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TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT
between
BEC FUNDING LLC
Note Issuer
and
BOSTON EDISON COMPANY
Seller
Dated as of July 29, 1999
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS...........................................................................................1
Section 1.01. Definitions........................................................................1
ARTICLE II. CONVEYANCE OF TRANSITION PROPERTY....................................................................5
Section 2.01. Conveyance of Transition Property..................................................5
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER............................................................6
Section 3.01. Organization and Good Standing.....................................................6
Section 3.02. Due Qualification..................................................................6
Section 3.03. Power and Authority................................................................6
Section 3.04. Binding Obligation. ...............................................................7
Section 3.05. No Violation.......................................................................7
Section 3.06. No Proceedings.....................................................................7
Section 3.07. Approvals..........................................................................7
Section 3.08. The Transition Property. ..........................................................8
Section 3.09. Limitations on Representations and Warranties......................................9
ARTICLE IV. COVENANTS OF THE SELLER.............................................................................10
Section 4.01. Corporate Existence...............................................................10
Section 4.02. No Liens..........................................................................10
Section 4.03. Delivery of Collections...........................................................10
Section 4.04. Notice of Liens...................................................................10
Section 4.05. Compliance with Law...............................................................10
Section 4.06. Covenants Related to Notes and Transition Property................................11
Section 4.07. Protection of Title...............................................................11
Section 4.08. Nonpetition Covenants.............................................................12
Section 4.09. Taxes.............................................................................12
Section 4.10. Additional Sales of Transition Property...........................................12
ARTICLE V. THE SELLER...........................................................................................13
Section 5.01. Liability of Seller; Indemnities..................................................13
Section 5.02. Merger or Consolidation of, or Assumption of the Obligations of,
Seller.............................................................................................16
Section 5.03. Limitation on Liability of Seller and Others......................................17
ARTICLE VI. MISCELLANEOUS PROVISIONS............................................................................17
Section 6.01. Amendment.........................................................................17
Section 6.02. Notices...........................................................................18
Section 6.03. Assignment........................................................................19
Section 6.04. Limitations on Rights of Third Parties............................................20
Section 6.05. Severability......................................................................20
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Section 6.06. Separate Counterparts.............................................................20
Section 6.07. Headings..........................................................................20
Section 6.08. Governing Law.....................................................................20
Section 6.09. Assignment to Note Trustee........................................................20
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This TRANSITION PROPERTY PURCHASE AND SALE AGREEMENT, dated as of July
29, 1999, is between BEC Funding LLC, a Delaware limited liability company (the
"Note Issuer"), and Boston Edison Company, a Massachusetts corporation (together
with its successors in interest to the extent permitted hereunder, the
"Seller").
RECITALS
WHEREAS, the Note Issuer desires to purchase the Transition Property
(as defined herein) created pursuant to the Statute and the Financing Order
(each as defined herein); and
WHEREAS, the Seller is willing to sell the Transition Property to the
Note Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Administration Agreement" means the Administration Agreement dated as
of July 29, 1999 between Boston Edison Company, as Administrator, and the Note
Issuer, as amended and supplemented from time to time.
"Agencies" means, collectively, the Massachusetts Development Finance
Agency and the Massachusetts Health and Educational Facilities Authority.
"Agreement" means this Transition Property Purchase and Sale Agreement,
as amended and supplemented from time to time.
"Back-Up Security Interest" has the meaning specified in Section 2.01.
"Basic Documents" means, collectively, this Agreement, the Note
Indenture, the Declaration of Trust, the Certificate Indenture, the Servicing
Agreement, the Administration Agreement, the Note Purchase Agreement, the
Underwriting Agreement and the Fee and Indemnity Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in New York, New York, Boston,
Massachusetts or Wilmington, Delaware are authorized or obligated by law,
regulation or executive order to remain closed.
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"Certificate Indenture" means the Certificate Indenture dated as of
July 29, 1999, between the Certificate Issuer and the Certificate Trustee, as
amended and supplemented from time to time.
"Certificate Trustee" means the Person acting as trustee under the
Certificate Indenture.
"Certificateholders" has the meaning specified in Section 1.01(a) of
the Certificate Indenture.
"Certificates" means the Massachusetts RRB Special Purpose Trust BEC-1
Rate Reduction Certificates issued under the Certificate Indenture.
"Closing Date" means July 29, 1999.
"Collection Account" has the meaning specified in Section 8.02(a) of
the Note Indenture.
"Corporate Trust Office" has the meaning specified in Section 1.01(a)
of the Note Indenture.
"Customers" means all classes of retail users of the Seller's
distribution system within its geographic service territory as in effect on July
1, 1997.
"Date of Breach" means, with respect to the repurchase obligation
specified in Section 5.01(b), the date of breach of a representation or warranty
that triggers such repurchase obligation.
"Declaration of Trust" means the Declaration of Trust dated as of July
28, 1999, among the Agencies and the Delaware Trustee, as amended and
supplemented from time to time.
"Delaware Trustee" means the Person acting as trustee under the
Declaration of Trust.
"DTE" means the Massachusetts Department of Telecommunications and
Energy and any successor thereto.
"DTE Regulations" has the meaning specified in Section 1.01 of the
Servicing Agreement.
"Duff & Phelps" means Duff & Phelps Credit Rating Co. or its successor.
