ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of May 17, 2001, is made by and
between WMECO Funding LLC, a Delaware limited liability company (together
with any successor thereto permitted under the Note Indenture, as hereinafter
defined, the "Note Issuer"), and Western Massachusetts Electric Company, a
Massachusetts corporation, as Administrator (together with its permitted
successors or assigns as administrator hereunder, the "Administrator").
RECITALS
A. WHEREAS, the Note Issuer is issuing the Notes pursuant to the Note
Indenture dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Note
Indenture"; capitalized terms used herein and not defined herein shall have
the meanings assigned such terms in the Note Indenture), between the Note
Issuer and The Bank of New York, as Note Trustee (in such capacity, together
with its successors and assigns permitted under the Note Indenture, the "Note
Trustee").
B. WHEREAS, the Note Issuer has entered into certain agreements in
connection with the issuance of the Notes, including (i) a Transition
Property Purchase and Sale Agreement dated as of the date hereof (as amended,
modified or supplemented from time to time in accordance with the provisions
thereof, the "Sale Agreement"), between the Note Issuer and Western
Massachusetts Electric Company, as Seller (in such capacity, the "Seller"),
(ii) a Transition Property Servicing Agreement dated as of the date hereof
(as amended, modified or supplemented from time to time in accordance with
the provisions thereof, the "Servicing Agreement"), between the Note Issuer
and Western Massachusetts Electric Company, as Servicer (in such capacity,
together with its successors and assigns permitted under the Servicing
Agreement, the "Servicer"), (iii) an Underwriting Agreement dated as of May
14, 2001 (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Underwriting Agreement"), among
the Note Issuer, Western Massachusetts Electric Company, and the Underwriters
named therein, (iv) the Note Indenture, (v) a Note Purchase Agreement dated
as of the date hereof (as amended, modified or supplemented from time to time
in accordance with the provisions thereof, the "Note Purchase Agreement")
between the Note Issuer and The Bank of New York, as Certificate Trustee (in
such capacity, the "Certificate Trustee") and (vi) a Fee and Indemnity
Agreement dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Fee
Agreement") among the Delaware Trustee, the Massachusetts Development Finance
Agency, the Massachusetts Health and Educational Facilities Authority, the
Certificate Trustee, the Note Issuer, and Massachusetts RRB Special Purpose
Trust WMECO-1 (the "Trust") (the Sale Agreement, the Servicing Agreement, the
Underwriting Agreement, the Note Indenture, the Note Purchase Agreement and
the Fee Agreement are hereinafter referred to collectively as the "Related
Agreements");
C. WHEREAS, pursuant to the Related Agreements, the Note Issuer is
required to perform certain duties in connection with the Notes and the
collateral therefor pledged pursuant to the Note Indenture (the "Collateral")
and to maintain its existence and comply with applicable laws;
D. WHEREAS, the Note Issuer has no employees and does not intend to
hire any employees, and consequently desires to have the Administrator
perform certain duties of the Note Issuer referred to in the preceding
clause, and to provide such additional services consistent with the terms of
this Agreement and the Related Agreements as the Note Issuer may from time to
time request; and
E. WHEREAS, the Administrator has the capacity to provide the services
and the facilities required hereby and is willing to perform such services
and provide such facilities for the Note Issuer on the terms set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I.
Duties of Administrator
Section 1.01. Appointment of Administrator: Acceptance of Appointment.
The Note Issuer hereby appoints the Administrator, and the Administrator
hereby accepts such appointment, to perform the Administrator's obligations
pursuant to this Agreement on behalf of and for the benefit of the Note
Issuer in accordance with the terms of this Agreement and applicable law.
Section 1.02. Duties with Respect to the Related Agreements. Error!
Bookmark not defined. The Administrator agrees to perform all its duties as
Administrator hereunder in accordance with the terms of this Agreement and
applicable law. In addition, the Administrator shall consult with the Note
Issuer regarding the Note Issuer's duties under the Related Agreements.
