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EXHIBIT 10.4
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of July __, 1999, is made by and
between BEC Funding LLC, a Delaware limited liability company (the "Note
Issuer"), and Boston Edison Company, a Massachusetts corporation, as
Administrator (the "Administrator").
RECITALS
A. WHEREAS, the Note Issuer is issuing the Notes pursuant to the Note
Indenture dated as of July __, 1999 (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, 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 July __, 1999 (the "Sale Agreement"),
between the Note Issuer and Boston Edison Company, as Seller (in such capacity,
the "Seller"), (ii) a Transition Property Servicing Agreement dated as of July
__, 1999 (the "Servicing Agreement"), between the Note Issuer and Boston Edison
Company, as Servicer (in such capacity, the "Servicer"), (iii) an Underwriting
Agreement dated as of __, 1999 (the "Underwriting Agreement"), between the Note
Issuer, Boston Edison Company, the Trust, and the Underwriters named therein,
(iv) the Note Indenture, (v) a Note Purchase Agreement dated as of __, 1999 (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 __, 1999 (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 BEC-1 (the
"Trust") (the Sale Agreement, the Servicing Agreement, the Underwriting
Agreement, the Note Indenture, the Note Purchase Agreement and the Fee
Agreement, all as amended or modified from time to time, 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, other than its officers,
and does not intend to hire any additional 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
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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
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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 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 documents and instruments
required for authentication of the Notes, if any, and delivery of the same
to the Note Trustee (Section 2.03);
(2) the duty to keep the Note Register and to give the Note Trustee
notice of any appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.05);
(3) the fixing or causing to be fixed of any special record date and
the notification of each affected Noteholder with respect to special record
dates, payment
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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 newly appointed Paying Agents, if any, to
deliver to the Note Trustee the instrument specified in the Note Indenture
regarding funds held in trust (Section 3.03);
(6) the direction to Paying Agents to pay to the Note Trustee all
sums held in trust by such Paying Agents (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, and the annual delivery of the Officer's Certificate
and certain other statements, in accordance with Section 3.09 of the Note
Indenture, as to compliance with the Note Indenture (Section 3.06 and
3.09);
(11) the identification to the Note Trustee in an Officer's
Certificate of any Person with whom the Note Issuer has contracted to
perform its duties under the Note Indenture (Section 3.07(b));
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(12) the preparation and filing of all documents required under the
Statute relating to the transfer of the ownership or security interest in
the Transition Property (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) the delivery of notice to the Note Trustee and the Rating
Agencies of each Event of Default and each default by the Servicer or
Seller of its obligations under the Servicing Agreement or the Sale
Agreement, respectively (Sections 3.07(d) and 3.9);
(16) the preparation of an Officer's Certificate and 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) the furnishing to the Note Trustee of (i) each Record Date with
respect to each Series and (ii) the names and addresses of Noteholders
during any period when the Note Trustee is not the Note Registrar (Section
7.01);
(18) to the extent not required to be performed by the Servicer, the
preparation and, after execution by the Note Issuer or the Delaware Trustee
(as the case may be), the filing with 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, required to be filed on a
periodic basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and the transmission of such
summaries, as necessary, to the Noteholders (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
(Section 8.02 and 8.03);
(21) the preparation of Issuer Requests and Officers' Certificates and
the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Collateral (Section 8.04 and 8.05);
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(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) the preparation of new Notes conforming to any supplemental
indenture (Section 9.04);
(24) the notification of the Note Trustee of any redemption of the
Notes (Sections 10.01 and 10.04);
(25) the preparation of all Officer's Certificates and Independent
Certificates 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 and delivery of Officers' Certificates for the
release of property from the lien of the Note Indenture (Section 11.01(b));
(27) the notification of the Note Trustee of any notice received by
the Note Issuer from the Noteholders (Section 11.04); and
(28) the recording of the Note Indenture, if applicable, and the
obtaining of an Opinion of Counsel in connection therewith (Section 11.14).
