P&D Draft
5/3/01
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of May 17, 2001, is made by and
between WMECO Funding LLC, a Delaware limited liability company (together with
any successor thereto permitted under the Note Indenture, as hereinafter
defined, the "Note Issuer"), and Western Massachusetts Electric Company, a
Massachusetts corporation, as Administrator (together with its permitted
successors or assigns as administrator hereunder, the "Administrator").
RECITALS
A. WHEREAS, the Note Issuer is issuing the Notes pursuant to the Note
Indenture dated as of the date hereof (as amended, modified or supplemented from
time to time in accordance with the provisions thereof, the "Note Indenture";
capitalized terms used herein and not defined herein shall have the meanings
assigned such terms in the Note Indenture), between the Note Issuer and The Bank
of New York, as Note Trustee (in such capacity, together with its successors and
assigns permitted under the Note Indenture, the "Note Trustee").
B. WHEREAS, the Note Issuer has entered into certain agreements in
connection with the issuance of the Notes, including (i) a Transition Property
Purchase and Sale Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Sale Agreement"), between the Note Issuer and Western Massachusetts Electric
Company, as Seller (in such capacity, the "Seller"), (ii) a Transition Property
Servicing Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Servicing Agreement"), between the Note Issuer and Western Massachusetts
Electric Company, as Servicer (in such capacity, together with its successors
and assigns permitted under the Servicing Agreement, the "Servicer"), (iii) an
Underwriting Agreement dated as of May [__], 2001 (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Underwriting Agreement"), among the Note Issuer, Western Massachusetts Electric
Company, and the Underwriters named therein, (iv) the Note Indenture, (v) a Note
Purchase Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Note Purchase Agreement") between the Note Issuer and The Bank of New York, as
Certificate Trustee (in such capacity, the "Certificate Trustee") and (vi) a Fee
and Indemnity Agreement dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Fee Agreement") among the Delaware Trustee, the Massachusetts Development
Finance Agency, the Massachusetts Health and Educational Facilities Authority,
the Certificate Trustee, the Note Issuer, and Massachusetts RRB Special Purpose
Trust WMECO-1 (the "Trust") (the Sale Agreement, the Servicing Agreement, the
Underwriting Agreement, the Note Indenture, the Note Purchase Agreement and the
Fee Agreement are hereinafter referred to collectively as the "Related
Agreements");
C. WHEREAS, pursuant to the Related Agreements, the Note Issuer is
required to perform certain duties in connection with the Notes and the
collateral therefor pledged pursuant to the Note Indenture (the "Collateral")
and to maintain its existence and comply with applicable laws;
D. WHEREAS, the Note Issuer has no employees and does not intend to
hire any employees, and consequently desires to have the Administrator perform
certain duties of the Note Issuer referred to in the preceding clause, and to
provide such additional services consistent with the terms of this Agreement and
the Related Agreements as the Note Issuer may from time to time request; and
E. WHEREAS, the Administrator has the capacity to provide the
services and the facilities required hereby and is willing to perform such
services and provide such facilities for the Note Issuer on the terms set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I.
DUTIES OF ADMINISTRATOR
Section 1.01. APPOINTMENT OF ADMINISTRATOR: ACCEPTANCE OF APPOINTMENT.
The Note Issuer hereby appoints the Administrator, and the Administrator hereby
accepts such appointment, to perform the Administrator's obligations pursuant to
this Agreement on behalf of and for the benefit of the Note Issuer in accordance
with the terms of this Agreement and applicable law.