Unless otherwise notified in writing by the Note Issuer, the Administrator
shall prepare for execution by the Note Issuer, or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the Note Issuer to prepare, file, obtain or deliver pursuant to any Related
Agreement. In furtherance of the foregoing, the Administrator shall take all
appropriate action that it is the duty of the Note Issuer to take pursuant to
the Note Indenture including, without limitation, such of the foregoing as
are required with respect to the following matters under the Note Indenture
(references are to sections of the Note Indenture):
(1) the preparation of or obtaining of the Notes and or any other
Note Issuer documents and instruments required for authentication of the
Notes, if any, and delivery of the same to the Note Trustee for
authentication (Sections 2.03 and 2.10);
(2) the duty to cause the Note Register to be kept and, during any
period of time when the Note Trustee is not the Note Registrar, to give
the Note Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section
2.05);
(3) the fixing or causing to be fixed of any special record date
and the notification of each affected Noteholder with respect to special
record dates, payment dates, and the amount of defaulted interest (plus
interest on such defaulted interest) to be paid, if any (Section
2.08(c));
(4) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.11);
(5) the duty to cause each newly appointed Paying Agent (other
than the Note Trustee), if any, to deliver to the Note Trustee the
instrument specified in the Note Indenture regarding its agreement with
the Note Trustee (Section 3.03);
(6) the direction to any Paying Agent to pay to the Note Trustee
all sums held in trust by such Paying Agent (Section 3.03);
(7) the preparation and filing of all documents and instruments
necessary to maintain the Note Issuer's existence, rights and franchises
as a limited liability company under the laws of the State of Delaware
(unless the Note Issuer becomes, or any successor Note Issuer under the
Note Indenture is or becomes, organized under the laws of any other
State or of the United States of America, in which case the
Administrator will prepare and file all documents and instruments
necessary to maintain such Note Issuer's existence, rights and
franchises under the laws of such other jurisdiction) (Section 3.04);
(8) the obtaining and preservation of the Note Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Note Indenture, the Notes, the Collateral and each
other instrument or agreement included in the Collateral (Section 3.04);
(9) the preparation of all supplements and amendments to the Note
Indenture, filings with the DTE pursuant to the Statute, financing
statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.05 of the Note
Indenture, necessary to protect the Collateral (Section 3.05);
(10) the obtaining of the Opinions of Counsel and the delivery of
such Opinions of Counsel, in accordance with Section 3.06 of the Note
Indenture, as to the Collateral (Section 3.06);
(11) the identification to the Note Trustee in an Officer's
Certificate of any Person (other than the Administrator and the
Servicer) with whom the Note Issuer has contracted to perform its duties
under the Note Indenture (Section 3.07(b));
(12) the preparation and filing of all documents required under the
Statute relating to the transfer of the ownership interest and security
interest in the Transition Property other than those required to be made
by the Seller pursuant to the Related Agreements (Section 3.07(i));
(13) the annual preparation and delivery of an Officer's
Certificate to the Note Trustee, the Certificate Trustee, the Agencies
and the Rating Agencies as to compliance with conditions and covenants
under the Note Indenture (Section 3.09);
(14) the preparation and obtaining of documents and instruments
required for the release of the Note Issuer from its obligations under
the Note Indenture (Section 3.11(b));
