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EXHIBIT 1.1
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST BEC-1
RATE REDUCTION CERTIFICATES
BEC FUNDING LLC
BOSTON EDISON COMPANY
UNDERWRITING AGREEMENT
New York, New York
[ ], 1999
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
1. Introduction. Massachusetts RRB Special Purpose Trust
BEC-1, a Delaware business trust to be formed (the "Trust"), will sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of
Massachusetts RRB Special Purpose Trust BEC-1 Rate Reduction Certificates
identified in Schedule I hereto (the "Certificates"). If the firm or firms
listed in Schedule I hereto include only the firm or firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms.
The Trust will be formed pursuant to a Declaration of Trust to be dated
prior to the Closing Date (as hereinafter defined) (the "Declaration of Trust"),
by The Bank of New York (Delaware), as Delaware Trustee (the "Delaware
Trustee"), and the Massachusetts Development Finance Agency and the
Massachusetts Health and Educational Facilities Authority (each an "Agency,"
and, collectively, the "Agencies"), acting jointly as settlors thereunder
pursuant to Chapter 164 of the Massachusetts Acts of 1997 (the "Statute"). The
Certificates will be issued pursuant to a Certificate Indenture dated as of
[ ], 1999 (the "Certificate Indenture"), between the Trust, the Delaware
Trustee and The Bank of New York, as Certificate Trustee (the "Certificate
Trustee"). The assets of the Trust will consist solely of the BEC Funding LLC
Notes (the "Notes"), issued by BEC Funding LLC, a Delaware limited liability
company (the "Note Issuer"), and the payments received with respect thereto.
The Notes will be issued pursuant to a Note Indenture dated as of [ ],
1999 (the "Note Indenture"), between the Note Issuer and
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The Bank of New York, as Note Trustee (the "Note Trustee"), and
purchased by the Trust pursuant to a Note Purchase Agreement dated as of
[ ], 1999 (the "Note Purchase Agreement"), between the Note Issuer and the
Trust. Each Class of Certificates will correspond to a Class of Notes and will
represent fractional undivided beneficial interests in such underlying Class of
Notes and the proceeds thereof. The Notes will be secured primarily by, and will
be payable from, the Transition Property described in the Issuance Advice
Letter. Such Transition Property will be sold to the Note Issuer by Boston
Edison Company, a Massachusetts corporation (the "Company"), pursuant to a
Transition Property Purchase and Sale Agreement dated as of [ ], 1999
(the "Sale Agreement"), between the Company, as Seller, and the Note Issuer. The
Transition Property will be serviced pursuant to a Transition Property Servicing
Agreement dated as of [ ], 1999 (as amended and supplemented from time to
time, the "Servicing Agreement"), between the Company, as Servicer, and the Note
Issuer.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings given to them in the Note Indenture.
2. Representations and Warranties.
(a) Each of the Company and the Note Issuer represents and
warrants to, and agrees with, each Underwriter as set forth below in
this Section 2(a). Certain terms used in this Section 2(a) are defined
in paragraph (iii) below.
(i) If the offering of the Certificates is a Delayed
Offering (as specified in Schedule I hereto), paragraph (a)
below is applicable and, if the offering of the Certificates
is a Non-Delayed Offering (as so specified), paragraph (b)
below is applicable.
a. The Note Issuer, the Notes and the
Certificates meet the requirements for the
use of Form S-3 under the Securities Act of
1933 (the "Act"), and the Note Issuer has
filed with the Securities and Exchange
Commission (the "SEC") a registration
statement (file number 333-74671) on such
Form, including a basic prospectus, for
registration under the Act of the offering
and sale of the Certificates. The Note
Issuer may have filed one or more amendments
thereto, and may have used a Preliminary
Final Prospectus, each of which has
previously been furnished to you. Such
registration statement, as so amended, and
in the form heretofore delivered to you, has
become effective. The offering of the
Certificates is a Delayed Offering and,
although the Basic Prospectus may not
include all the information with respect to
the Certificates and the offering thereof
required by the Act and the rules thereunder
to be included in the Final Prospectus, the
Basic Prospectus includes all such
information required by the Act and the
rules thereunder to be included therein as
of the Effective Date. The Note Issuer will
next file with the SEC pursuant to Rules 415
and 424(b)(2) or (5) a final supplement to
the form of prospectus included in such
registration statement relating to the
Certificates
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and the offering thereof. As filed, such
final prospectus supplement shall include
all required information with respect to the
Certificates and the offering thereof and,
except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Note Issuer has advised
you, prior to the Execution Time, will be
included or made therein.
b. The Note Issuer, the Notes and the
Certificates meet the requirements for the
use of Form S-3 under the Act and the Note
Issuer has filed with the SEC a registration
statement (file number 333-74671) on such
Form, including a basic prospectus, for
registration under the Act of the offering
and sale of the Certificates. The Note
Issuer may have filed one or more amendments
thereto, including a Preliminary Final
Prospectus, each of which has previously
been furnished to you. The Note Issuer will
next file with the SEC either (x) a final
prospectus supplement relating to the
Certificates in accordance with Rules 430A
and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration
statement, an amendment to such registration
statement, including the form of final
prospectus supplement. In the case of clause
(x), the Note Issuer has included in such
registration statement, as amended at the
Effective Date, all information (other than
Rule 430A Information) required by the Act
and the rules thereunder to be included in
the Final Prospectus with respect to the
Certificates and the offering thereof. As
filed, such final prospectus supplement or
such amendment and form of final prospectus
supplement shall contain all Rule 430A
Information, together with all other such
required information, with respect to the
Certificates and the offering thereof and,
except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Note Issuer has advised
you, prior to the Execution Time, will be
included or made therein.
(ii) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is first
filed (if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of
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the Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the
Note Indenture and the Certificate Indenture did or will
comply in all material respects with the requirements of the
Trust Indenture Act and the rules and regulations thereunder;
and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
neither the Note Issuer nor the Company makes any
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements
of Eligibility and Qualification (Forms T-1) under the Trust
Indenture Act of the Note Trustee and the Certificate Trustee
or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Note Issuer by or on
behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto). No stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted.