"Fee and Indemnity Agreement" means the fee and indemnity agreement
dated as of July 29, 1999 among the Note Issuer, the Delaware Trustee, the
Certificate Trustee, the Trust and the Agencies.
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"Financing Order" means the order of the DTE, DTE-98-118, issued on
April 2, 1999, as further clarified by the Order on the Massachusetts
Development Finance Agency's and Massachusetts Health and Educational Facilities
Authority's Motion for Clarification dated May 21, 1999.
"Fitch IBCA" means Fitch IBCA, Inc. or its successor.
"Indemnified Person" has the meaning specified in Section 5.01(h).
"Issuance Advice Letter" means the initial Issuance Advice Letter,
dated July 28, 1999, filed with the DTE by the Seller pursuant to the Financing
Order.
"Lien" means a security interest, lien, charge, pledge or encumbrance
of any kind.
"Losses" has the meaning specified in Section 5.01(e).
"Moody's" means Moody's Investors Service, Inc. or its successor.
"Note Indenture" means the Note Indenture dated as of July 29, 1999,
between the Note Issuer and the Note Trustee, as amended and supplemented from
time to time.
"Note Issuer" has the meaning set forth in the preamble of this
Agreement.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
July 29, 1999 between the Note Issuer and the Trust, as amended and supplemented
from time to time.
"Note Register" has the meaning specified in Section 2.05 of the Note
Indenture.
"Note Trustee" means the Person acting as trustee under the Note
Indenture.
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Note Register.
"Notes" means the BEC Funding LLC Notes issued under the Note
Indenture.
"Officer's Certificate" means a certificate signed by the chairman of
the board, the chief executive officer, the president, the vice chairman of the
board, any vice president, the treasurer, any assistant treasurer, the clerk,
any assistant clerk, the controller or the finance manager of the Seller.
"Operating Expense" has the meaning specified in Section 1.01(a) of the
Note Indenture.
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"Opinion of Counsel" means one or more written opinions of counsel who
may be an employee of or counsel to the party providing such opinion of counsel,
which counsel shall be reasonably acceptable to the party receiving such opinion
of counsel.
"Outstanding Amount" has the meaning specified in Section 1.01(a) of
the Note Indenture.
"Overcollateralization Subaccount" has the meaning specified in Section
8.02(a) of the Note Indenture.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Rating Agencies" means, collectively, S&P, Moody's, Fitch IBCA and
Duff & Phelps.
"Repurchase Date" means the date that is five Business Days after the
date that is (i) if the terms of Section 5.01(b)(i)(A) and Section
5.01(b)(i)(B)(2) are applicable, two Business Days after the Date of Breach if
the Seller fails to make the deposit required by Section 5.01(b)(i)(B)(2) or 90
days after the Date of Breach if the Seller makes the deposit required by
Section 5.01(b)(i)(B)(2); (ii) if the terms of Section 5.01(b)(ii) are
applicable, 90 days after the Date of Breach; and (iii) if the terms of Section
5.01(b)(i)(A) and Section 5.01(b)(i)(B)(1) are applicable, 90 days after the
Date of Breach.
"Required Overcollateralization Level" has the meaning specified in
Section 1.01(a) of the Note Indenture.
"Repurchase Price" has the meaning specified in Section 5.01(b)(i).
"RTC Charge" means the portion (which may become all) of the Seller's
Transition Charge designated pursuant to the Financing Order as the RTC Charge,
as the same may be adjusted from time to time as provided in the Financing
Order, and may in the future include a pro rata component of any exit fee
collected pursuant to Section 1G(g) of Chapter 164 of the Massachusetts General
Laws.
"RTC Charge Collections" has the meaning specified in Section 1.01 of
the Servicing Agreement.
"Seller" has the meaning set forth in the preamble of this Agreement.
"Servicer Default" means an event specified in Section 7.01 of the
Servicing Agreement.
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"Servicing Agreement" means the Transition Property Servicing Agreement
dated as of July 29, 1999 between Boston Edison Company, as Servicer, and the
Note Issuer, as amended and supplemented from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor.
"Statute" means Chapter 164 of the Massachusetts Acts of 1997, entitled
An Act Relative to Restructuring the Electric Utility Industry in the
Commonwealth, Regulating the Provision of Electricity and Other Services, and
Promoting Enhanced Consumer Protections Therein.
"Transition Charge" means the "access charge" as defined in Boston
Edison Company's Restructuring Settlement Agreement, D.P.U. Docket Nos. 96-100
and 96-23 and subsequent filings with the DTE pursuant thereto.
"Transition Property" means the transition property that exists under
paragraph 7 of the Financing Order.
"Trust" or "Certificate Issuer" means Massachusetts RRB Special Purpose
Trust BEC-1, a Delaware business trust.
"Underwriting Agreement" means the Underwriting Agreement dated as of
July 22, 1999 among Boston Edison Company, the Note Issuer and the underwriters
named therein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) The words "hereof," "herein," "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section, Schedule and
Exhibit references contained in this Agreement are references to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation".
(c) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms.