Section 1.02. DUTIES WITH RESPECT TO THE RELATED AGREEMENTS. (a) The
Administrator agrees to perform all its duties as Administrator hereunder in
accordance with the terms of this Agreement and applicable law. In addition, the
Administrator shall consult with the Note Issuer regarding the Note Issuer's
duties under the Related Agreements. Unless otherwise notified in writing by the
Note Issuer, the Administrator shall prepare for execution by the Note Issuer,
or shall cause the preparation by other appropriate Persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Note Issuer to prepare, file, obtain or deliver pursuant to
any Related Agreement. In furtherance of the foregoing, the Administrator shall
take all appropriate action that it is the duty of the Note Issuer to take
pursuant to the Note Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the Note
Indenture (references are to sections of the Note Indenture):
(1) the preparation of or obtaining of the Notes and or any
other Note Issuer documents and instruments required for authentication
of the Notes, if any, and delivery of the same to the Note Trustee for
authentication (Sections 2.03 and 2.10);
(2) the duty to cause the Note Register to be kept and,
during any period of time when the Note Trustee is not the Note
Registrar, to give the Note Trustee notice of
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any appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.05);
(3) the fixing or causing to be fixed of any special record
date and the notification of each affected Noteholder with respect to
special record dates, payment dates, and the amount of defaulted
interest (plus interest on such defaulted interest) to be paid, if any
(Section 2.08(c));
(4) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.11);
(5) the duty to cause each newly appointed Paying Agent
(other than the Note Trustee), if any, to deliver to the Note Trustee
the instrument specified in the Note Indenture regarding its agreement
with the Note Trustee (Section 3.03);
(6) the direction to any Paying Agent to pay to the Note
Trustee all sums held in trust by such Paying Agent (Section 3.03);
(7) the preparation and filing of all documents and
instruments necessary to maintain the Note Issuer's existence, rights
and franchises as a limited liability company under the laws of the
State of Delaware (unless the Note Issuer becomes, or any successor
Note Issuer under the Note Indenture is or becomes, organized under the
laws of any other State or of the United States of America, in which
case the Administrator will prepare and file all documents and
instruments necessary to maintain such Note Issuer's existence, rights
and franchises under the laws of such other jurisdiction) (Section
3.04);
(8) the obtaining and preservation of the Note Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Note Indenture, the Notes, the Collateral and
each other instrument or agreement included in the Collateral (Section
3.04);
(9) the preparation of all supplements and amendments to the
Note Indenture, filings with the DTE pursuant to the Statute, financing
statements, continuation statements, instruments of further assurance
and other instruments, in accordance with Section 3.05 of the Note
Indenture, necessary to protect the Collateral (Section 3.05);
(10) the obtaining of the Opinions of Counsel and the delivery
of such Opinions of Counsel, in accordance with Section 3.06 of the
Note Indenture, as to the Collateral (Section 3.06);
(11) the identification to the Note Trustee in an Officer's
Certificate of any Person (other than the Administrator and the
Servicer) with whom the Note Issuer has contracted to perform its
duties under the Note Indenture (Section 3.07(b));
(12) the preparation and filing of all documents required
under the Statute relating to the transfer of the ownership interest
and security interest in the Transition
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Property other than those required to be made by the Seller pursuant to
the Related Agreements (Section 3.07(i));
(13) the annual preparation and delivery of an Officer's
Certificate to the Note Trustee, the Certificate Trustee, the Agencies
and the Rating Agencies as to compliance with conditions and covenants