(iii) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "the
Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the
date hereof on which a document incorporated by reference in
the Registration Statement is filed. "Execution Time" shall
mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean
the prospectus referred to in paragraph (a)(i) above contained
in the Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Certificates and the offering thereof and
is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to
the Certificates that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus
or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Certificates, including the
Basic Prospectus, included in the Registration Statement at
the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a)(i) above,
including all incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it
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shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date
(as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule
430A" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with
respect to the Certificates and the offering thereof permitted
to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated
therein by reference. A "Non-Delayed Offering" shall mean an
offering of Certificates which is intended to commence
promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all
information (other than Rule 430A Information) with respect to
the Certificates so offered must be included in such
registration statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of Certificates
pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the
result that only information required pursuant to Rule 415
need be included in such registration statement at the
effective date thereof with respect to the Certificates so
offered. Whether the offering of the Certificates is a
Non-Delayed Offering or a Delayed Offering shall be set forth
in Schedule I hereto.
3. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the Trust
will sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, at the purchase price for each class of
Certificates set forth in Schedule II hereto, the respective principal amount of
each class of Certificates set forth opposite the name of each Underwriter on
Schedule II hereto. Simultaneously with the execution and delivery of this
Agreement, and as a condition precedent to the effectiveness of this Agreement,
the Agencies will deliver to the Company, the Note Issuer and the
Representatives an executed copy of the certificate attached hereto as Appendix
A.
4. Delivery and Payment. Delivery of and payment for the
Certificates shall be made at 9:00 AM Eastern Standard Time on [ ], 1999
(or such later date not later than five business days after such specified date
as the Representatives shall designate), which date and time may be postponed
by agreement between the Representatives and the Note Issuer or as
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provided in Section 9 hereof (such date and time of delivery and payment for the
Certificates being herein called the "Closing Date"). Delivery of the
Certificates shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to the Trust by wire transfer of
immediately available funds in U.S. dollars. Delivery of the Certificates shall
be made at such location as the Representatives shall reasonably designate at
least one business day in advance of the Closing Date. The Certificates to be so
delivered shall be initially represented by Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"). The interests
of beneficial owners of the Certificates will be represented by book entries on
the records of DTC and participating members thereof. Definitive Certificates
will be available only under limited circumstances described in the Final
Prospectus.
The Trust will have the Certificates available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
5. Covenants.
(a) Covenants of the Note Issuer. The Note Issuer covenants
and agrees with the several Underwriters that:
(i) The Note Issuer will use its best efforts to
cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of the
Certificates, the Note Issuer will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Note Issuer has furnished you a copy for
your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Note Issuer
will cause the Final Prospectus, properly completed in a form
approved by you, and any supplement thereto to be filed with
the SEC pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Note Issuer will promptly advise the Representatives (i) when
the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the SEC pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the
Certificates, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request
by the SEC for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Note Issuer of any
notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Note
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Issuer will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to
the Certificates is required to be delivered under the Act,
any event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Note Issuer
promptly will (i) prepare and file with the SEC, subject to
the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or
omission or effect such compliance and (ii) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
(iii) As soon as practicable, the Note Issuer will
use its reasonable efforts to cause the Trust to make
generally available to the Certificateholders and the
Representatives an earnings statement or statements of the
Trust which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(iv) The Note Issuer will furnish to the
Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives
may reasonably request. The Note Issuer shall furnish or cause
to be furnished to the Representatives copies of all reports
on Form SR required by Rule 463 under the Act. The Note Issuer
will pay the expenses of printing or other production of all
documents relating to the offering.
(v) The Note Issuer will arrange for the
qualification of the Certificates for sale under the laws of
such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for
the distribution of the Certificates and will arrange for the
determination of the legality of the Certificates for purchase
by institutional investors; provided, however, that in no
event shall the Note Issuer be obligated to qualify to do
business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of
process in suits, other than those arising out of the offering
or sale of the Certificates, in any jurisdiction where it is
not now so subject.
(vi) Until 90 days after the date hereof, the Note
Issuer will not, without the written consent of the
Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering
of, any asset-backed securities of a trust or other special
purpose vehicle (other than the Notes and the Certificates).
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(vii) For a period from the date of this Agreement
until the retirement of the Certificates or until such time as
the Underwriters shall cease to maintain a secondary market in
the Certificates, whichever occurs first, the Note Issuer will
deliver to the Representatives 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, as
applicable, as soon as such statements and reports are
furnished to the Note Issuer or the Note Trustee.
(viii) So long as any of the Certificates are
outstanding, the Note Issuer will furnish to the
Representatives (i) as soon as available, a copy of each
report of the Note Issuer or the Trust filed with the SEC
under the Exchange Act, or mailed to Certificateholders, (ii)
a copy of any filings with the Massachusetts Department of
Transportation and Energy ("DTE") pursuant to the Financing
Order, including, but not limited to, any Advice Letters, and
(iii) from time to time, any information concerning the
Company, the Note Issuer or the Trust, as the Representatives
may reasonably request.
(ix) To the extent, if any, that any rating necessary
to satisfy the condition set forth in Section 6(r) of this
Agreement is conditioned upon the furnishing of documents or
the taking of other actions by the Note Issuer on or after the
Closing Date, the Note Issuer shall furnish such documents and
take such other actions.
(b) Covenants of the Company. The Company covenants and agrees
with the several Underwriters that, to the extent that the Note Issuer
has not already performed such act pursuant to Section 5(a):
(i) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. The
Company will use its best efforts to prevent the issuance by
the SEC of any stop order suspending the effectiveness of the
Registration Statement and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) The Company will cause the proceeds from the
sale of the Transition Property to be applied for the purposes
described in the Prospectus under the caption "Use of
Proceeds."
(iii) Until 90 days after the date hereof, the
Company will not, without the written consent of the
Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering
of, any asset-backed securities of a trust or other special
purpose vehicle (other than the Notes and the Certificates).
