
succession and such agreement of assumption comply with this Section and that
all conditions precedent provided for in this Agreement relating to such
transaction have been complied with and (B) either (1) all filings to be made by
the Seller, including filings with the DTE pursuant to the Statute and under the
applicable UCC, have been executed and filed that are necessary to preserve and
protect fully the interests of the Note Issuer and the Note Trustee in the
Transition Property and reciting the details of such filings, or (2) no such
action shall be necessary to preserve and protect such interests and (iv) the
Rating Agencies shall have received prior written notice of such transaction.
When any Person acquires the properties and assets of the Seller substantially
as a whole and becomes the successor to the Seller in accordance with the terms
of this Section 5.02 and execution by such successor of an agreement of
assumption to perform every obligation of the Seller hereunder, then upon
satisfaction of all of the other conditions of this Section 5.02, the Seller
shall automatically and without further notice be released from all of its
obligations hereunder, 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 and the Note Trustee,
adversely affect in any material respect the interests of any Noteholder.
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.
The Note Issuer shall provide a copy of any amendment to this Agreement to
the Rating Agencies and the Note Trustee promptly after the execution thereof.
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
Western Massachusetts Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxxx@xx.xxx
With a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
(b) if to the Note Issuer, to
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxx@xx.xxx
(c) if to the Note Trustee, to
The Bank of New York, as trustee
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(d) if to Moody's, to
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: ABS Monitoring Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(e) if to S&P, to
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Surveillance Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(f) if to Fitch, to
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: ABS Surveillance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxx@xxxxxxxxxxxx.xxx
(g) if to the Agencies, to:
Massachusetts Development Finance Agency
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Massachusetts Health and Educational Facilities Authority
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(h) if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for
Massachusetts RRB Special Purpose Trust WMECO-1
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Compliance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(with copies to the Agencies at the addresses listed herein)
(i) 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, the Note Trustee, the Certificate Trustee,
the Delaware Trustee, The Commonwealth of Massachusetts, the Executive Office
for Administration and Finance of The Commonwealth of Massachusetts, the
Agencies, 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 governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts,
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 Grant of a Lien by the Note Issuer to the Note Trustee
pursuant to the Note Indenture for the benefit of the Noteholders and the Note
Trustee 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 under seal by their respective
officers as of the day and year first above written.
WMECO FUNDING LLC,
Note Issuer
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
WESTERN MASSACHUSETTS ELECTRIC COMPANY,
Seller
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer - Finance
