WMECO FUNDING LLC,
as Note Issuer
and
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1,
as Certificate Issuer
_______________________________
NOTE PURCHASE AGREEMENT
Dated as of May 17, 2001
_______________________________
NOTE PURCHASE AGREEMENT (this "Agreement") dated as of May 17, 2001,
between WMECO FUNDING LLC, a Delaware limited liability company (the "Note
Issuer"), and MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1, a Delaware
business trust (the "Certificate Issuer ") formed under the Declaration of
Trust.
RECITALS
A. Capitalized terms used herein without definition shall have the
meanings ascribed to them in that certain Note Indenture (the "Note
Indenture"), dated as of May 17, 2001, between Note Issuer and The Bank of
New York, a New York banking corporation, as trustee (the "Note Trustee"),
which is incorporated herein by this reference.
B. On the Issuance Date, and on the terms set forth herein, the Note
Issuer has agreed to sell to the Certificate Issuer and the Certificate
Issuer has agreed to purchase from the Note Issuer $155,000,000 in principal
amount of WMECO Funding LLC Notes (the "Notes"), issued pursuant to the Note
Indenture.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Note Issuer and the Certificate Issuer agree as follows:
1. Sale Of Notes
a. Authorization of Notes.
On or before the Issuance Date, the Note Issuer shall have caused to be
authorized pursuant to the Note Indenture the issuance of the Notes in such
classes and principal amounts as set forth in Schedule 1(a) attached hereto
and incorporated herein by this reference.
b. Issuance and Purchase.
On the basis of the representations, warranties and covenants contained
in this Agreement and in the Note Indenture (collectively, the "Note Purchase
Documents"), and subject to the terms and conditions of the Note Purchase
Documents, the Note Issuer agrees to issue and sell to the Certificate
Issuer, and the Certificate Issuer agrees to purchase from the Note Issuer,
the Notes set forth in Schedule 1(a) hereto. The purchase price of each
class of Notes is set forth in Schedule 1(a) attached hereto, and the
aggregate purchase price of the Notes shall be an amount equal to the
proceeds net of underwriting discounts and commissions to the Certificate
Issuer set forth in Schedule I to the Underwriting Agreement dated as of May
14, 2001 (the "Underwriting Agreement"), among Western Massachusetts Electric
Company, the Note Issuer and the underwriters named therein, for whom Xxxxxx
Brothers Inc. and Xxxxxxx Xxxxx Barney Inc. are acting as representatives.
c. Delivery.
Delivery of, and payment of the purchase price for the Notes shall be
made by federal wire transfer of immediately available funds as early as
possible after 9:00 a.m. (E.S.T.) on the Issuance Date to an account
designated by the Note Issuer not later than the Business Day prior to the
Issuance Date.
2. Conditions Precedent
The obligations of the Certificate Issuer to purchase the Notes under
this Agreement are subject to the satisfaction of each of the following
conditions:
a. Representations and Warranties. All of the representations and
warranties of the Note Issuer contained in this Agreement shall be true and
correct in all material respects on the Issuance Date with the same force and
effect as if made on and as of the Issuance Date.
b. Ratings. Neither the Notes nor the Certificates shall have
received a lower rating by any Rating Agency than that on which the Notes or
the Certificates, respectively, were marketed.
c. Officer's Certificate. The Certificate Trustee, on behalf of the
Certificate Issuer, shall have received on the Issuance Date an Officer's
Certificate dated the Issuance Date confirming the matters set forth in
Sections 2(a) and 2(b).
d. Note Indenture. The Certificate Trustee, on behalf of the
Certificate Issuer, shall have received a copy of the executed Note Indenture
(certified by an Authorized Officer of the Note Issuer) which shall have been
entered into by the Note Issuer and the Note Trustee.
e. Note Issuer Performance. The Note Issuer shall not have failed on
or prior to the Issuance Date to perform or comply in any material respect
with any of the agreements herein contained and required to be performed or
complied with by the Note Issuer on or prior to the Issuance Date.
3. Representations And Warranties
To induce the Certificate Issuer to enter into this Agreement and to
purchase the Notes, the Note Issuer represents and warrants to the
Certificate Issuer on the date of this Agreement that the following
statements are true and correct:
a. Legal Existence, etc. The Note Issuer has been duly formed and is
validly existing and in good standing as a limited liability company under
the laws of the State of Delaware and has the limited liability power and
authority to carry on its business as described in the Registration Statement
covering the Notes (the "Registration Statement") and to own its properties,
and is registered to transact business in The Commonwealth of Massachusetts.
b. Due Authorization. This Agreement has been duly authorized,
executed and delivered by the Note Issuer.