(iv) So long as any of the Certificates are
outstanding and the Company is the Servicer, the Company will
furnish to the Representatives (i) as soon as available, a
copy of each report of the Trust filed with the SEC under the
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Exchange Act, or mailed to Certificateholders, (ii) a copy of
any filings with the DTE pursuant to the Financing Order,
including, but not limited to, any Advice Letters, and (iii)
from time to time, any information concerning the Company, the
Note Issuer or the Trust, as the Representatives may
reasonably request.
(v) To the extent, if any, that any rating necessary
to satisfy the condition set forth in Section 6(r) of this
Agreement is conditioned upon the furnishing of documents or
the taking of other actions by the Company on or after the
Closing Date, the Company shall furnish such documents and
take such other actions.
(vi) If, at any time when a prospectus relating to
the Certificates is required to be delivered under the Act,
any event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company at the
Note Issuer's expense promptly will (i) prepare and file with
the SEC, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities
as you may reasonably request.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates shall be subject to
the accuracy of the representations and warranties on the part of the Note
Issuer and the Company contained herein as of the Execution Time and the Closing
Date and on the part of the Company contained in Article III of the Sale
Agreement and in Section 6.01 of the Servicing Agreement as of the Closing Date,
to the accuracy of the statements of the Note Issuer, the Company and the Trust
made in any certificates pursuant to the provisions hereof, to the performance
by the Note Issuer, the Company and the Trust of their obligations hereunder to
be performed on or prior to the Closing Date and to the following additional
conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM Eastern Standard Time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 PM Eastern Standard Time on such date, or
(ii) 12:00 Noon Eastern Standard Time on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 PM Eastern Standard Time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
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(b) The Representatives shall have received opinions of
counsel for the Company, portions of which may be delivered by Ropes &
Xxxx, outside counsel for the Company, portions of which may be
delivered by [ ], in-house counsel for the Company, and portions
of which may be delivered by Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel for the Company, each dated the Closing Date, in form
and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) the Company (a) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized
and (b) has all requisite corporate power and authority to own
its properties, conduct its business as presently conducted
and execute, deliver and perform its obligations under this
Agreement, the Sale Agreement and the Servicing Agreement;
(ii) the Sale Agreement and the Servicing Agreement
have been duly authorized, executed and delivered, and
constitute legal, valid and binding instruments enforceable
against the Company in accordance with their terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
or equitable principles affecting creditors' rights generally
from time to time in effect);
(iii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries of
a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) no consent, approval, authorization or order of
any court or governmental agency or body is required to be
obtained by the Company for the consummation of the
transactions contemplated herein, except such as have been
obtained under the Statute, the DTE Regulations (as defined in
Section 1.01 of the Servicing Agreement) and the Act and such
as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the
Certificates by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(vi) neither the execution and delivery of this
Agreement, the Sale Agreement, the Servicing Agreement, the
Administration Agreement nor the consummation of the
transactions contemplated by this Agreement, the Sale
Agreement, the Servicing Agreement or the Administration
Agreement nor the fulfillment of the terms of this Agreement,
the Sale Agreement, the Servicing Agreement
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Agreement or the Administration Agreement by the Company, will
(A) conflict with, result in any breach of any of the terms or
provisions of, or constitute (with or without notice or lapse
of time) a default under the articles of incorporation, bylaws
or other organizational documents of the Company, or conflict
with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, material agreement or other material
instrument filed as an Exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1999, (B)
result in the creation or imposition of any lien upon any
properties of the Company pursuant to the terms of any such
indenture, agreement or other instrument (other than as
contemplated by the Basic Documents and Section 1H(e) of the
Statute), or (C) violate any Massachusetts or federal law or
any order, rule or regulation applicable to the Company of any
Massachusetts or federal court or regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Company, or any of its
properties; and
(vii) upon the delivery of the fully executed Sale
Agreement to the Note Issuer and the payment of the purchase
price of the Transition Property by the Note Issuer to the
Seller pursuant to the Sale Agreement, then (A) the transfer
of the Transition Property by the Seller to the Note Issuer
pursuant to the Sale Agreement conveys the Seller's right,
title and interest in the Transition Property to the Note
Issuer and will be treated as an absolute transfer of all of
the Seller's right, title, and interest in the Transition
Property, other than for federal and state income tax
purposes, (B) such transfer of the Transition Property is
perfected, (C) such transfer has priority over any other
assignment of the Transition Property, and (D) the Transition
Property is free and clear of all liens created prior to its
transfer to the Note Issuer pursuant to the Sale Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than The
Commonwealth of Massachusetts or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received opinions of
counsel for the Note Issuer, portions of which may be delivered by
Ropes & Xxxx, outside counsel for the Note Issuer, and portions of
which may be delivered by [ ], Esq., in-house counsel for
the Note Issuer, and portions of which may be delivered by Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Note Issuer,
each dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) the Note Issuer has been duly formed and is
validly existing in good standing as a limited liability
company under the laws of the State of Delaware, with all
necessary limited liability company power and authority to
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execute, deliver and perform its obligations under this
Agreement, the Sale Agreement, the Servicing Agreement, the
Note Indenture, the Note Purchase Agreement, the
Administration Agreement, the Fee and Indemnity Agreement and
the Notes;
(ii) the Sale Agreement, the Servicing Agreement, the
Note Indenture, the Note Purchase Agreement, the
Administration Agreement and the Fee and Indemnity Agreement
have been duly authorized, executed and delivered, and
constitute legal, valid and binding instruments enforceable
against the Note Issuer in accordance with their terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws or equitable principles affecting creditors'
rights generally from time to time in effect); and the Notes
have been duly authorized and executed, and when authenticated
in accordance with the provisions of the Note Indenture and
delivered to and paid for by the Trust in accordance with the
terms of the Note Purchase Agreement, will constitute legal,
valid and binding obligations of the Note Issuer entitled to
the benefits of the Note Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws or equitable
principles affecting creditors' rights generally from time to
time in effect);
(iii) the Sale Agreement, the Servicing Agreement,