ARTICLE II. CONVEYANCE OF TRANSITION PROPERTY
Section 2.01. Conveyance of Transition Property. In consideration of
the Note Issuer's delivery to or upon the order of the Seller of $724,755,142
net of underwriting discounts and
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other fees and expenses, the Seller does hereby irrevocably sell, transfer,
assign, set over and otherwise convey to the Note Issuer, WITHOUT RECOURSE OR
WARRANTY, except as specifically set forth herein, all right, title and interest
of the Seller in and to the Transition Property (such sale, transfer,
assignment, setting over and conveyance of the Transition Property includes, to
the fullest extent permitted by the Statute, the assignment of all revenues,
collections, claims, payments, money or proceeds of or arising from the RTC
Charge pursuant to the Financing Order). Such sale, transfer, assignment,
setting over and conveyance is hereby expressly stated to be a sale and,
pursuant to Section 1H(f)(1) of Chapter 164 of the Massachusetts General Laws,
shall be treated as an absolute transfer of all of the Seller's right, title and
interest in (as in a true sale), and not as a pledge or other financing of, the
Transition Property. If such sale, transfer, assignment, setting over and
conveyance is held by any court of competent jurisdiction not to be a true sale
as provided in Section 1H(f)(1) of Chapter 164 of the Massachusetts General
Laws, then such sale, transfer, assignment, setting over and conveyance shall be
treated as the creation of a security interest in the Transition Property and,
without prejudice to its position that it has absolutely transferred all of its
rights in the Transition Property to the Note Issuer, the Seller hereby grants a
security interest in the Transition Property to the Note Issuer (the "Back-Up
Security Interest").
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to Section 3.09 hereof, the Seller makes the following
representations and warranties, as of the Closing Date, on which the Note Issuer
has relied in acquiring the Transition Property.
Section 3.01. Organization and Good Standing. The Seller is duly
organized and validly existing as a corporation in good standing under the laws
of The Commonwealth of Massachusetts, with the requisite corporate power and
authority to own its properties as such properties are currently owned and to
conduct its business as such business is now conducted by it, and has the
requisite corporate power and authority to own the Transition Property.
Section 3.02. Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, licenses or approvals (except where the failure to so qualify or
obtain such licenses and approvals would not be reasonably likely to have a
material adverse effect on the Seller's business, operations, assets, revenues
or properties).
Section 3.03. Power and Authority. The Seller has the requisite
corporate power and authority to execute and deliver this Agreement and to carry
out its terms; and the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Seller.
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Section 3.04. Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Seller enforceable against it in accordance
with its terms, subject to applicable insolvency, reorganization, moratorium,
fraudulent transfer and other laws relating to or affecting creditors' or
secured parties' rights generally from time to time in effect and to general
principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law.
Section 3.05. No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not:
(i) conflict with or result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a default under, the
articles of organization or by-laws of the Seller, or any material indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound; (ii) result in the creation or imposition of any Lien upon any of the
Seller's properties pursuant to the terms of any such indenture, agreement or
other instrument (other than any Lien that may be granted under the Basic
Documents or any Lien created pursuant to Section 1H(e) of Chapter 164 of the
Massachusetts General Laws); or (iii) violate any existing law or any existing
order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
Section 3.06. No Proceedings. There are no proceedings pending and, to
the Seller's knowledge, there are no proceedings threatened and, to the Seller's
knowledge, there are no investigations pending or threatened, before any court,
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties involving
or relating to the Seller or the Note Issuer or, to the Seller's knowledge, any
other Person: (i) asserting the invalidity of this Agreement, any of the other
Basic Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic Documents,
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement, any of the other Basic Documents, the
Notes or the Certificates or (iv) seeking to adversely affect the federal or
state income tax classification of the Notes or the Certificates as debt.
Section 3.07. Approvals. No approval, authorization, consent, order or
other action of, or filing with, any court, federal or state regulatory body,
administrative agency or other governmental instrumentality is required in
connection with the execution and delivery by the Seller of this Agreement, the
performance by the Seller of the transactions contemplated hereby or the
fulfillment by the Seller of the terms hereof, except those that have been
obtained or made and those that the Seller, in its capacity as Servicer under
the Servicing Agreement, is required to make in the future pursuant to the
Servicing Agreement.
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Section 3.08. The Transition Property.
(a) Title. It is the intention of the parties hereto that the transfer
and assignment herein contemplated constitute a sale of the Transition Property
from the Seller to the Note Issuer and that no interest in, or title to, the
Transition Property shall be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any bankruptcy
law. No portion of the Transition Property has been sold, transferred, assigned
or pledged by the Seller to any Person other than the Note Issuer. On the
Closing Date, immediately upon the sale hereunder, the Seller has transferred,
sold and conveyed the Transition Property to the Note Issuer, free and clear of
all Liens, except for any Lien created pursuant to Section 1H(e) of Chapter 164
of the Massachusetts General Laws and any Lien that may be granted under the
Basic Documents, and pursuant to Section 1H(f)(1) of Chapter 164 of the
Massachusetts General Laws such transfer shall be treated as an absolute
transfer of all of the Seller's right, title and interest (as in a true sale),
and not as a pledge or other financing of, the Transition Property.