under the Note Indenture (Section 3.09);
(14) the preparation and obtaining of documents and
instruments required for the release of the Note Issuer from its
obligations under the Note Indenture (Section 3.11(b));
(15) promptly after an Authorized Officer of the Administrator
has actual knowledge thereof, the delivery of written notice to the
Note Trustee, the Certificate Trustee, the Agencies and the Rating
Agencies of each Event of Default under the Note Indenture, each
Servicer Default by the Servicer under and as defined in the Servicing
Agreement and each default by the Seller of its obligations under the
Sale Agreement (Sections 3.07(d) and 3.20);
(16) the preparation of or obtaining of an Officer's
Certificate, an Opinion of Counsel and an Independent Certificate
relating to (i) the satisfaction and discharge of the Note Indenture
under Section 4.01 of the Note Indenture or (ii) the exercise of the
Legal Defeasance Option or the Covenant Defeasance Option under Section
4.02 of the Note Indenture (Sections 4.01 and 4.02);
(17) during any period when the Note Trustee is not the Note
Registrar, the furnishing to the Note Trustee of a list of the names
and addresses of Noteholders as required of the Note Issuer under
Section 7.01 of the Note Indenture (Section 7.01);
(18) to the extent not required to be performed by the
Servicer, the preparation and, after execution by the Note Issuer, the
Delaware Trustee or the Certificate Trustee (as the case may be), the
filing with the Securities and Exchange Commission (the "SEC") and the
Note Trustee of the annual reports and of the information, documents
and other reports, including filings on behalf of the Trust pursuant to
the Certificate Indenture, the Declaration of Trust or otherwise,
required to be filed on a periodic basis with, and summaries thereof as
may be required by rules and regulations prescribed by, the SEC and the
transmission of such summaries, as necessary, to the Note Trustee
(Sections 3.07(h) and 7.03);
(19) the notification of the Note Trustee if and when the
Notes are listed on any stock exchange (Section 7.04);
(20) the opening of one or more segregated trust accounts in
the Note Trustee's name, the preparation of Issuer Orders, and the
obtaining of Opinions of Counsel and the taking of all other actions
necessary with respect to investment and reinvestment of funds in the
Collection Account, the making of written requests to the Note Trustee
for Operating Expenses due and payable before any Payment Date and the
making of Issuer Requests to obtain the release of excess funds from
the Capital Subaccount (Sections 8.02 and 8.03);
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(21) the preparation of Issuer Requests and Officers'
Certificates and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral (Sections
8.04 and 8.05);
(22) the preparation of Issuer Orders and the obtaining of
Officers' Certificates with respect to the execution of supplemental
indentures (Sections 9.01 and 9.02);
(23) if required by the Note Trustee or the Note Issuer, the
preparation of new Notes conforming to any supplemental indenture
(Section 9.04);
(24) the preparation and delivery of the written notification
of the Note Issuer or, if requested by the Note Trustee, to be given by
the Note Trustee of any redemption of the Notes as required under
Section 10.01 or 10.04 of the Note Indenture (Sections 10.01 and
10.04);
(25) the preparation of all Officer's Certificates and
obtaining of all Opinions of Counsel and Independent Certificates, if
necessary, with respect to any requests by the Note Issuer to the Note
Trustee to take any action under the Note Indenture (Section 11.01(a));
(26) the preparation or obtainment and delivery of Officers'
Certificates and Independent Certificates, if necessary, in connection
with the deposit of any property with the Note Trustee that is to be
made the basis for the release of property from the lien of the Note
Indenture (Section 11.01(b));
(27) the recording of the Note Indenture, if applicable, and
the obtaining of an Opinion of Counsel in connection therewith (Section
11.14); and
(28) the obtaining of evidence that the Rating Agency
Condition shall have been satisfied whenever required to be obtained
under the Note Indenture or other Related Agreement.