the Note Indenture, the Note Purchase Agreement, the
Administration Agreement, the Fee and Indemnity Agreement and
the Notes conform to the descriptions thereof contained in the
Final Prospectus;
(iv) the Note Indenture has been duly qualified under
the Trust Indenture Act;
(v) to the knowledge of such counsel, after having
made inquiry of officers of the Note Issuer, but without
having made any other investigation, there is no pending or
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Note Issuer, or challenging the Notes, the
Financing Order or the collection of the RTC Charge or the use
and enjoyment of transition property under the Statute of a
character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document relating to the Note Issuer, the Notes or the
Financing Order of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus under the headings "Energy Deregulation and New
Massachusetts Market Structure" (to the extent the Statute is
described), "Description of the Transition Property," "The
Note Issuer," "Servicing" (to the extent the Servicing
Agreement is described) and "Description of the Notes" fairly
summarize the matters described therein;
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(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) have been
made in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that the Final Prospectus as of its date and the
Closing Date includes any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion);
(vii) this Agreement has been duly authorized,
executed and delivered by the Note Issuer;
(viii) no consent, approval, authorization or order
of any Massachusetts or federal court or governmental agency
or body is required to be obtained by the Note Issuer for the
issuance of the Notes or the consummation by the Note Issuer
of transactions contemplated herein, except such as have been
obtained under the Statute, the DTE Regulations and the Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Certificates by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(ix) neither the execution and delivery of this
Agreement, Sale Agreement, the Servicing Agreement, the Note
Indenture, the Note Purchase Agreement, the Administration
Agreement or the Fee and Indemnity Agreement, nor the issue
and sale of the Notes, nor the consummation of the
transactions contemplated by this Agreement, Sale Agreement,
the Servicing Agreement, the Note Indenture, the Note Purchase
Agreement, the Administration Agreement or the Fee and
Indemnity Agreement, nor the fulfillment of the terms of this
Agreement, Sale Agreement, the Servicing Agreement, the Note
Indenture, the Note Purchase Agreement, the Administration
Agreement or the Fee and Indemnity Agreement by the Note
Issuer, will (A) conflict with, result in any breach of any of
the terms or provisions of, or constitute (with or without
notice or lapse of time) a default under the Limited Liability
Company Agreement of the Note Issuer, or conflict with or
breach any of the material terms or provisions of,
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or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement or other instrument
known to such counsel and to which the Note Issuer is a party
or by which the Note Issuer is bound, (B) result in the
creation or imposition of any lien upon any properties of the
Note Issuer pursuant to the terms of any such indenture,
agreement or other instrument (other than as contemplated by
the Basic Documents and Section 1H(e) of the Statute), or (C)
violate any Massachusetts or federal law or any order, rule or
regulation applicable to the Note Issuer of any Massachusetts
or federal court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Note Issuer, or any of its
properties;
(x) Upon the giving of value by the Note Trustee to
the Note Issuer with respect to the Collateral, (I) the Note
Indenture creates in favor of the Note Trustee a security
interest in the rights of the Note Issuer in the Collateral,
(II) such security interest is valid against the Note Issuer
(subject to the rights of any third parties holding security
interests in such Collateral perfected in the manner described
in Sections 1H(d) and (e) of the Statute), and has attached
and (III) such security interest is perfected; and
(xi) the Note Issuer is not an "investment company"
or under the "control" of an "investment company" as such
terms are defined under the Investment Company Act of 1940, as
amended.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than The
Commonwealth of Massachusetts or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Note Issuer and public officials. References to the
Final Prospectus in this paragraph (c) include any supplements thereto
at the Closing Date.
(d) The Representatives shall have received opinions of
counsel for the Trust and the Agencies, portions of which may be
delivered by Xxxxxx & Dodge LLP, special counsel for the Trust and the
Agencies, and portions of which may be delivered by Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel for the Trust, each dated the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) the Declaration of Trust, the Certificate
Indenture and the Certificates conform in all material
respects with the descriptions thereof contained in the Final
Prospectus under the headings "The Trust" and "Description of
the Certificates" (other than information regarding DTC, CEDEL
and Euroclear, as to which we express no opinion) and in the
Prospectus Summary under the headings "The Certificates,"
"Issuer of Certificates," "Certificate Trustee," "Interest"
and "Principal";
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(ii) the Trust has been duly created and is validly
existing in good standing as a business trust under Delaware
Business Trust Act, 12 Del.C. Section 3801, et seq.;
(iii) each of the Agencies is a duly created and
validly existing body politic and corporate and a public
instrumentality of The Commonwealth of Massachusetts with the
necessary power, authority and legal right to execute, deliver
and perform all of its obligations under the Declaration of
Trust and the issuance resolution of each Agency;
(iv) the Declaration of Trust has been duly
authorized, executed and delivered by the Agencies and,
assuming the due authorization, execution and delivery thereof
by the Delaware Trustee, constitutes a legal, valid and
binding instrument enforceable against the Agencies in
accordance with its terms, except as enforcement thereof may
be subject to or limited by bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other
similar laws relating to or affecting the enforcement of
creditors' rights generally, and except as limited by general
equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(v) the Certificate Indenture has been duly
authorized, executed and delivered by the Delaware Trustee on
behalf of the Trust and, assuming the due authorization,
execution and delivery thereof by the Certificate Trustee,
constitutes a legal, valid and binding instrument, enforceable
against the Trust in accordance with its terms, except as
enforcement thereof may be subject to or limited by
bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally, and except as
limited by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or
at law);
(vi) the Certificates have been duly authorized and
executed and, when authenticated in accordance with the
provisions of the Certificate Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, (A)
will be duly issued in conformity with the Statute, (B) will
constitute legal and valid obligations of the Trust, (C) will
be entitled to the benefits of the Certificate Indenture, (D)
will constitute "electric rate reduction bonds" under Section
1H of the Statute and (E) will be entitled to the benefits and
protections afforded under the Statute;
(vii) the Note Purchase Agreement has been duly
authorized, executed and delivered by the Delaware Trustee on
behalf of the Trust and, assuming due authorization, execution
and delivery thereof by BEC Funding LLC, constitutes a legal,
valid and binding instrument, enforceable against the Trust in
accordance with its terms, except as enforcement thereof may
be subject to or limited by bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other
similar laws relating to or affecting the enforcement of
creditors' rights