(b) Transfer Filings. On the Closing Date, immediately upon the sale
hereunder, the Transition Property has been validly transferred and sold to the
Note Issuer, the Note Issuer shall own all such Transition Property free and
clear of all Liens (except for any Lien created pursuant to Section 1H(e) of
Chapter 164 of the Massachusetts General Laws and any Lien that may be granted
under the Basic Documents) and all filings to be made by the Seller (including
filings with the DTE under the Statute) necessary in any jurisdiction to give
the Note Issuer an ownership interest (subject to any Lien created pursuant to
Section 1H(e) of Chapter 164 of the Massachusetts General Laws and any Lien that
may be granted under the Basic Documents) in the Transition Property have been
made. No further action is required to maintain such ownership interest (subject
to any Lien created pursuant to Section 1H(e) of Chapter 164 of the
Massachusetts General Laws and any Lien that may be granted under the Basic
Documents). Filings have also been made to the extent required by Massachusetts
General Laws Chapter 106, Sections 9-403(2)-(3), 9-306, 9-402(7) and 9-103 to
perfect the Back-Up Security Interest granted by the Seller to the Note Issuer
(subject to any Lien created pursuant to Section 1H(e) of Chapter 164 of the
Massachusetts General Laws and any Lien that may be granted under the Basic
Documents).
(c) Financing Order and Issuance Advice Letter; Other Approvals. On the
Closing Date, under the laws of The Commonwealth of Massachusetts and the United
States in effect on the Closing Date, (i) the Financing Order pursuant to which
the Transition Property has been created is in full force and effect; (ii) the
Certificateholders are entitled to the protections of the Statute and,
accordingly, the Financing Order is not revocable by the DTE; (iii) The
Commonwealth of Massachusetts may not alter the provisions of the Statute that
make the RTC Charge irrevocable and binding, limit or alter the Transition
Property or the Financing Order, and all rights thereunder, in a manner that
would substantially impair the rights of the Certificateholders, absent a
demonstration by The Commonwealth of Massachusetts that an impairment is
narrowly-tailored and is necessary to advance an important public interest, such
as a "great public calamity" until the Certificates, together with interest
thereon, are fully met and
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discharged; (iv) the DTE may not, either by rescinding, altering or amending the
Financing Order, in any way reduce or impair the value of the Transition
Property either directly or indirectly by taking reimbursable transition costs
amounts into account when setting other rates for the Seller, in a manner that
would substantially impair the rights of Certificateholders, absent a
demonstration by The Commonwealth of Massachusetts that an impairment is
narrowly-tailored and is necessary to advance an important public interest,
such as a "great public calamity", until the Certificates, together with
interest thereon, are fully met and discharged; (v) the process by which the
Financing Order was adopted and approved, and the Financing Order and Issuance
Advice Letter themselves, comply with all applicable laws, rules and
regulations; (vi) the Issuance Advice Letter has been filed in accordance with
the Financing Order; and (vii) no other approval, authorization, consent, order
or other action of, or filing with, any court, Federal or state regulatory body,
administrative agency or other governmental instrumentality is required in
connection with the creation or sale of the Transition Property, except those
that have been obtained or made.
(d) Assumptions. On the Closing Date, based upon the information
available to the Seller on the Closing Date, the assumptions used in calculating
the initial RTC Charge are reasonable and are made in good faith.
Notwithstanding the foregoing, the Seller makes no representation or warranty
that the assumptions used in calculating such RTC Charge will in fact be
realized.
(e) Creation of Transition Property. Upon the effectiveness of the
Financing Order and the Issuance Advice Letter: (i) all of the Transition
Property constitutes an existing property right; (ii) the Transition Property
includes the right, title and interest in and to all revenues, collections,
claims, payments, money, or proceeds of or arising from the RTC Charge, as
adjusted from time to time pursuant to the Financing Order, and all rights to
obtain adjustments to the RTC Charge pursuant to the Financing Order; and (iii)
the owner of the Transition Property is legally entitled to collect payments in
respect of the RTC Charge in the aggregate sufficient to pay the interest on and
principal of the Notes, to pay the fees and expenses of servicing the Notes and
the Certificates, to replenish the Capital Subaccount to the Required Capital
Level and to fund the Overcollateralization Subaccount to the Required
Overcollateralization Level until the Notes and the Certificates are paid in
full. Notwithstanding the foregoing, the Seller makes no representation or
warranty that any amounts actually collected in respect of the RTC Charge will
in fact be sufficient to meet payment obligations with respect to the Notes and
the Certificates.
(f) Prospectus. As of the date hereof, the information describing the
Seller in "The Seller and Servicer" section of the prospectus dated July 26,
1999 offering the Notes and the Certificates is correct in all material
respects.
Section 3.09. Limitations on Representations and Warranties. Without
prejudice to any of the other rights of the parties, the Seller will not be in
breach of any representation or warranty as a result of a change in law by means
of a legislative enactment, constitutional amendment or
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voter initiative. Notwithstanding anything to the contrary in this Agreement,
the Seller makes no representation or warranty that any amounts actually
collected in respect of the RTC Charge will in fact be sufficient to meet
payment obligations with respect to the Notes and the Certificates or that the
assumptions used in calculating the RTC Charge will in fact be realized nor
shall the Seller be obligated to reduce, or accept a reduction of, any rates or
charges to which it would otherwise be entitled in respect of services rendered
or to be rendered to Customers in order to permit the payment of the RTC Charge.
ARTICLE IV. COVENANTS OF THE SELLER
Section 4.01. Corporate Existence. So long as any of the Notes are
outstanding, the Seller (a) will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of its
organization and (b) will obtain and preserve its qualification to do business,
in each case to the extent that in each such jurisdiction such existence or
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents to which the Seller
is a party and each other instrument or agreement necessary or appropriate to
the proper administration of this Agreement and the transactions contemplated
hereby.