(15) promptly after an Authorized Officer of the Administrator has
actual knowledge thereof, the delivery of written notice to the Note
Trustee, the Certificate Trustee, the Agencies and the Rating Agencies
of each Event of Default under the Note Indenture, each Servicer Default
by the Servicer under and as defined in the Servicing Agreement and each
default by the Seller of its obligations under the Sale Agreement
(Sections 3.07(d) and 3.20);
(16) the preparation of or obtaining of an Officer's Certificate,
an Opinion of Counsel and an Independent Certificate relating to (i) the
satisfaction and discharge of the Note Indenture under Section 4.01 of
the Note Indenture or (ii) the exercise of the Legal Defeasance Option
or the Covenant Defeasance Option under Section 4.02 of the Note
Indenture (Sections 4.01 and 4.02);
(17) during any period when the Note Trustee is not the Note
Registrar, the furnishing to the Note Trustee of a list of the names and
addresses of Noteholders as required of the Note Issuer under Section
7.01 of the Note Indenture (Section 7.01);
(18) to the extent not required to be performed by the Servicer,
the preparation and, after execution by the Note Issuer, the Delaware
Trustee or the Certificate Trustee (as the case may be), the filing with
the Securities and Exchange Commission (the "SEC") and the Note Trustee
of the annual reports and of the information, documents and other
reports, including filings on behalf of the Trust pursuant to the
Certificate Indenture, the Declaration of Trust or otherwise, required
to be filed on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the SEC and the
transmission of such summaries, as necessary, to the Note Trustee
(Sections 3.07(h) and 7.03);
(19) the notification of the Note Trustee if and when the Notes are
listed on any stock exchange (Section 7.04);
(20) the opening of one or more segregated trust accounts in the
Note Trustee's name, the preparation of Issuer Orders, and the obtaining
of Opinions of Counsel and the taking of all other actions necessary
with respect to investment and reinvestment of funds in the Collection
Account, the making of written requests to the Note Trustee for
Operating Expenses due and payable before any Payment Date and the
making of Issuer Requests to obtain the release of excess funds from the
Capital Subaccount (Sections 8.02 and 8.03);
(21) the preparation of Issuer Requests and Officers' Certificates
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Collateral (Sections 8.04 and
8.05);
(22) the preparation of Issuer Orders and the obtaining of
Officers' Certificates with respect to the execution of supplemental
indentures (Sections 9.01 and 9.02);
(23) if required by the Note Trustee or the Note Issuer, the
preparation of new Notes conforming to any supplemental indenture
(Section 9.04);
(24) the preparation and delivery of the written notification of
the Note Issuer or, if requested by the Note Trustee, to be given by the
Note Trustee of any redemption of the Notes as required under Section
10.01 or 10.04 of the Note Indenture (Sections 10.01 and 10.04);
(25) the preparation of all Officer's Certificates and obtaining of
all Opinions of Counsel and Independent Certificates, if necessary, with
respect to any requests by the Note Issuer to the Note Trustee to take
any action under the Note Indenture (Section 11.01(a));
(26) the preparation or obtainment and delivery of Officers'
Certificates and Independent Certificates, if necessary, in connection
with the deposit of any property with the Note Trustee that is to be
made the basis for the release of property from the lien of the Note
Indenture (Section 11.01(b));
(27) the recording of the Note Indenture, if applicable, and the
obtaining of an Opinion of Counsel in connection therewith (Section
11.14); and
(28) the obtaining of evidence that the Rating Agency Condition
shall have been satisfied whenever required to be obtained under the
Note Indenture or other Related Agreement.