(b) The Administrator shall also take all appropriate action
that it is the duty of the Note Issuer to take pursuant to the Underwriting
Agreement including, without limitation, the following matters (references are
to sections of the Underwriting Agreement):
(1) to the extent not already delivered, the delivery to the
Representatives (as defined in the Underwriting Agreement) and counsel
for the Underwriters under the Underwriting Agreement (the
"Underwriters"), of copies of the Registration Statement (as defined in
the Underwriting Agreement) (Section 5(a)(iv));
(2) so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, the delivery to the Representatives
and counsel for the Underwriters of as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request (Section 5(a)(iv));
(3) to the extent not required to be performed by the
Servicer, the preparation and, after execution by the Note Issuer, the
filing with the SEC of reports on Form SR as
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required by Rule 463 under the Act, and the delivery of such reports on
Form SR, as filed with the SEC, to the Representatives (Section
5(a)(iv));
(4) the preparation and, after execution by the Note Issuer,
the filing of all documents and instruments necessary to qualify the
Certificates for sale under the laws of such jurisdictions as the
Representatives may designate, and the maintenance of such
qualifications in effect so long as required for the distribution of
the Certificates, subject to the qualifications, limitations and
exceptions set forth in the Underwriting Agreement (Section 5(a)(v));
(5) the arrangement for the determination of the legality of
the Certificates for purchase by institutional investors (Section
5(a)(v));
(6) to the extent not already performed by the Servicer, the
delivery to the Representatives of the annual statements of compliance
and the annual independent auditor's servicing reports furnished to the
Note Issuer or the Note Trustee pursuant to the Servicing Agreement or
the Note Indenture (Section 5(a)(vii));
(7) so long as any of the Certificates are outstanding, and
to the extent not already performed by the Servicer, the delivery to
the Representatives of (i) a copy of any filings with the DTE pursuant
to the Financing Order including, but not limited to, any Issuance
Advice Letters and (ii) from time to time, any information concerning
the Note Issuer to the extent readily available, that the
Representatives may reasonably request (Section 5(a)(viii)); and
(8) to the extent, if any, that any rating necessary to
satisfy the condition set forth in Section 6(r) of the Underwriting
Agreement is conditioned upon the furnishing of documents or the taking
of other actions by the Note Issuer on or after the Closing Date (as
defined in the Underwriting Agreement), the delivery of such documents
and the taking of such actions (Section 5(a)(ix)).
Section 1.03. ADDITIONAL DUTIES. (a) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare for execution by the Note Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Note Issuer to prepare, file, obtain or deliver pursuant to the Related
Agreements, and at the request of the Note Issuer shall take all appropriate
action that it is the duty of the Note Issuer to take pursuant to the Related
Agreements. Subject to Section 5.01 of this Agreement, and in accordance with
the directions of the Note Issuer, the Administrator shall administer, perform
or supervise the performance of such other activities in connection with the
Collateral and the Related Agreements as are not covered by any of the foregoing
provisions and as are expressly requested by the Note Issuer and are reasonably
within the capability of the Administrator.
(b) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be, in
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the Administrator's reasonable opinion, no less favorable to the Note Issuer
than would be available from unaffiliated parties.
Section 1.04. NON-MINISTERIAL MATTERS. (a) With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless the Administrator shall have
notified the Note Issuer of the proposed action and the Note Issuer shall have
consented. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(1) the amendment of, or any supplement to, the Note
Indenture;
(2) the initiation of any claim or lawsuit by the Note Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Note Issuer (other than in connection with the collection
of the RTC Charge);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Note Registrars, successor
Paying Agents and successor Note Trustees pursuant to the Note
Indenture or the appointment of successor Administrators or successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Note Trustee of its obligations under the Note
Indenture; and
(5) the removal of the Note Trustee.
(b) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and hereby agrees that
it shall not, take any action that the Note Issuer directs the Administrator not
to take on its behalf.
Section 1.05. RECORDS. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Note
Issuer and the Note Trustee at any time during normal business hours.
ARTICLE II.
FACILITIES
Section 2.01. FACILITIES. During the term of this Agreement, the
Administrator shall make available to or provide the Note Issuer with such
facilities as are necessary to conduct the business of the Note Issuer and to
comply with the terms of the Related Agreements. Such facilities shall include
office space to serve as the principal place of business of the Note Issuer.
Initially such office space will be located x/x Xxxxxxx Xxxxxxxxxxxxx Electric
Company at 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000. All
facilities provided to the Note Issuer hereunder shall be provided without
warranty of any kind.
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ARTICLE III.