Section 4.02. No Liens. Except for the conveyances hereunder or any
Lien under Section 1H(e) of Chapter 164 of the Massachusetts General Laws or for
the benefit of the Note Issuer, the Seller will not sell, pledge, assign or
transfer, or grant, create, or incur any Lien on, any of the Transition
Property, or any interest therein, and the Seller shall defend the right, title
and interest of the Note Issuer and the Note Trustee in, to and under the
Transition Property against all claims of third parties claiming through or
under the Seller. Boston Edison Company, in its capacity as Seller, will not at
any time assert any Lien against, or with respect to, any of the Transition
Property.
Section 4.03. Delivery of Collections. If the Seller receives any
payments in respect of the RTC Charge or the proceeds thereof when it is not
acting as the Servicer, the Seller agrees to pay to the Servicer all payments
received by it in respect thereof as soon as practicable after receipt thereof
by it.
Section 4.04. Notice of Liens. The Seller shall notify the Note Issuer
and the Note Trustee promptly after becoming aware of any Lien on any of the
Transition Property, other than the conveyances hereunder, any Lien under the
Basic Documents or any Lien under Section 1H(e) of Chapter 164 of the
Massachusetts General Laws or for the benefit of the Note Issuer.
Section 4.05. Compliance with Law. The Seller hereby agrees to comply
with its organizational and governing documents and all laws, treaties, rules,
regulations and determinations of any governmental instrumentality applicable to
it, except to the extent that failure to so comply would not adversely affect
the Note Issuer's or the Note Trustee's interests in the Transition Property or
under any of the other Basic Documents to which the Seller is party or
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the Seller's performance of its obligations hereunder or under any of the other
Basic Documents to which it is party.
Section 4.06. Covenants Related to Notes and Transition Property.
(a) So long as any of the Notes are outstanding, the Seller shall treat
the Notes as debt of the Note Issuer and not of the Seller, except for financial
accounting or tax reporting purposes.
(b) So long as any of the Notes are outstanding, the Seller shall
indicate in its financial statements that it is not the owner of the Transition
Property.
(c) So long as any of the Notes or Certificates are outstanding, the
Seller shall not own or purchase any Notes or Certificates.
(d) The Seller agrees that, upon the sale by the Seller of the
Transition Property to the Note Issuer pursuant to this Agreement, (i) to the
fullest extent permitted by law, including applicable DTE Regulations, the Note
Issuer shall have all of the rights originally held by the Seller with respect
to the Transition Property, including the right (subject to the terms of the
Servicing Agreement) to exercise any and all rights and remedies to collect any
amounts payable by any Customer in respect of the Transition Property,
notwithstanding any objection or direction to the contrary by the Seller and
(ii) any payment by any Customer to the Note Issuer shall discharge such
Customer's obligations in respect of the Transition Property to the extent of
such payment, notwithstanding any objection or direction to the contrary by the
Seller.
(e) So long as any of the Notes are outstanding, (i) the Seller shall
not make any statement or reference in respect of the Transition Property that
is inconsistent with the ownership interest of the Note Issuer (other than for
financial accounting or tax reporting purposes), and (ii) the Seller shall not
take any action in respect of the Transition Property except solely in its
capacity as the Servicer thereof pursuant to the Servicing Agreement or as
otherwise contemplated by the Basic Documents.
Section 4.07. Protection of Title. The Seller shall execute and file
such filings, including filings with the DTE pursuant to the Statute and Uniform
Commercial Code continuation statements, and cause to be executed and filed such
filings, all in such manner and in such places as may be required by law fully
to preserve, maintain and protect the ownership interest of the Note Issuer in
the Transition Property, including all filings required under the Statute
relating to the transfer of the ownership interest in the Transition Property by
the Seller to the Note Issuer and the continued perfection of such ownership
interest. The Seller shall deliver (or cause to be delivered) to the Note Issuer
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. The Seller shall institute
any action or proceeding necessary to compel performance by the DTE or The
Commonwealth of Massachusetts of any of their obligations or duties under the
Statute or the Financing Order, and the Seller agrees to take such legal or
administrative actions, including
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defending against or instituting and pursuing legal actions and appearing or
testifying at hearings or similar proceedings, as may be reasonably necessary to
protect the Note Issuer, the Noteholders, the Certificateholders and the
Agencies from claims, state actions or other actions or proceedings of third
parties which, if successfully pursued, would result in a breach of any
representation set forth in Article III. The costs of any such actions or
proceedings shall be payable from RTC Charge Collections as an Operating Expense
in accordance with the priorities set forth in Section 8.02(d) of the Note
Indenture. The Seller's obligations pursuant to this Section 4.07 shall survive
and continue notwithstanding the fact that the payment of Operating Expenses
pursuant to Section 8.02(d) of the Note Indenture may be delayed (it being
understood that the Seller may be required to advance its own funds to satisfy
its obligations hereunder).
Section 4.08. 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 pursuant to Section 1H(d)(5)
of the Statute, the Seller shall not, prior to the date which is one year and
one day after the termination of the Note Indenture, petition or otherwise
invoke or cause the Note Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Note
Issuer under any Federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Note Issuer or any substantial part of the
property of the Note Issuer, or ordering the winding up or liquidation of the
affairs of the Note Issuer.