(b) The Administrator shall also take all appropriate action that
it is the duty of the Note Issuer to take pursuant to the Underwriting
Agreement including, without limitation, the following matters (references
are to sections of the Underwriting Agreement):
(1) to the extent not already delivered, the delivery to the
Representatives (as defined in the Underwriting Agreement) and counsel
for the Underwriters under the Underwriting Agreement (the
"Underwriters"), of copies of the Registration Statement (as defined in
the Underwriting Agreement) (Section 5(a)(iv));
(2) so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, the delivery to the Representatives
and counsel for the Underwriters of as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request (Section 5(a)(iv));
(3) to the extent not required to be performed by the Servicer,
the preparation and, after execution by the Note Issuer, the filing with
the SEC of reports on Form SR as required by Rule 463 under the Act, and
the delivery of such reports on Form SR, as filed with the SEC, to the
Representatives (Section 5(a)(iv));
(4) the preparation and, after execution by the Note Issuer, the
filing of all documents and instruments necessary to qualify the
Certificates for sale under the laws of such jurisdictions as the
Representatives may designate, and the maintenance of such
qualifications in effect so long as required for the distribution of the
Certificates, subject to the qualifications, limitations and exceptions
set forth in the Underwriting Agreement (Section 5(a)(v));
(5) the arrangement for the determination of the legality of the
Certificates for purchase by institutional investors (Section 5(a)(v));
(6) to the extent not already performed by the Servicer, the
delivery to the Representatives of the annual statements of compliance
and the annual independent auditor's servicing reports furnished to the
Note Issuer or the Note Trustee pursuant to the Servicing Agreement or
the Note Indenture (Section 5(a)(vii));
(7) so long as any of the Certificates are outstanding, and to the
extent not already performed by the Servicer, the delivery to the
Representatives of (i) a copy of any filings with the DTE pursuant to
the Financing Order including, but not limited to, any Issuance Advice
Letters and (ii) from time to time, any information concerning the Note
Issuer to the extent readily available, that the Representatives may
reasonably request (Section 5(a)(viii)); and
(8) to the extent, if any, that any rating necessary to satisfy
the condition set forth in Section 6(r) of the Underwriting Agreement is
conditioned upon the furnishing of documents or the taking of other
actions by the Note Issuer on or after the Closing Date (as defined in
the Underwriting Agreement), the delivery of such documents and the
taking of such actions (Section 5(a)(ix)).
Section 1.03. Additional Duties. Error! Bookmark not defined. In
addition to the duties of the Administrator set forth above, the
Administrator shall perform such calculations and shall prepare for execution
by the Note Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Note Issuer to prepare, file,
obtain or deliver pursuant to the Related Agreements, and at the request of
the Note Issuer shall take all appropriate action that it is the duty of the
Note Issuer to take pursuant to the Related Agreements. Subject to Section
5.01 of this Agreement, and in accordance with the directions of the Note
Issuer, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral and
the Related Agreements as are not covered by any of the foregoing provisions
and as are expressly requested by the Note Issuer and are reasonably within
the capability of the Administrator.
(a) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be, in the
Administrator's reasonable opinion, no less favorable to the Note Issuer than
would be available from unaffiliated parties.
Section 1.04. Non-Ministerial Matters. Error! Bookmark not defined.
With respect to matters that in the reasonable judgment of the Administrator
are non-ministerial, the Administrator shall not take any action unless the
Administrator shall have notified the Note Issuer of the proposed action and
the Note Issuer shall have consented. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
(1) the amendment of, or any supplement to, the Note Indenture;
(2) the initiation of any claim or lawsuit by the Note Issuer and
the compromise of any action, claim or lawsuit brought by or against the
Note Issuer (other than in connection with the collection of the RTC
Charge);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Note Registrars, successor Paying
Agents and successor Note Trustees pursuant to the Note Indenture or the
appointment of successor Administrators or successor Servicers, or the
consent to the assignment by the Note Registrar, Paying Agent or Note
Trustee of its obligations under the Note Indenture; and
(5) the removal of the Note Trustee.
(a) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and hereby agrees that it shall
not, take any action that the Note Issuer directs the Administrator not to
take on its behalf.
Section 1.05. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Note
Issuer and the Note Trustee at any time during normal business hours.
ARTICLE II.
Facilities
Section 2.01. Facilities. During the term of this Agreement, the
Administrator shall make available to or provide the Note Issuer with such
facilities as are necessary to conduct the business of the Note Issuer and to
comply with the terms of the Related Agreements. Such facilities shall
include office space to serve as the principal place of business of the Note
Issuer. Initially such office space will be located x/x Xxxxxxx
Xxxxxxxxxxxxx Electric Company at 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000. All facilities provided to the Note Issuer hereunder
shall be provided without warranty of any kind.