c. Note Indenture. The Note Indenture has been duly authorized by the
Note Issuer and, on the Issuance Date, will have been validly executed and
delivered by the Note Issuer. When the Note Indenture has been duly executed
and delivered by the Note Issuer, the Note Indenture will be a valid and
binding agreement of the Note Issuer, enforceable against the Note Issuer in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent
transfer and other laws relating to or affecting creditors' rights generally
and (ii) the availability of equitable remedies may be limited by equitable
principles of general applicability. On the Issuance Date, the Note
Indenture will conform in all material respects to the requirements of the
Trust Indenture Act, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
d. Notes. The Notes have been duly authorized and, on the Issuance
Date, will have been validly executed and delivered by the Note Issuer. When
the Notes have been issued, executed and authenticated in accordance with the
provisions of the Note Indenture and delivered to and paid for by the
Certificate Issuer in accordance with the terms of this Agreement, the Notes
will be entitled to the benefits of the Note Indenture and will be valid and
binding obligations of the Note Issuer, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization, fraudulent transfer and other laws
relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
e. No Default. No Default or Event of Default under the Note
Indenture would occur as a result of the sale of the Notes pursuant to the
terms hereof.
f. No Consents; No Conflicts. The execution, delivery and performance
of this Agreement and the other Basic Documents by the Note Issuer,
compliance by the Note Issuer with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not
(i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
has been obtained or may be required under the laws of The Commonwealth of
Massachusetts, the Statute, the Securities Act, the Public Utilities Holding
Company Act of 1935, as amended (the "1935 Act") or the securities or blue
sky laws of the various states), (ii) conflict with or constitute a material
breach of any of the terms or provisions of, or a default under, the limited
liability company agreement of the Note Issuer, (iii) violate or conflict in
any material respect with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over the Note Issuer or its property, (iv) result in the
imposition or creation of a lien under, any agreement or instrument to which
the Note Issuer is a party or by which the Note Issuer or its respective
property is bound, except as may be created or imposed under the Basic
Documents and any statutory lien under Section 1H(e) of the Statute.
g. No Proceedings. To the best knowledge of the Note Issuer, there
are no legal or governmental proceedings pending or threatened to which the
Note Issuer is or reasonably could be a party or to which any of its property
is or reasonably could be subject, which might result, singly or in the
aggregate, in a material adverse effect on the enforceability of the Notes.
h. Investment Company. The Note Issuer is not and, after giving
effect to the offering and sale of the Notes and the application of the net
proceeds thereof as described in the Registration Statement, will not be, an
"investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
i. 0000 Xxx. The Note Issuer is not and, after giving effect to the
offering and sale of the Notes and the application of the net proceeds
thereof as described in the Registration Statement, will not be, a "holding
company," as such term is defined in the 1935 Act.
j. Margin Rules. The Note Issuer has not taken any action that might
cause this Agreement or the issuance or sale of the Notes to violate
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
k. No Material Adverse Change. Since the date as of which information
is given in the Registration Statement and other than as set forth in the
Registration Statement (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change in the assets, business, management or operations of
the Note Issuer and (ii) other than the Notes and as contemplated by the
Basic Documents, the Note Issuer has not incurred any material liability or
obligation, direct or contingent.
4. Covenants
The Note Issuer covenants and agrees that, until payment in full of the
Notes, unless the Delaware Trustee, on behalf of the Certificate Issuer,
shall otherwise give prior written consent, the Note Issuer shall perform all
covenants in this Section 4.
a. Stop Orders, etc. To advise the Delaware Trustee, as the
representative of the Certificate Issuer, the Agencies and the Certificate
Trustee promptly and, if requested by the Delaware Trustee, on behalf of the
Certificate Issuer, the Agencies or the Certificate Trustee, confirm such
advice in writing, of the issuance by the Commission or any state securities
commission of any stop order or an order suspending the qualification or
exemption from qualification of any Note or Certificate for offering or sale
in any jurisdiction in which the Certificates have been offered or the
initiation of any proceeding by the Commission, any state securities
commission or any other federal or state regulatory authority for such
purpose. The Note Issuer shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of any
Note or Certificate under the Securities Act, or any state securities or blue
sky laws and, if at any time the Commission or any state securities
commission or other federal or state regulatory authority shall issue a stop
order or an order suspending the qualification or exemption of any Note or
Certificate under the Securities Act or any state securities or blue sky
laws, the Note Issuer shall use its reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
b. Usury. To the extent permitted by applicable law, not to claim
voluntarily the benefit of any usury laws against the holders of any Notes.
To the extent permitted by applicable law, to resist actively any attempts to
claim the benefit of any usury laws against the holders of any Notes.
c. Satisfy Conditions Precedent. To use its best efforts to do and
perform all things required or necessary to be done and performed under this
Agreement by it prior to the Issuance Date and to satisfy all conditions
precedent to the delivery of the Notes.
d. Certificates and Opinions. At the written request of the Delaware
Trustee on behalf of the Certificate Issuer, the Agencies, or the Certificate
Trustee, to provide, or cause to be provided, to the Delaware Trustee as the
representative of the Certificate Issuer, the Agencies or the Certificate
Trustee, as applicable, a copy of any requested certificate, notice, opinion
or other document delivered by the Note Issuer to the Note Trustee pursuant
to the terms of the Note Indenture.
5. Miscellaneous
a. Fees.