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generally, and except as limited by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(viii) the issuance resolutions of the Agencies have
been duly and validly adopted by the Agencies in compliance
with all applicable laws and are in full force and effect;
(ix) pursuant to the issuance resolutions of the
Agencies, the Agencies have validly authorized and approved
the formation of the Trust, the issuance of the Certificates
and all other transactions and actions contemplated by the
Basic Documents or required to be taken by the Agencies as
conditions precedent to the issuance of the Certificates; such
authorizations and approvals are valid and in full force and
effect;
(x) the Certificate Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended;
(xi) the statements included in the Final Prospectus
under the headings "The Trust," "The Agencies" and
"Description of the Certificates" fairly summarize the matters
described therein (other than matters related to DTC, CEDEL or
Euroclear, as to which we express no opinion) and the
statements included or incorporated in the Final Prospectus
under the headings "Federal Income Tax Consequences," "State
Taxation" and "ERISA Considerations," and under the following
subheadings of the heading "Risk Factors": "Legislative
actions," "Court decisions," "Bankruptcy and Creditors' Rights
Issues" and "Possible federal preemption of the statute may
prohibit recovery of the RTC charge," to the extent that they
constitute matters of Massachusetts or federal law or legal
conclusions with respect thereto, provide a fair and accurate
summary of such law or conclusions;
(xii) to the actual knowledge of the lawyers in such
counsel's firm responsible for preparing such opinion after
consultation with such other lawyers in such firm and review
of such documents in such counsel's possession as such counsel
considers appropriate, but without examination of the docket
of any court or agency or any other special investigation,
there is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or
any arbitrator challenging the validity or enforceability of
the issuance resolutions of the Agencies or actions taken by
the Agencies in connection therewith or otherwise involving
the Agencies or relating to the Certificates or the Trust of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(xiii) to the knowledge of such counsel, the
Registration Statement and the Final Prospectus (other than
(A) the financial statements and other financial, numerical,
statistical and quantitative information contained therein,
(B) information contained under the captions "The Note Issuer"
and "The Seller and Servicer," (C) information regarding DTC,
CEDEL and Euroclear and (D) the
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statement of eligibility of the Trustee on Form T-l and the
documents incorporated by reference therein, as to which we
make no statement and express no opinion) comply as to form in
all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder, and such counsel has no reason to
believe that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that the Final Prospectus as of its date and the Closing Date
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (other than (A) the financial
statements and other financial, numerical, statistical and
quantitative information contained therein, (B) information
contained under the captions "The Note Issuer" and "The Seller
and Servicer," (C) information regarding DTC, CEDEL and
Euroclear and (D) the statement of eligibility of the Trustee
on Form T-l and the documents incorporated by reference
therein, as to which we make no statement and express no
opinion);
(xiv) this Agreement has been duly authorized,
executed and delivered by the Delaware Trustee on behalf of
the Trust;
(xv) no consent, approval, authorization or order of
any court or governmental agency or body is required to be
obtained by the Delaware Trustee, the Certificate Trustee or
the Trust under Massachusetts or federal law for the issuance
of the Certificates by the Trust, except such as have been
obtained under the Statute, the DTE Regulations and the Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Certificates by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(xvi) neither the execution and delivery of this
Agreement or the Certificate Indenture, nor the issuance and
sale of the Certificates, nor the consummation of the
transactions contemplated by this Agreement or the Certificate
Indenture, nor the fulfillment of the terms of this Agreement
or the Certificate Indenture by the Trust will (A) conflict
with, result in any breach of any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a
default under the Certificate of Trust or Declaration of Trust
or other procedural documents of the Trust, or conflict with
or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, agreement or other instrument known to
such counsel and to which the Trust is a party or by which the
Trust is bound, (B) result in the creation or imposition of
any lien upon any properties of the Trust pursuant to the
terms of any such indenture, agreement or other instrument
(except as contemplated by the Basic Documents or created
pursuant to the Statute), or (C) violate any Massachusetts or
federal law, order, rule or regulation applicable to the Trust
of any Massachusetts or federal court or of any federal or
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Massachusetts state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Trust, or any of its properties;
(xvii) neither the execution and delivery of the
Declaration of Trust, nor the consummation of the transactions
contemplated by the Declaration of Trust, nor the fulfillment
of the terms of the Declaration of Trust by the Agencies will
(A) conflict with, result in any breach of any of the terms or
provisions of, or constitute (with or without notice or lapse
of time) a default under the bylaws or procedural documents of
the Agencies, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice
or lapse of time) a default under, any indenture, agreement or
other instrument known to such counsel and to which the
Agencies are parties or by which the Agencies are bound, (B)
result in the creation or imposition of any lien upon any
properties of the Agencies pursuant to the terms of any such
indenture, agreement or other instrument (except as
contemplated by the Basic Documents or created pursuant to the
Statute), or (C) violate any Massachusetts or federal law,
order, rule or regulation applicable to the Agencies of any
Massachusetts or federal court or of any federal or
Massachusetts state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over
the Agencies, or any of their properties; and
(xviii) the Trust is not an "investment company" or
under the "control" of an "investment company" as such terms
are defined under the Investment Company Act of 1940, as
amended.
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than The
Commonwealth of Massachusetts or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters, (B) as to matters
relating to actions taken by the Company, the Note Issuer, the Note
Trustee, the DTE and the Servicer, assume such matters which are the
subject of opinions rendered by counsel to such parties hereunder or
under the Basic Documents, and (C) rely as to matters of fact, to the
extent deemed proper, on certificates of authorized representatives of
the Trust, the Agencies and public officials. References to the Final
Prospectus in this paragraph (d) include any supplements thereto at the
Closing Date.
(e) The Representatives shall have received an opinion of
Xxxxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, counsel to the Note Trustee, dated
the Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) the Note Trustee is validly existing as a state
banking institution in good standing under the laws of the
State of New York;
(ii) the Note Indenture has been duly authorized,
executed and delivered, and constitutes a legal, valid and
binding instrument enforceable against the Note Trustee in
accordance with its terms (subject, as to enforcement
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of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws or equitable
principles affecting creditors' rights generally from time to
time in effect); and
(iii) the Notes have been duly authenticated by the
Note Trustee.