(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 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)(iii));
(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)(iii));
(3) to the extent not required to be performed by the Servicer, the
preparation and, after execution by the Note Issuer, the filing with the
SEC of reports on Form SR as required by Rule 463 under the Act, and the
delivery of such reports on Form SR, as filed with the Commission, to the
Representatives (Section 5(a)(iii));
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(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)(iv));
(5) the arrangement for the determination of the legality of the
Certificates for purchase by institutional investors (Section 5(a)(iv));
(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)(vi));
(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)(vii)); 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)(viii)).
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 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 the
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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
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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 at 000 Xxxxxxxx Xxxxxx, Xxxxx 00,
Xxxxxx, 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
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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 $37,500 for each semi-annual 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
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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
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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.
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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 or entity even though such person or entity
may engage in business activities similar to those of the Note Issuer.
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
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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.
(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) or 5.04(c), 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. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Note Issuer, to
BEC Funding LLC
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) if to the Administrator, to
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Boston Edison Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Manager, Corporate Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(c) if to the Note Trustee, to
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, telecopied or
hand-delivered to the address of such party as provided above, except that
notices to the Note Trustee are effective only upon receipt.
Section 5.07 AMENDMENTS. This Agreement may be amended in writing by the
Administrator and the Note Issuer with the written consent of the Note Trustee,
but without the consent of any of the Noteholders or Certificateholders, 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 of all Series, 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.
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Promptly after the execution of any such amendment and the requisite
consents, the Administrator shall furnish written notification of the substance
of such amendment to the Note Trustee and each of the Rating Agencies.
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.
Prior to its consent to any amendment to this Agreement, the Note Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
such amendment is authorized or permitted by this Agreement. The Note Trustee
may, but shall not be obligated to, enter into any such amendment which affects
the Note Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section 5.08 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Note Issuer and the Note Trustee and is subject to the satisfaction of
the Rating Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Note Issuer and the Note Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Note Issuer and the Note Trustee an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder and
the Rating Agency Condition is satisfied. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
Section 5.09 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Administrator, the Note Issuer, the
Trust, the Note Trustee (for its own benefit and for the benefit of the
Noteholders), the Certificate Trustee (for its own benefit and for the benefit
of the Certificateholders), the Delaware Trustee and the Agencies, 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 5.2. The Persons listed in this section as having the benefit of this
Agreement shall have rights of enforcement with respect this Agreement.
Section 5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE 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.
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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 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 LIMITATION OF LIABILITY OF NOTE TRUSTEE. Notwithstanding
anything contained herein to the contrary, this Agreement has been accepted by
The Bank of New York, not in its individual capacity but solely as Note Trustee
on behalf of the holders of the Notes, in the exercise of the powers and
authority contained and vested in it, and in no event shall The Bank of New York
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Note Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Note Issuer.
Section 5.16 INDEMNIFICATION. The Administrator shall indemnify the Note
Issuer, the Note Trustee (for its own benefit and the benefit of the
Noteholders), the Delaware Trustee, the Certificate Trustee (for its own benefit
and the benefit of the Certificateholders), the Trust, the Agencies, and their
respective officers, directors, managers, employees and agents for, and defend
and hold harmless each such Person from and against, any and all liabilities,
obligations, suits, claims, losses, damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred by or asserted against any such
Person as a result of the Administrator's willful
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misconduct or gross negligence in the performance of its duties or observance of
its covenants under this Agreement.
Section 5.17 LIMITATION ON LIABILITY OF ADMINISTRATOR. Notwithstanding any
of the other provisions of this Agreement including those in Section 5.16, in no
event shall the Administrator be liable under or with respect to this Agreement
for any amount in excess of the compensation received from the Note Issuer
pursuant to Section 3.01.
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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.
BEC FUNDING LLC, as Note Issuer
By:
-----------------------------------
Name:
Title:
BOSTON EDISON COMPANY, as Administrator
By:
-----------------------------------
Name:
Title:
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