The Note Issuer agrees to reimburse the Certificate Issuer, the
Certificate Trustee, the Delaware Trustee and the Agencies and their
respective officers, directors and each person, if any, who controls the
Certificate Issuer, the Certificate Trustee, the Delaware Trustee or the
Agencies within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act for any and all fees and expenses (including without
limitation the reasonable fees and expenses of counsel) reasonably incurred
by them in connection with enforcing their rights under this Agreement
(including, without limitation, their respective rights under this
Section 5(a)); provided, however, that the Note Issuer's obligations pursuant
to this Section 5(a) shall be treated as Operating Expenses under the Note
Indenture and shall be payable only to the extent that funds are available
for such Operating Expenses in the priority set forth in Section 8.02(d) of
the Note Indenture.
b. Effective Date of Agreement.
This Agreement shall become effective upon the execution and delivery of
this Agreement by the parties hereto.
c. Survival of Representations and Agreements.
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and the purchase of the Notes
hereunder. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of the Note Issuer set forth in Section 5(a),
except as otherwise expressly provided therein, shall survive the payment of
the Notes and the termination of this Agreement.
d. Notice.
Unless otherwise specifically provided herein, all notices, directions,
consents and waivers required under the terms and provisions of this Note
Purchase Agreement shall be in English and in writing, and any such notice,
direction, consent or waiver may be given by United States mail, courier
service, facsimile transmission or electronic mail (confirmed by telephone,
United States mail or courier service in the case of notice by facsimile
transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid,
if to the Agencies, to:
Massachusetts Development Finance Agency
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Massachusetts Health and Educational Facilities Authority
00 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for the
Massachusetts RRB Special Purpose Trust WMECO-1
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Compliance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(with copies to the Agencies at the addresses listed herein)
if to the Certificate Trustee or the Note Trustee, to:
The Bank of New York, as trustee
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Delaware Trustee, to:
The Bank of New York (Delaware), as trustee
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Compliance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Note Issuer, to:
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: 000-000-0000
Telephone: 000-000-0000
Email: xxxxxxx@xx.xxx
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Email: xxxxxxx@xx.xxx
e. Parties.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of the Note Issuer, the Note Trustee, the Certificate Issuer,
the Certificate Trustee, the Delaware Trustee, the Agencies, the directors
and officers of the Certificate Issuer, the Certificate Trustee, the Delaware
Trustee and the Agencies, any controlling persons referred to herein, the
directors, officers and any manager of the Note Issuer (not in their
individual capacities but in their respective capacities as directors,
officers or manager of the Note Issuer) and their respective successors and
assigns, all as and to the extent provided in this Agreement, all of which
Persons shall have rights of enforcement with respect hereto, and no other
Person shall acquire or have any right under or by virtue of this Agreement,
except as contemplated by the Certificate Indenture and the other Basic
Documents. The term "successors and assigns" shall not include a purchaser
of any of the Notes from the Certificate Issuer merely because of such
purchase.
f. Governing Law.
This Agreement shall be governed by, and shall be construed and enforced
in accordance with, the internal laws of The Commonwealth of Massachusetts,
without regard to its conflict of laws principles.
g. Severability.
If any provision of this Agreement shall be prohibited or invalid under
applicable law, the Agreement shall be ineffective only to such extent,
without invalidating the remainder of the Agreement.
h. Further Assurances.
The Note Issuer agrees to execute and deliver such instruments and take
such actions as the Delaware Trustee on behalf of the Certificate Issuer, the
Agencies or the Certificate Trustee may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of this
Agreement.
i. Headings.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
j. Counterparts.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
k. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by The Bank of New York (Delaware),
not individually or personally but solely as Delaware Trustee on behalf of
the Certificate Issuer, in the exercise of the powers and authority conferred
and vested in it, (b) any representations, undertakings and agreements herein
made by the Delaware Trustee on behalf of the Certificate Issuer are made and
intended not as personal representations, undertakings and agreements by The
Bank of New York (Delaware) but are made and intended for the purpose of
binding only the Certificate Issuer, (c) nothing herein contained shall be
construed as creating any liability on The Bank of New York (Delaware),
individually or personally, to perform any covenant either expressed or
implied contained herein, except in its capacity as Delaware Trustee, all
such liability, if any, being expressly waived by the parties who are
signatories to this Agreement and by any Person claiming by, through or under
such parties and (d) under no circumstances shall The Bank of New York
(Delaware) be personally liable for the payment of any indebtedness or
expense of the Certificate Issuer or be personally liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Certificate Issuer under this Agreement; provided, however,
that this provision shall not protect the Delaware Trustee against any
liability that would otherwise be incurred by the Delaware Trustee by
breaching its standard of care imposed by the Declaration of Trust.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Note Issuer and the Certificate Issuer have
caused this Note Purchase Agreement to be duly executed under seal by their
respective officer or trustee, all as of the day and year first above
written.
WMECO FUNDING LLC,
a Delaware limited liability company
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST
WMECO-1, a business trust organized under
the laws of the State of Delaware
By: THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity, but solely as
Delaware Trustee
By: /s/Xxxxxxx X.Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: SVP
SCHEDULE 1(a)
NOTES
Class of Notes Principal Amount Purchase Price (%)
A-1 155,000,000 99.94849%