ARTICLE III.
Compensation
Section 3.01. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, including the provision of
facilities pursuant to Section 2.01, the Administrator shall be entitled to a
fee of $75,000 per annum, payable in four equal installments for each
quarterly period, payable on the Payment Date as defined in Section 1.01(a)
of the Note Indenture. In addition, the Note Issuer shall reimburse the
Administrator for all filing fees and expenses, legal fees, fees of outside
auditors and other out-of-pocket expenses incurred by the Administrator in
the course of performing its duties hereunder. The Administrator's
compensation and other expenses payable hereunder shall be paid from the
Collection Account pursuant to Section 8.02(d) of the Note Indenture, and the
Administrator shall have no recourse against the Note Issuer for payment of
such amounts other than in accordance with Section 8.02 of the Note
Indenture.
ARTICLE IV.
Additional Information
Section 4.01. Additional Information To Be Furnished to Note Issuer.
The Administrator shall furnish to the Note Issuer from time to time such
additional information regarding the Collateral as the Note Issuer shall
reasonably request.
ARTICLE V.
Miscellaneous Provisions
Section 5.01. Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Note Issuer with respect to the manner
in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Note Issuer, the Administrator shall have
no authority to act for or represent the Note Issuer in any way and shall not
otherwise be deemed an agent of the Note Issuer.
Section 5.02. No Joint Venture. Nothing contained in this Agreement
shall (a) constitute the Administrator and the Note Issuer as members of any
partnership, joint venture, association, syndicate, unincorporated business
or other separate entity, (b) be construed to impose any liability as such on
any of them or (c) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the
others.
Section 5.03. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person even though such Person may engage in
business activities similar to those of the Note Issuer.
Section 5.04. Term of Agreement: Resignation and Removal of
Administrator.
Error! Bookmark not defined. This Agreement shall continue in
force for one year and one day after the retirement of all Notes issued
pursuant to the Note Indenture.
(a) Subject to Sections 5.04(e) and 5.04(f), the Administrator may
resign its duties hereunder by providing the Note Issuer with at least 60
days prior written notice.
(b) Subject to Sections 5.04(e) and 5.04(f), the Note Issuer may
remove the Administrator without cause by providing the Administrator with at
least 60 days prior written notice.
(c) Subject to Sections 5.04(e) and 5.04(f), at the sole option of
the Note Issuer, the Administrator may be removed immediately upon written
notice of termination from the Note Issuer to the Administrator if any of the
following events shall occur:
(1) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default is curable
but cannot be cured in such time, shall not give within ten days such
assurance of cure as shall be reasonably satisfactory to the Note
Issuer);
(2) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to pay
its debts as they become due.
The Administrator agrees that if any of the events specified in
clause (2) or (3) of this Section shall occur, it shall give written notice
thereof to the Note Issuer and the Note Trustee within seven days after the
happening of such event.
(d) No resignation or removal of the Administrator pursuant to
this Section 5.04 shall be effective until (1) a successor Administrator
shall have been appointed by the Note Issuer and (2) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect
to the proposed appointment.
Section 5.05. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 5.04(a) or the resignation or removal of the Administrator pursuant
to Sections 5.04(b) or 5.04(c) respectively, the Administrator shall be
entitled to be paid all fees accruing to it and expenses accrued by it in the
performance of its duties hereunder through the date of such termination,
resignation or removal, to the extent permitted under Article III. The
Administrator shall forthwith upon such termination pursuant to Section
5.04(a) deliver to the Note Issuer all property and documents of or relating
to the Collateral then in the custody of the Administrator. In the event of
the resignation or removal of the Administrator pursuant to Sections 5.04(b),
5.04(c), or 5.04(d) respectively, the Administrator shall cooperate with the
Note Issuer and take all reasonable steps requested to assist the Note Issuer
in making an orderly transfer of the duties of the Administrator.