Section 4.09. Taxes. So long as any of the Notes are outstanding, the
Seller shall, and shall cause each of its subsidiaries to, pay all material
taxes, assessments and governmental charges imposed upon it or any of its
properties or assets or with respect to any of its franchises, business, income
or property before any penalty accrues thereon if the failure to pay any such
taxes, assessments and governmental charges would, after any applicable grace
periods, notices or other similar requirements, result in a lien on the
Transition Property; provided that no such tax need be paid if the Seller or one
of its subsidiaries is contesting the same in good faith by appropriate
proceedings promptly instituted and diligently conducted and if the Seller or
such subsidiary has established appropriate reserves as shall be required in
conformity with generally accepted accounting principles.
Section 4.10. Additional Sales of Transition Property. So long as any
of the Notes are outstanding, the Seller shall not sell any transition property
(as defined in the Statute) to secure another issuance of electric rate
reduction bonds (as defined in the Statute) if it would cause the then existing
ratings on the Certificates from the Rating Agencies to be downgraded.
Section 4.11. Issuance Advice Letter. The Seller hereby agrees not to
withdraw the filing of the Issuance Advice Letter with the DTE.
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ARTICLE V. THE SELLER
Section 5.01. Liability of Seller; Indemnities.
(a) The Seller shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Seller under this
Agreement.
(b) (i) In the event of a breach by the Seller of any representation
and warranty specified in Sections 3.08(c) or 3.08(e) that has a material
adverse effect on the Certificateholders, the Seller shall repurchase the
Transition Property from the Note Issuer at a purchase price equal to the then
outstanding principal amount of the Notes and all accrued and unpaid interest
thereon, excluding any premium or penalty of any kind (the "Repurchase Price"),
as of the Repurchase Date; provided, however, that the Seller shall not be
obligated to repurchase the Transition Property if (A) within 90 days after the
date of occurrence thereof such breach is cured or the Seller takes remedial
action such that there is not and will not be a material adverse effect on the
Certificateholders as a result of such breach and (B) either (1) if the Seller
had, immediately prior to the breach, a long term debt rating of at least "A3"
by Moody's and "BBB" by S&P or the equivalent of "BBB" by any other Rating
Agency, and the Seller enters into a binding agreement with the Note Issuer to
pay any amounts necessary so that all interest payments due on the Notes during
such 90-day period will be paid in full, or (2) if the Seller does not have such
long term debt ratings, the Seller deposits, within two Business Days after such
breach, an amount in escrow with the Note Trustee sufficient, taking into
account amounts on deposit in the Collection Account which will be available for
such purpose, to pay all interest payments which will become due on the Notes
during such 90-day period.
(ii) In the event of a breach by the Seller of any
representation and warranty specified in Sections 3.01, 3.03, 3.04, 3.05,
3.08(a) or 3.08(b) that has a material adverse effect on the Certificateholders,
if within 90 days after the date of occurrence thereof such breach has not been
cured or the Seller has not taken remedial action such that there is not and
will not be a material adverse effect on the Certificateholders as a result of
such breach, then the Seller shall repurchase the Transition Property from the
Note Issuer for the Repurchase Price on the Repurchase Date.
(iii) Notwithstanding any other provision of this Agreement,
upon the payment by the Seller of the Repurchase Price pursuant to this Section
5.01(b), neither the Note Issuer nor any other Person shall have any other
claims, rights or remedies against the Seller under, arising from or with
respect to this Agreement, except as set forth in Section 5.01(h).
(c) The Seller shall indemnify the Note Issuer, the Note Trustee, the
Certificate Trustee, the Delaware Trustee, the Agencies, the Certificate Issuer,
the Noteholders and the Certificateholders for, and defend and hold harmless
each such Person from and against, any and all taxes (other than taxes imposed
on Noteholders or Certificateholders solely as a result of their
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ownership of Notes or Certificates, respectively) that may at any time be
imposed on or asserted against any such Person under existing law as of the
Closing Date as a result of the sale of the Transition Property to the Note
Issuer, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes; provided, however, that the
Noteholders and the Certificateholders shall be entitled to enforce their rights
against the Seller under this Section 5.01(c) solely through a cause of action
brought for their benefit by the Note Trustee or the Certificate Trustee, as the
case may be.
(d) The Seller shall indemnify the Note Issuer, the Note Trustee, the
Certificate Trustee, the Delaware Trustee, the Agencies, the Certificate Issuer,
the Noteholders and the Certificateholders for, and defend and hold harmless
each such Person from and against, any and all taxes that may be imposed on or
asserted against any such Person under existing law as of the Closing Date as a
result of the issuance and sale by the Note Issuer of the Notes, the issuance
and sale by the Trust of the Certificates or the other transactions contemplated
herein, including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes; provided, however, that the
Noteholders and the Certificateholders shall be entitled to enforce their rights
against the Seller under this Section 5.01(d) solely through a cause of action
brought for their benefit by the Note Trustee or the Certificate Trustee, as the
case may be. The Seller shall be reimbursed for any payments under this Section
5.01(d) from RTC Charge Collections as an Operating Expense in accordance with
the priorities set forth in Section 8.02(d) of the Note Indenture.