COMPENSATION
Section 3.01. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement, including the provision of
facilities pursuant to Section 2.01, the Administrator shall be entitled to a
fee of $75,000 per annum, payable in four equal installments for each quarterly
period, payable on the Payment Date as defined in Section 1.01(a) of the Note
Indenture. In addition, the Note Issuer shall reimburse the Administrator for
all filing fees and expenses, legal fees, fees of outside auditors and other
out-of-pocket expenses incurred by the Administrator in the course of performing
its duties hereunder. The Administrator's compensation and other expenses
payable hereunder shall be paid from the Collection Account pursuant to Section
8.02(d) of the Note Indenture, and the Administrator shall have no recourse
against the Note Issuer for payment of such amounts other than in accordance
with Section 8.02 of the Note Indenture.
ARTICLE IV.
ADDITIONAL INFORMATION
Section 4.01. ADDITIONAL INFORMATION TO BE FURNISHED TO NOTE ISSUER.
The Administrator shall furnish to the Note Issuer from time to time such
additional information regarding the Collateral as the Note Issuer shall
reasonably request.
ARTICLE V.
MISCELLANEOUS PROVISIONS
Section 5.01. INDEPENDENCE OF ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Note Issuer with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Note Issuer, the Administrator shall have no
authority to act for or represent the Note Issuer in any way and shall not
otherwise be deemed an agent of the Note Issuer.
Section 5.02. NO JOINT VENTURE. Nothing contained in this Agreement
shall (a) constitute the Administrator and the Note Issuer as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (b) be construed to impose any liability as such on any
of them or (c) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
Section 5.03. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person even though such Person may engage in
business activities similar to those of the Note Issuer.
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Section 5.04. TERM OF AGREEMENT: RESIGNATION AND REMOVAL OF
ADMINISTRATOR.
(a) This Agreement shall continue in force for one year and
one day after the retirement of all Notes issued pursuant to the Note Indenture.
(b) Subject to Sections 5.04(e) and 5.04(f), the
Administrator may resign its duties hereunder by providing the Note Issuer with
at least 60 days prior written notice.
(c) Subject to Sections 5.04(e) and 5.04(f), the Note Issuer
may remove the Administrator without cause by providing the Administrator with
at least 60 days prior written notice.
(d) Subject to Sections 5.04(e) and 5.04(f), at the sole
option of the Note Issuer, the Administrator may be removed immediately upon
written notice of termination from the Note Issuer to the Administrator if any
of the following events shall occur:
(1) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default is
curable but cannot be cured in such time, shall not give within ten
days such assurance of cure as shall be reasonably satisfactory to the
Note Issuer);
(2) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have
been vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(3) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clause (2) or (3) of this Section shall occur, it shall give written notice
thereof to the Note Issuer and the Note Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant
to this Section 5.04 shall be effective until (1) a successor Administrator
shall have been appointed by the Note Issuer and (2) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
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(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
Section 5.05. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly
upon the effective date of termination of this Agreement pursuant to Section
5.04(a) or the resignation or removal of the Administrator pursuant to Sections
5.04(b) or 5.04(c) respectively, the Administrator shall be entitled to be paid
all fees accruing to it and expenses accrued by it in the performance of its
duties hereunder through the date of such termination, resignation or removal,
to the extent permitted under Article III. The Administrator shall forthwith
upon such termination pursuant to Section 5.04(a) deliver to the Note Issuer all
property and documents of or relating to the Collateral then in the custody of
the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Sections 5.04(b), 5.04(c), or 5.04(d) respectively,
the Administrator shall cooperate with the Note Issuer and take all reasonable
steps requested to assist the Note Issuer in making an orderly transfer of the
duties of the Administrator.