Section 5.06. Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Administration Agreement shall be in English and in
writing, and any such notice, direction, consent or waiver may be given by
United States mail, courier service, facsimile transmission or electronic
mail (confirmed by telephone, United States mail or courier service in the
case of notice by facsimile transmission or electronic mail) or any other
customary means of communication, and any such notice, direction, consent or
waiver shall be effective when delivered, or if mailed, three days after
deposit in the United States mail with proper postage for ordinary mail
prepaid, except that notices to the Note Trustee are effective only upon
receipt:
(a) if to the Note Issuer, to
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
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: (860) 000- 0000
Email: xxxxxxx@xx.xxx
(b) if to the Administrator, to
Western Massachusetts Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
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: (860) 665 -5457
Telephone: (000) 000-0000
(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 the Rating Agencies, to their addresses as set forth in
the Note Indenture.
or to such other address as any party shall have provided to the other
parties in writing.
Section 5.07. Amendments. This Agreement may be amended in writing by
the Administrator and the Note Issuer and with the prior written consent of
the Note Trustee (which consent shall not unreasonably be withheld), but
without the consent of any of the Noteholders, the Certificate Trustee or any
of the Certificateholders (notwithstanding any provision of any other
document that would otherwise require such consent as a precondition of Note
Trustee consent), to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Officer's Certificate delivered to the Note Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended in writing from time to time by the
Administrator and the Note Issuer with the written consent of the Note
Trustee and the written consent of the Holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such
amendment shall increase or reduce in any manner the amount of, or accelerate
or delay the timing of, RTC Charge Collections without the consent of the
Holders of all the outstanding Notes.
If the written consent of Noteholders is required in connection with an
amendment hereof, approval by Noteholders of the substance of any proposed
amendment or consent shall constitute sufficient consent of the Noteholders
pursuant to this Section, and it shall not be necessary that Noteholders
approve of the particular form of any amendment or consent.
Promptly after the execution of any such amendment and the requisite
consents, if any, the Administrator shall furnish written notification of the
substance of such amendment and a copy thereof to the Note Trustee and each
of the Rating Agencies.
Prior to its consent to any amendment to this Agreement, the Note
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that such amendment is authorized or permitted by this Agreement.
The Note Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Note Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 5.08. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented
to in writing by the Note Issuer and the Note Trustee and is subject to the
satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Note Issuer and the
Note Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Note Issuer and
the Note Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same
manner as the Administrator is bound hereunder and the Rating Agency
Condition is satisfied. Subject to the foregoing, this Agreement shall bind
any successors or assigns of the parties hereto.
Section 5.09. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Administrator, the Note Issuer,
the Trust, the Note Trustee, the Noteholders, the Certificate Trustee, the
Certificateholders, the Delaware Trustee and the Agencies. The Noteholders
and the Certificateholders shall be entitled to enforce their rights and
remedies against the Administrator under this agreement solely through a
cause of action brought for their benefit by the Note Trustee or the
Certificate Trustee, as the case may be, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person
any legal or equitable right, remedy or claim in the Transition Property or
under or in respect of this Agreement or any covenants, conditions or
provisions contained herein, except for the indemnities specifically provided
in Section 5.15. The Persons listed in this section as having the benefit of
this Agreement and the Indemnified Persons listed in Section 5.15 shall have
rights of enforcement with respect to their respective rights in, to and
under this Agreement.
Section 5.10. GOVERNING LAW. THIS AGREEMENT SHALL BE 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 5.11. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 5.12. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but
one and the same agreement.
Section 5.13. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 5.14. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement or the 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 of the Transition
Property pursuant to Section 1H(d)(5) of Chapter 164 of the Massachusetts
General Laws, the Administrator shall not, prior to the date which is one
year and one day after the termination of the Note Indenture with respect to
the Note Issuer, petition or otherwise invoke or cause the Note Issuer or the
Trust to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Note Issuer or the
Trust under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Note Issuer or the Trust or any substantial
part of the property of the Note Issuer or the Trust, or ordering the winding
up or liquidation of the affairs of the Note Issuer or the Trust.