(e) The Seller shall indemnify the Note Issuer, the Noteholders and the
Certificateholders for, and defend and hold harmless each such Person from and
against, any and all liabilities, obligations, losses, actions, suits, claims,
damages, payments, costs or expenses of any kind whatsoever (collectively,
"Losses") that may be imposed on, incurred by or asserted against each such
Person as a result of (i) the Seller's willful misconduct or gross negligence in
the performance of its duties or observance of its covenants under this
Agreement, or (ii) the Seller's breach in any material respect of any of its
representations and warranties contained in this Agreement (other than the
representations and warranties specified in Sections 3.01, 3.03, 3.04, 3.05,
3.08(a), 3.08(b), 3.08(c) or 3.08(e), the breach of which are subject to the
repurchase obligation set forth in Section 5.01(b)), except in the case of both
clauses (i) and (ii) to the extent of Losses either resulting from the willful
misconduct or gross negligence of such indemnified person or resulting from a
breach of a representation and warranty made by such indemnified person in any
of the Basic Documents that gives rise to the Seller's breach; provided,
however, that the Noteholders and the Certificateholders shall be entitled to
enforce their rights against the Seller 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; provided, further, that the Seller may,
at its election and in full satisfaction of its obligations under this Section
5.01(e), repurchase the Transition Property at the Repurchase Price, in which
case neither the Note Issuer nor any other Person shall have any other claims,
rights or remedies against the Seller under, arising from or with respect to
this Agreement, except as set forth in Section 5.01(h).
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(f) Indemnification under Sections 5.01(c), 5.01(d), 5.01(e) and
5.01(h) shall include reasonable fees and out-of-pocket expenses of
investigation and litigation (including reasonable attorneys' fees and
expenses), except as otherwise provided in this Agreement.
(g) Without prejudice to any of the other rights of the parties, the
Seller will not be in breach of any representation or warranty as a result of a
change in law by means of a legislative enactment, constitutional amendment or
voter initiative. Notwithstanding anything to the contrary in this Agreement,
the Seller makes no representation or warranty that any amounts actually
collected in respect of the RTC Charge will in fact be sufficient to meet
payment obligations with respect to the Notes and the Certificates or that the
assumptions used in calculating the RTC Charge will in fact be realized nor
shall the Seller be obligated to reduce, or accept a reduction of, any rates or
charges to which it would otherwise be entitled in respect of services rendered
or to be rendered to customers in order to permit the payment of the RTC Charge.
(h) The Seller shall indemnify and hold harmless the Note Trustee, the
Delaware Trustee, the Certificate Trustee, the Certificate Issuer, the Agencies
and any of their respective affiliates, officers, directors, employees and
agents (each an "Indemnified Person") against any and all Losses incurred by any
of such Indemnified Persons as a result of (i) the Seller's willful misconduct
or gross negligence in the performance of its duties or observance of its
covenants under this Agreement or (ii) the Seller's breach in any material
respect of any of its representations and warranties contained in this
Agreement, except in the case of both clauses (i) and (ii) to the extent of
Losses either resulting from the willful misconduct or gross negligence of such
Indemnified Person or resulting from a breach of a representation or warranty
made by such Indemnified Person in any of the Basic Documents that gives rise to
the Seller's breach. The Seller 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 Seller, 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 Seller
under this Section 5.01(h), notify the Seller in writing of such involvement.
Failure by an Indemnified Person to so notify the Seller shall relieve the
Seller from the obligation to indemnify and hold harmless such Indemnified
Person under this Section 5.01(h) only to the extent that the Seller 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 5.01(h), the Seller shall be entitled to assume
the defense of any such action, proceeding or investigation. Upon assumption by
the Seller 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 Seller shall be entitled to
appoint counsel of the Seller's choice at the Seller's expense to represent the
Indemnified Person in any action, proceeding or investigation for which a claim
of indemnification is made against the Seller under this Section 5.01(h) (in
which case the Seller shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by
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the Indemnified Person except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding the Seller'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 Seller shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the Seller 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 Seller 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
Seller, (iii) the Seller 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
Seller shall authorize the Indemnified Person to employ separate counsel at the
expense of the Seller. Notwithstanding the foregoing, the Seller shall not be
obligated to pay for the fees, costs and expenses of more than one separate
counsel for the Indemnified Persons other than local counsel. The Seller 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 5.01(h) (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.
(i) The remedies of the Note Issuer, the Noteholders and the
Certificateholders provided in this Agreement are each such Person's sole and
exclusive remedies against the Seller for breach of its representations and
warranties in this Agreement.
(j) For purposes of this Section 5.01, the term "Agencies" shall
include the Executive Office for Administration and Finance of The Commonwealth
of Massachusetts.