Section 5.06. NOTICES. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Administration Agreement shall be in English and in writing,
and any such notice, direction, consent or waiver may be given by United States
mail, courier service, facsimile transmission or electronic mail (confirmed by
telephone, United States mail or courier service in the case of notice by
facsimile transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the United
States mail with proper postage for ordinary mail prepaid, except that notices
to the Note Trustee are effective only upon receipt:
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(a) if to the Note Issuer, to
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (860) 000- 0000
Email: xxxxxxx@xx.xxx
(b) if to the Administrator, to
Western Massachusetts Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
if by U.S. Mail:
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (860) 665 -5457
Telephone: (000) 000-0000
(c) if to the Note Trustee, to
The Bank of New York, as trustee
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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(d) if to the Rating Agencies, to their addresses as set
forth in the Note Indenture.
or to such other address as any party shall have provided to the other parties
in writing.
Section 5.07. AMENDMENTS. This Agreement may be amended in writing by
the Administrator and the Note Issuer and with the prior written consent of the
Note Trustee (which consent shall not unreasonably be withheld), but without the
consent of any of the Noteholders, the Certificate Trustee or any of the
Certificateholders (notwithstanding any provision of any other document that
would otherwise require such consent as a precondition of Note Trustee consent),
to cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that such action shall not, as evidenced by an Officer's Certificate
delivered to the Note Trustee, adversely affect in any material respect the
interests of any Noteholder or Certificateholder.
This Agreement may also be amended in writing from time to time by the
Administrator and the Note Issuer with the written consent of the Note Trustee
and the written consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall increase
or reduce in any manner the amount of, or accelerate or delay the timing of, RTC
Charge Collections without the consent of the Holders of all the outstanding
Notes.
If the written consent of Noteholders is required in connection with an
amendment hereof, approval by Noteholders of the substance of any proposed
amendment or consent shall constitute sufficient consent of the Noteholders
pursuant to this Section, and it shall not be necessary that Noteholders approve
of the particular form of any amendment or consent.
Promptly after the execution of any such amendment and the requisite
consents, if any, the Administrator shall furnish written notification of the
substance of such amendment and a copy thereof to the Note Trustee and each of
the Rating Agencies.
Prior to its consent to any amendment to this Agreement, the Note
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that such amendment is authorized or permitted by this Agreement. The Note
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Note Trustee's own rights, duties or immunities under this Agreement
or otherwise.
Section 5.08. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Note Issuer and the Note Trustee and is subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
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Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Note Issuer and the Note Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided that such successor
organization executes and delivers to the Note Issuer and the Note Trustee an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder and the Rating Agency Condition is satisfied.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
Section 5.09. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Administrator, the Note Issuer, the
Trust, the Note Trustee, the Noteholders, the Certificate Trustee, the
Certificateholders, the Delaware Trustee and the Agencies. The Noteholders and
the Certificateholders shall be entitled to enforce their rights and remedies
against the Administrator under this agreement solely through a cause of action
brought for their benefit by the Note Trustee or the Certificate Trustee, as the
case may be, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Transition Property or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein, except for the indemnities
specifically provided in Section 5.15. The Persons listed in this section as
having the benefit of this Agreement and the Indemnified Persons listed in
Section 5.15 shall have rights of enforcement with respect to their respective
rights in, to and under this Agreement.
Section 5.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 5.11. HEADINGS. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 5.12. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
Section 5.13. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 5.14. NONPETITION COVENANTS. Notwithstanding any prior
termination of this Agreement or the Note Indenture, but subject to the DTE's
right to order the sequestration and payment of revenues arising with respect to
the Transition Property notwithstanding any bankruptcy, reorganization or other
insolvency proceedings with respect to the Seller of the Transition Property
pursuant to Section 1H(d)(5) of the Statute, the Administrator shall not, prior
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to the date which is one year and one day after the termination of the Note
Indenture with respect to the Note Issuer, petition or otherwise invoke or cause
the Note Issuer or the Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Note
Issuer or the Trust under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Note Issuer or the Trust or any
substantial part of the property of the Note Issuer or the Trust, or ordering
the winding up or liquidation of the affairs of the Note Issuer or the Trust.