(f) The Representatives shall have received an opinion of
Xxxxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, counsel to the Certificate Trustee,
dated the Closing Date, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) the Certificate Trustee is validly existing as a
state banking institution in good standing under the laws of
the State of New York;
(ii) the Certificate Indenture has been duly
authorized, executed and delivered by the Certificate Trustee
and constitutes a legal, valid and binding instrument
enforceable against the Certificate Trustee in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws or equitable principles affecting
creditors' rights generally from time to time in effect); and
(iii) the Certificate Trustee has duly authenticated
and delivered the Certificates issued on the Closing Date on
behalf of the Trust;
(g) The Representatives shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Delaware Trustee, dated
the Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) the Delaware Trustee is duly incorporated and is
validly existing as a banking corporation in good standing
under the laws of the State of Delaware, with full corporate
trust power and authority to enter into and perform its
obligations under the Declaration of Trust, and under the Note
Purchase Agreement and the Certificate Indenture on behalf of
the Trust; and
(ii) the Declaration of Trust, the Note Purchase
Agreement (on behalf of the Trust) and this Agreement (on
behalf of the Trust) have been duly authorized, executed and
delivered by the Delaware Trustee, and constitute legal, valid
and binding instruments enforceable against the Delaware
Trustee in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
or equitable principles affecting creditors' rights generally
from time to time in effect);
(iii) the Delaware Trustee has duly executed the
Certificates issued on the Closing Date on behalf of the
Trust;
(h) The Representatives shall have received from Xxxxx & Xxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Notes and
the Certificates, the Note Indenture, the Certificate
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Indenture, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company, the Note
Issuer and the Trust shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Representatives shall have received a certificate of
the Note Issuer, signed by an officer of the Note Issuer, dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Note
Issuer in this Agreement and in the Note Indenture are true
and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date, and
the Note Issuer has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Note Issuer's
knowledge, threatened; and
(iii) since the dates as of which information is
given in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in (x) the
condition (financial or other), earnings, business or
properties of the Note Issuer, whether or not arising from
transactions in the ordinary course of business, or (y) the
Transition Property, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(j) The Representatives shall have received a certificate of
the Company, signed by an executive officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement, the Sale Agreement and the Servicing
Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the dates as of which information is
given in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in (x) the
condition (financial or other), earnings, business or
properties of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the
ordinary course of business, or (y) the Transition
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Property, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(k) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives (i) a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and the Note Issuer)
set forth in the Registration Statement and the Final Prospectus,
including information specified by the Underwriters and set forth under
the captions "Prospectus Summary," "Description of the Transition
Property," "The Seller and Servicer," "Description of the Notes" and
"Description of the Certificates" in the Final Prospectus, agrees with
the accounting records of the Company and the Note Issuer, excluding
any questions of legal interpretation, and (ii) the opinion or
certificate, dated as of the Closing Date, in form and substance
satisfactory to the Representatives, satisfying the requirements of
Section 2.10(7) of the Note Indenture.
References to the Final Prospectus in this paragraph (k)
include any supplement thereto at the date of the letter.
In addition, at the Execution Time, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter or letters, dated
as of the Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been any
change, or any development involving a prospective change, in or
affecting either (i) the business, properties or financial condition of
the Company or the Note Issuer or (ii) the Transition Property, the
Notes, the Certificates, the Financing Order or the Statute, the effect
of which is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Notes or the Certificates as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(m) The Representatives shall have received on the Closing
Date an opinion letter or letters of Ropes & Xxxx, counsel to the
Company and the Note Issuer, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, (i) with
respect to the characterization of the transfer of the Transition
Property by the Company to the Note Issuer as a "true sale" for
bankruptcy purposes and (ii) to the effect that a court would not order
the substantive consolidation of the assets and liabilities of
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the Note Issuer with those of the Company in the event of a bankruptcy,
reorganization or other insolvency proceeding involving the Company.
(n) The Representatives shall have received on the Closing
Date an opinion letter of Xxxxxx & Dodge LLP, special counsel to the
Agencies and the Trust, dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that a
court would not order the substantive consolidation of the assets and
liabilities of the Agencies with those of the Trust.
(o) The Representatives shall have received on the Closing
Date an opinion letter or letters of counsel for the Company, portions
of which may be delivered by Ropes & Xxxx, outside counsel for the
Company, and portions of which may be delivered by [ ], in-house
counsel for the Company, each dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that: (i) the Financing Order has been duly authorized and adopted by
the DTE and the Financing Order, giving effect to the Issuance Advice
Letter, is in full force and effect; in reliance on the opinion of
Xxxxxx & Dodge LLP that the Certificates are "electric rate reduction
bonds" under Section 1H(a) of the Statute, as of the issuance of the
Certificates, the Certificates are entitled to the protections provided
in Sections 1H(b)(3) and 1H(c)(4) of the Statute; (ii) the Financing
Order is no longer subject to appeal by any person in state courts of
The Commonwealth of Massachusetts; and (iii) the Servicer is authorized
to file periodic RTC Charge adjustments to the extent necessary to
ensure the timely recovery of revenues sufficient to provide for the
payment of an amount equal to the sum of the periodic RRB payment
requirements for the upcoming year, which includes indemnity
obligations of the Note Issuer for its officers and directors, trustee
fees, liabilities of the Trust and liabilities of the Note Issuer to
the Underwriters under this Agreement.
(p) The Representatives shall have received on the Closing
Date an opinion letter or letters of Xxxxxx & Dodge LLP, special
counsel for the Agencies and the Trust, dated the Closing Date, in form
and substance reasonably satisfactory to the Representatives, to the
effect that any state action (whether by legislative, DTE, citizen
initiative or otherwise) to revoke or limit the Financing Order, the
Issuance Advice Letter, the Transition Property or the RTC Charge in a
manner which would substantially impair the rights of
Certificateholders would be subject to a successful constitutional
contracts clause defense.