Section 5.02. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which the Seller may be merged or
consolidated, (b) that may result from any merger or consolidation to which the
Seller shall be a party or (c) that may succeed to the properties and assets of
the Seller substantially as a whole, which Person in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Seller
hereunder, shall be the successor to the Seller under this Agreement without
further act on the part of any of the parties to this Agreement; provided,
however, that (i) if the Seller is the Servicer, no Servicer Default, and no
event which, after notice or lapse of time, or both, would become a Servicer
Default shall have occurred and be continuing, (ii) the Seller shall have
delivered to the Note Issuer and the Note Trustee an Officers' Certificate
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Seller shall have delivered to the Note Issuer and the Note
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all filings to be made by the
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Seller, including filings with the DTE pursuant to the Statute, have been
executed and filed that are necessary to fully preserve and protect the interest
of the Note Issuer in the Transition Property and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests and (iv) the Rating
Agencies shall have received prior written notice of such transaction. When any
Person acquires the properties and assets of the Seller substantially as a whole
and becomes the successor to the Seller in accordance with the terms of this
Section 5.02, then upon satisfaction of all of the other conditions of this
Section 5.02, the Seller shall automatically and without further notice be
released from all of its obligations hereunder.
Section 5.03. Limitation on Liability of Seller and Others. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person, respecting any matters arising
hereunder.
ARTICLE VI. MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended by the Seller
and the Note Issuer, with ten Business Days' prior written notice given to the
Rating Agencies and the prior written consent of the Note Trustee, but without
the consent of any of the Noteholders, 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;
provided, however, that such action shall not, as evidenced by an Officer's
Certificate delivered to the Note Issuer and the Note Trustee, adversely affect
in any material respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the Seller and
the Note Issuer, with ten Business Days' prior written notice given to the
Rating Agencies and the prior written consent of the Note Trustee and the prior
written consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes affected thereby, 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.
It shall not be necessary for the consent of Noteholders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
Prior to the execution of any amendment to this Agreement, the Note
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of 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.
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Section 6.02. Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this 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:
(a) if to the Seller, to
Boston Edison Company
800 Boylston Street
Boston, MA 02199
Attention: Manager, Corporate Finance
Facsimile: (617) 424-3204
Telephone: (617) 424-2000
(b) if to the Note Issuer, to
BEC Funding LLC
800 Boylston Street, 35th Floor
Boston, MA 02199
Attention: President
Facsimile: (617) 424-2605
Telephone: (617) 369-6000
(c) if to the Note Trustee, to
The Bank of New York
101 Barclay Street, Floor 12 East
New York, NY 10286
Attention: Asset Backed Finance Unit
Facsimile: (212) 815-5544
Telephone: (212) 815-5286
(d) if to Moody's, to
Moody's Investors Service, Inc.
99 Church Street
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New York, NY 10007
Attention: ABS Monitoring Department
Facsimile: (212) 553-0573
Telephone: (212) 553-3686
(e) if to S&P, to
Standard & Poor's
55 Water Street, 40th Floor
New York, NY 10041
Attention: Asset Backed Surveillance Department
Facsimile: (212) 438-2655
Telephone: (212) 438-2000
(f) if to Fitch IBCA, to
Fitch IBCA, Inc.
One State Street Plaza
New York, NY 10004
Attention: ABS Surveillance
Facsimile: (212) 908-0355
Telephone: (212) 908-0500
(g) if to Duff & Phelps, to
Duff & Phelps Credit Rating Co.
17 State Street, 12th Floor
New York, NY 10004
Attention: Asset-Backed Monitoring Group
Facsimile: (212) 908-0222
Telephone: (212) 908-0200
(h) if to the Agencies, to:
Massachusetts Development Finance Agency
75 Federal Street
Boston, MA 02110
Attention: General Counsel
Facsimile: (617) 727-8741
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Telephone: (617) 451-2477
and
Massachusetts Health and Educational Facilities Authority
99 Summer Street, 10th Floor
Boston, MA 02110
Attention: General Counsel
Facsimile: (617) 737-8366
Telephone: (617) 737-8377
(i) if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for
Massachusetts RRB Special Purpose Trust BEC-1
c/o The Bank of New York
101 Barclay Street, Floor 12 East
New York, NY 10286
Attention: Asset Backed Finance Unit
Facsimile: (212) 815-5544
Telephone: (212) 815-5286
(with copies to the Agencies at the addresses listed herein)
(j) as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section 6.03. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.02, this Agreement may not be
assigned by the Seller.
Section 6.04. Limitations on Rights of Third Parties. The provisions of
this Agreement are solely for the benefit of the Seller, the Note Issuer, the
Noteholders, the Certificateholders, the Note Trustee, the Certificate Trustee,
the Delaware Trustee, the Agencies, the Certificate Issuer and the other Persons
expressly referred to herein, and such Persons shall have the right to enforce
the relevant provisions of this Agreement, except that the Noteholders and the
Certificateholders shall be entitled to enforce their rights against the Seller
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. 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.
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Section 6.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
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 6.06. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 6.07. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 6.08. 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.
Section 6.09. Assignment to Note Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Note Issuer to the Note Trustee pursuant to the Note
Indenture for the benefit of the Noteholders of all right, title and interest of
the Note Issuer in, to and under the Transition Property and the proceeds
thereof and the assignment of any or all of the Note Issuer's rights and
obligations hereunder to the Note Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Transition
Property Purchase and Sale Agreement to be duly executed by their respective
officers as of the day and year first above written.
BEC FUNDING LLC,
Note Issuer
By: /s/ Emilie G. O'Neil
-------------------------------------
Name: Emilie G. O'Neil
Title: Vice President and Treasurer
BOSTON EDISON COMPANY,
Seller
By: /s/ R. J. Weafer, Jr.
-------------------------------------
Name: Robert J. Weafer, Jr.
Title: Vice President - Finance and
Controller
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