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Execution Copy
ADMINISTRATION AGREEMENT
This Administration Agreement, dated as of July 29, 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 29, 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 29, 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
29, 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 July 22, 1999 (the "Underwriting Agreement"), among the
Note Issuer, Boston Edison Company, and the Underwriters named therein, (iv) the
Note Indenture, (v) a Note Purchase Agreement dated as of July 29, 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 July 29, 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
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 dates, and the amount of defaulted
interest (plus interest on such defaulted interest) to be paid, if any
(Section 2.08(c));
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(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));
(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));
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(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, the
Delaware Trustee or the Certificate 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 pursuant to the Certificate Indenture, the
Declaration of Trust or otherwise, required to be filed on a periodic
basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the 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);
(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);
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(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));
(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
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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 Administrator's
reasonable opinion, no less favorable to the Note Issuer than would be available
from unaffiliated parties.
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Section 1.04 Non-Ministerial Matters. (a) With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless the Administrator shall have
notified the Note Issuer of the proposed action and the Note Issuer shall have
consented. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(1) the amendment of, or any supplement to, the Note
Indenture;
(2) the initiation of any claim or lawsuit by the Note Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Note Issuer (other than in connection with the collection
of the RTC Charge);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor Note Registrars, successor
Paying Agents and successor Note Trustees pursuant to the Note
Indenture or the appointment of successor Administrators or successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Note Trustee of its obligations under the Note
Indenture; and
(5) the removal of the Note Trustee.
(b) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and hereby agrees that
it shall not, take any action that the Note Issuer directs the Administrator not
to take on its behalf.
Section 1.05 Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Note
Issuer and the Note Trustee at any time during normal business hours.
ARTICLE II.
Facilities
Section 1.06 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 800 Boylston Street, Floor 35,
Boston, Massachusetts 02199. All facilities provided to the Note Issuer
hereunder shall be provided without warranty of any kind.
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ARTICLE III.
Compensation
Section 3.01 Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, including the provision of
facilities pursuant to Section 2.01, the Administrator shall be entitled to a
fee of $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
Section 4.01 Additional Information To Be Furnished to Note Issuer. The
Administrator shall furnish to the Note Issuer from time to time such additional
information regarding the Collateral as the Note Issuer shall reasonably
request.
ARTICLE V.
Miscellaneous Provisions
Section 5.01 Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Note Issuer with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Note Issuer, the Administrator shall have no
authority to act for or represent the Note Issuer in any way and shall not
otherwise be deemed an agent of the Note Issuer.
Section 5.02 No Joint Venture. Nothing contained in this Agreement
shall (a) constitute the Administrator and the Note Issuer as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (b) be construed to impose any liability as such on any
of them or (c) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
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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 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.
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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. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Administration Agreement shall be in English and in writing,
and any such notice, direction, consent or waiver may be given by United States
mail, courier service, facsimile transmission or electronic mail (confirmed by
telephone, United States mail or courier service in the case of notice by
facsimile transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the United
States mail with proper postage for ordinary mail prepaid:
(a) 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
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(b) if to the Administrator, to
Boston Edison Company
800 Boylston Street
Boston, MA 02199
Attention: Manager, Corporate Finance
Facsimile: (617) 424-3204
Telephone: (617) 424-2000
(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
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, the Noteholders, the Certificate Trustee, the
Certificateholders, the Delaware Trustee and the Agencies. The Noteholders and
the Certificateholders shall be entitled to enforce their rights and remedies
against the Administrator under this agreement solely through a cause of action
brought for their benefit by the Note Trustee or the Certificate Trustee, as the
case may be, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Transition Property or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein, except for the indemnities
specifically provided in Section 5.15. The Persons listed in this section as
having the benefit of this Agreement and the indemnified Persons listed in
Section 5.15 shall have rights of enforcement with respect this Agreement.
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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.
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 Indemnification. The Administrator shall indemnify the
Note Issuer, the Note Trustee, the Delaware Trustee, the Certificate Trustee,
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, actions, 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 misconduct or gross negligence in the performance of its
duties or observance of its covenants under this Agreement. The Noteholders and
the Certificateholders shall be entitled to enforce their rights and remedies
against the Administrator under this indemnification solely through a cause of
action brought for their benefit by the Note Trustee or the Certificate Trustee,
as the
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case may be. For the purposes of this Section 5.15, the term "Agencies" shall
include the Executive Office for Administration and Finance of The Commonwealth
of Massachusetts.
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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: /s/Emilie G. O'Neil
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Name: Emilie G. O'Neil
Title: Vice President and Treasurer
BOSTON EDISON COMPANY, as Administrator
By: /s/ R. J. Weafer, Jr.
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Name: Robert J. Weafer, Jr.
Title: Vice President - Finance and Controller
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