(q) The Representatives shall have received on the Closing
Date an opinion letter or letters of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel to the Note Issuer, dated the Closing Date, in
form and substance reasonably satisfactory to the Representatives, to
the effect that: (i) if properly presented to a Delaware court, a
Delaware court applying Delaware law, would conclude that (x) in order
for a person to file a voluntary bankruptcy petition on behalf of the
Note Issuer, the affirmative vote of the Note Issuer's Sole Member and
the affirmative vote of all of the Directors (including the Independent
Directors), as provided in Section 2.07(ii) of the LLC Agreement of the
Note Issuer, is required, and (y) such provision, contained in Section
2.07(ii) of the LLC Agreement, that requires the affirmative vote of
the Note Issuer's Sole Member and the
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affirmative vote of all of the Directors (including the Independent
Directors) in order for a person to file a voluntary bankruptcy
petition on behalf of the Note Issuer, constitutes a legal, valid and
binding agreement of the Sole Member and is enforceable against the
Sole Member, in accordance with its terms; and (ii) the LLC Agreement
constitutes a legal, valid and binding agreement of the Sole Member
thereunder, and is enforceable against the Sole Member in accordance
with its terms.
(r) The Notes and the Certificates shall have been rated in
the highest long-term rating category by each of the Rating Agencies.
(s) On or prior to the Closing Date, the Note Issuer shall
have delivered to the Representatives evidence, in form and substance
reasonably satisfactory to the Representatives, that appropriate
filings have been or are being made in accordance with the Statute and
other applicable law reflecting the grant of a security interest by the
Note Issuer in the Collateral to the Note Trustee.
(t) On or prior to the Closing Date, the Note Issuer shall
have delivered to the Representatives evidence, in form and substance
satisfactory to the Representatives, of the DTE's issuance of the
Financing Order relating to the Transition Property and the Issuance
Advice Letter.
(u) Prior to the Closing Date, the Note Issuer, the Company
and the Trust shall have furnished to the Representatives such further
information, certificates, opinions and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Note Issuer
and the Trust in writing or by telephone or electronic mail confirmed in
writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Ropes & Xxxx, Boston, Massachusetts, on the
Closing Date.
7. Expenses. Upon the sale of the Certificates, the Note
Issuer will pay or cause to be paid all costs and expenses incident to the
performance of the obligations of the Company, the Note Issuer and the Trust
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Certificates
to the Underwriters, all fees, disbursements and expenses of the Company's, the
Note Issuer's and the Trust's counsel and accountants, all costs and expenses
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto), any preliminary prospectus, the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto, all costs and expenses incurred in
connection with blue sky qualifications, examining the legality of the
Certificates for the investment and the
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rating of the Certificates, all costs and expenses of the Note Trustee, the
Certificate Trustee and the Delaware Trustee, all costs and expenses incurred in
the acquisition or preparation of documents required to be delivered by the
Company, the Note Issuer or the Trust in connection with the closing of the
transactions contemplated hereby, all costs and expenses required in connection
with any filing with the National Association of Securities Dealers in
connection with the transactions contemplated hereby, and all costs and expenses
of the printing and distribution of all documents in connection with the
Certificates. Except as provided in this Section 7 and Section 8 hereof, the
Underwriters will pay their own costs and expenses, including any advertising
expenses in connection with any offer they may make of the Certificates, but
excluding fees and expenses of counsel to the Underwriters in connection with
the transactions contemplated hereby, which fees and expenses of counsel shall
be included in, and become part of the Underwriters' fees and expenses to be
paid by the Note Issuer.
If the sale of the Certificates provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the part
of the Company, the Note Issuer or the Trust to perform any agreement herein or
comply with any provision hereof other than by reason of a default (including
under Section 9) by any of the Underwriters, the Company and the Note Issuer
will, jointly and severally, reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of the Certificates.
8. Indemnification and Contribution.
(a) The Company and the Note Issuer will, jointly and
severally, indemnify and hold harmless each Underwriter, the Trust and
the Agencies, the directors, officers, members, employees and agents of
each Underwriter, the Trust and the Agencies and each person who
controls any Underwriter, the Trust and the Agencies within the meaning
of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Certificates as
originally filed or in any amendment thereof, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, any
untrue statement or alleged untrue statement of a material fact
contained in the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that neither the Company nor the Note Issuer
will be liable in any such case to the extent that
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any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Note Issuer or the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company and the Note Issuer may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, the Note Issuer, the Trust and the Agencies, each
of their directors, each of their officers (if any) who signs the
Registration Statement, and each person who controls the Company or the
Note Issuer within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Note Issuer to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Note Issuer
or the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Note Issuer, the Company and the Agencies acknowledge that the
statements set forth in the last paragraph of the cover page, under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
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 party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
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available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, 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
or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Note
Issuer and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Note
Issuer and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received
by the Company, Note Issuer and the Underwriters, respectively, from
the offering of the Certificates and the Notes; provided, however, that
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
Certificates) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Certificates
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company, the Note Issuer and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, the Note Issuer and of the
Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Note Issuer shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) of the Certificates (which shall be equal to the net proceeds
from the sale of the Notes to the Trust (before deducting expenses)),
and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company,
the Note Issuer or the Underwriters. The Company, the Note Issuer and
the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall
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have the same rights to contribution as such Underwriter, and each
person who controls the Note Issuer or the Company within the meaning
of either the Act or the Exchange Act, each officer of the Note Issuer
or the Company who shall have signed the Registration Statement and
each director of the Note Issuer or the Company shall have the same
rights to contribution as the Note Issuer or the Company, subject in
each case to the applicable terms and conditions of this paragraph. The
Underwriters' obligations in this paragraph to contribute are several
in proportion to their respective underwriting obligations and not
joint.