Section 5.15. INDEMNIFICATION. The Administrator shall indemnify the
Note Issuer, the Note Trustee, the Delaware Trustee, the Certificate Trustee,
the Trust, The Commonwealth of Massachusetts, the Executive Office for Finance
and Administration of The Commonwealth of Massachusetts, the Agencies, and their
respective officials, officers, directors, managers, employees, consultants,
counsel and agents (each an "Indemnified Person") for, and defend and hold
harmless each such Person from and against, any and all liabilities,
obligations, actions, suits, claims, losses, damages, payments, costs or
expenses of any kind whatsoever ("Losses") that may be imposed on, incurred by
or asserted against any such Person as a result of the Administrator's willful
misconduct or negligence in the performance of its duties or observance of its
covenants under this Agreement; provided, however, that the Administrator shall
not be liable for any Losses resulting from the willful misconduct or gross
negligence of such Indemnified Person. The Noteholders and the
Certificateholders shall be entitled to enforce their rights and remedies
against the Administrator under this indemnification solely through a cause of
action brought for their benefit by the Note Trustee or the Certificate Trustee,
as the case may be. The Administrator shall not be required to indemnify an
Indemnified Person for any amount paid or payable by such Indemnified Person in
the settlement of any action, proceeding or investigation without the written
consent of the Administrator, which consent shall not be unreasonably withheld.
Promptly after receipt by an Indemnified Person of notice of its involvement in
any action, proceeding or investigation, such Indemnified Person shall, if a
claim for indemnification in respect thereof is to be made against the
Administrator under this Section 5.15, notify the Administrator in writing of
such involvement. Failure by an Indemnified Person to so notify the
Administrator shall relieve the Administrator from the obligation to indemnify
and hold harmless such Indemnified Person under this Section 5.15 only to the
extent that the Administrator suffers actual prejudice as a result of such
failure. With respect to any action, proceeding or investigation brought by a
third party for which indemnification may be sought under this Section 5.15, the
Administrator shall be entitled to assume the defense of any such action,
proceeding or investigation. Upon assumption by the Administrator of the defense
of any such action, proceeding or investigation, the Indemnified Person shall
have the right to participate in such action or proceeding and to retain its own
counsel. The Administrator shall be entitled to appoint counsel of the
Administrator's choice at the Administrator's expense to represent the
Indemnified Person in any action, proceeding or investigation for which a claim
of indemnification is made against the Administrator under this Section 5.15 (in
which case the Administrator shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the Indemnified Person except
as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Administrator's
election to appoint counsel to represent the Indemnified Person in an action,
proceeding or investigation, the Indemnified Person shall have the right to
employ separate counsel (including local counsel), and the Administrator shall
bear the reasonable fees, costs and
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expenses of such separate counsel if (i) the use of counsel chosen by the
Administrator to represent the Indemnified Person would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the Indemnified Person and the
Administrator and the Indemnified Person shall have reasonably concluded that
there may be legal defenses available to it that are different from or
additional to those available to the Administrator, (iii) the Administrator
shall not have employed counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person within a reasonable time after notice
of the institution of such action or (iv) the Administrator shall authorize the
Indemnified Person to employ separate counsel at the expense of the
Administrator. Notwithstanding the foregoing, the Administrator shall not be
obligated to pay for the fees, costs and expenses of more than one separate
counsel for the Indemnified Persons (in addition to local counsel). The
Administrator will not, without the prior written consent of the Indemnified
Person, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought under this Section 5.15 (whether
or not the Indemnified Person is an actual or potential party to such claim or
action) unless such settlement, compromise or consent includes an unconditional
release of the Indemnified Person from all liability arising out of such claim,
action, suit or proceeding. The indemnities contained in this Section 5.15 shall
survive the resignation of the Note Trustee, the Certificate Trustee or the
Delaware Trustee or the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered under seal as of the day and year
first above written.
WMECO FUNDING LLC, as Note Issuer
By:
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
WESTERN MASSACHUSETTS ELECTRIC
COMPANY, as Administrator
By:
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer-Finanace
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