Section 5.15. Indemnification. The Administrator shall indemnify the
Note Issuer, the Note Trustee, the Delaware Trustee, the Certificate Trustee,
the Trust, The Commonwealth of Massachusetts, the Executive Office for
Finance and Administration of The Commonwealth of Massachusetts, the
Agencies, and their respective officials, officers, directors, managers,
employees, consultants, counsel and agents (each an "Indemnified Person")
for, and defend and hold harmless each such Person from and against, any and
all liabilities, obligations, actions, suits, claims, losses, damages,
payments, costs or expenses of any kind whatsoever ("Losses") that may be
imposed on, incurred by or asserted against any such Person as a result of
the Administrator's willful misconduct or negligence in the performance of
its duties or observance of its covenants under this Agreement; provided,
however, that the Administrator shall not be liable for any Losses resulting
from the willful misconduct or gross negligence of such Indemnified Person.
The Noteholders and the Certificateholders shall be entitled to enforce their
rights and remedies against the Administrator under this indemnification
solely through a cause of action brought for their benefit by the Note
Trustee or the Certificate Trustee, as the case may be. The Administrator
shall not be required to indemnify an Indemnified Person for any amount paid
or payable by such Indemnified Person in the settlement of any action,
proceeding or investigation without the written consent of the Administrator,
which consent shall not be unreasonably withheld. Promptly after receipt by
an Indemnified Person of notice of its involvement in any action, proceeding
or investigation, such Indemnified Person shall, if a claim for
indemnification in respect thereof is to be made against the Administrator
under this Section 5.15, notify the Administrator in writing of such
involvement. Failure by an Indemnified Person to so notify the Administrator
shall relieve the Administrator from the obligation to indemnify and hold
harmless such Indemnified Person under this Section 5.15 only to the extent
that the Administrator suffers actual prejudice as a result of such failure.
With respect to any action, proceeding or investigation brought by a third
party for which indemnification may be sought under this Section 5.15, the
Administrator shall be entitled to assume the defense of any such action,
proceeding or investigation. Upon assumption by the Administrator of the
defense of any such action, proceeding or investigation, the Indemnified
Person shall have the right to participate in such action or proceeding and
to retain its own counsel. The Administrator shall be entitled to appoint
counsel of the Administrator's choice at the Administrator's expense to
represent the Indemnified Person in any action, proceeding or investigation
for which a claim of indemnification is made against the Administrator under
this Section 5.15 (in which case the Administrator shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding the Administrator's election to appoint counsel to represent
the Indemnified Person in an action, proceeding or investigation, the
Indemnified Person shall have the right to employ separate counsel (including
local counsel), and the Administrator shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
Administrator to represent the Indemnified Person would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the Indemnified Person and the
Administrator and the Indemnified Person shall have reasonably concluded that
there may be legal defenses available to it that are different from or
additional to those available to the Administrator, (iii) the Administrator
shall not have employed counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person within a reasonable time after
notice of the institution of such action or (iv) the Administrator shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Administrator. Notwithstanding the foregoing, the Administrator shall
not be obligated to pay for the fees, costs and expenses of more than one
separate counsel for the Indemnified Persons (in addition to local counsel).
The Administrator will not, without the prior written consent of the
Indemnified Person, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought under this
Section 5.15 (whether or not the Indemnified Person is an actual or potential
party to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of the Indemnified Person from all
liability arising out of such claim, action, suit or proceeding. The
indemnities contained in this Section 5.15 shall survive the resignation of
the Note Trustee, the Certificate Trustee or the Delaware Trustee or the
termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered under seal as of the day and year
first above written.
WMECO FUNDING LLC, as Note Issuer
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
WESTERN MASSACHUSETTS ELECTRIC COMPANY, as
Administrator
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer-Finance