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder the Representatives may
in their discretion arrange for the Underwriters or another party or other
parties to purchase such Certificates on the terms contained herein. If within
36 hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Certificates, the nondefaulting Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Certificates set forth opposite the names of all
the remaining Underwriters) the Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Certificates which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Certificates set forth in Schedule II hereto, the nondefaulting
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Certificates, and if such nondefaulting
Underwriters do not purchase all the Certificates, this Agreement will terminate
without liability to any nondefaulting Underwriter, the Note Issuer or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the Note
Issuer and the Company and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company, the Note Issuer and the Agencies prior to delivery of and
payment for the Certificates, if prior to such time there shall have occurred
(i) any change, or any development involving a prospective change, in or
affecting (A) the business, properties or financial condition of the Company or
the Note Issuer, (B) the Transition Property, the Notes, the Certificates, the
Financing Order or the Statute, the effect of which, in the judgment of the
Representatives, materially impairs the investment quality of the Certificates
or makes it impractical or inadvisable to market the Certificates; (ii) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (iii) a suspension or material limitation in trading in the
securities of the Company; (iv) a general moratorium on commercial banking
activities shall have been declared either by Federal, New York state or
Massachusetts state authorities or (v) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war the effect of which on financial markets is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Certificates as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
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11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, the Note Issuer or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or of the Company, the Note Issuer or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Certificates. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder 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, and if sent to
the Representatives, to them at the address specified in Schedule I hereto; and
if sent to the Company, to it at Boston Edison Company, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Manager, Corporate Finance; and if sent
to the Note Issuer, to it at BEC Funding LLC, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: President; and if sent to the Agencies,
to each at Massachusetts Development Finance Agency, 00 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: General Counsel, and Massachusetts Health and
Educational Facilities Authority, 00 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: General Counsel. The parties hereto, by notice
to the others, may designate additional or different addresses for subsequent
communications.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
16. Miscellaneous. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
SEC's office in Washington, D.C. is open for business.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Note Issuer and the several Underwriters.
Very truly yours,
BOSTON EDISON COMPANY
By: ______________________________________
Name:
Title:
BEC FUNDING LLC
By: ______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
on behalf of each of the Underwriters
Xxxxxx Brothers Inc.
By: ______________________________________
(Xxxxxx Brothers Inc.)
Xxxxxxx, Xxxxx & Co.
By: ______________________________________
(Xxxxxxx, Sachs & Co.)
S-1
30
SCHEDULE I TO THE
UNDERWRITING AGREEMENT
Underwriting Agreement dated __________, 1999
Registration Statement No. 333-74671
Representative(s):
Xxxxxx Brothers Inc.
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Title: Massachusetts RRB Special Purpose Trust BEC-1
$ [ ] Rate Reduction Certificates
Principal amount, Price to Public, Underwriting Discounts and
Commissions and Proceeds to Trust:
Underwriting
Total Principal Price to Discounts and Proceeds to
Amount of Class Public Commissions Trust
--------------- -------- ------------- -----------
Per Class A-1
Certificate $ % % %
Per Class A-2
Certificate $ % % %
Per Class A-3
Certificate $ % % %
Per Class A-4
Certificate $ % % %
Per Class A-5
Certificate $ % % %
Per Class A-6
Certificate $ % % %
Per Class A-7
Certificate $ % % %
--------------- -------- ------------- -----------
Total $ $ $ $
31
Plus the Underwriters will be reimbursed by the Note Issuer for:
$ [ ] of expenses,
consisting of $ [ ]
of out-of-pocket expenses and
$ [ ] for Underwriters Counsel
Original Issue Discount (if any): $ [ ]
Redemption provisions: Optional Redemption and Mandatory
Redemption as set forth in Article X of
the Note Indenture
Other provisions:
Closing Date, Time and Location: [ ], 1999
9:00 a.m., Eastern Standard Time
Boston, Massachusetts
Type of Offering: Delayed Offering
32
SCHEDULE II TO THE
UNDERWRITING AGREEMENT
Principal Amount of Certificates to be Purchased
--------------------------------------------------------------------------------------------------------
Class A-1 Class A-2 Class A-3 Class A-4 Class A-5 Class A-6 Class A-7
Underwriters Certificates Certificates Certificates Certificates Certificates Certificates Certificates Total
---------------------- ------------ ------------ ------------ ------------ ------------ ------------ ------------ -----
Xxxxxx Brothers Inc. $ $ $ $ $ $ $ $
Xxxxxxx, Xxxxx & Co. $ $ $ $ $ $ $ $
. . . . $ $ $ $ $ $ $ $
Total................. $ $ $ $ $ $ $ $
============ ============ ============ ============ ============ ============ ============ =====
33
APPENDIX A TO THE
UNDERWRITING AGREEMENT
CERTIFICATE OF THE AGENCIES PURSUANT
TO FINANCING ORDER APPROVING FINAL TERMS AND
CONDITIONS OF BEC FUNDING LLC NOTES AND MASSACHUSETTS
RRB SPECIAL PURPOSE TRUST BEC-1 RATE REDUCTION CERTIFICATES
Pursuant to order number 24 of the Financing Order, the
Massachusetts Development Finance Agency and the Massachusetts Health and
Educational Facilities Authority (collectively, the "Agencies"), hereby approve
the final terms and conditions of the BEC Funding LLC Notes (the "Notes") and
the Massachusetts RRB Special Purpose Trust BEC-1 Rate Reduction Certificates
(the "Certificates"), as set forth in the underwriting agreement dated as of
July [ ], 1999 by and among BEC Funding LLC, Boston Edison Company and Xxxxxx
Brothers Inc. and Xxxxxxx, Xxxxx & Co., as representatives (the
"Representatives") of the Underwriters named therein (the "Underwriting
Agreement").
In furtherance of this approval, the Agencies shall cause the
Massachusetts RRB Special Purpose Trust BEC-1 to be formed as a Delaware
business trust (the "Trust") prior to the Closing Date, and to issue the
Certificates and otherwise comply with the terms and conditions of the
Underwriting Agreement.
BEC Funding LLC, Boston Edison Company and the Representatives are
entitled to rely on this certificate as if this certificate were a part of, and
the Agencies were parties to, the Underwriting Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Underwriting Agreement.
MASSACHUSETTS DEVELOPMENT FINANCE AGENCY
By: ____________________________________
Name:
Title:
MASSACHUSETTS HEALTH AND EDUCATION
FACILITIES AUTHORITY
By: ____________________________________
Name:
Title:
