P&D Draft
5/3/01
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WMECO FUNDING LLC,
AS NOTE ISSUER
AND
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1,
AS CERTIFICATE ISSUER
------------------------
NOTE PURCHASE AGREEMENT
DATED AS OF MAY 17, 2001
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NOTE PURCHASE AGREEMENT (this "Agreement") dated as of May 17, 2001,
between WMECO FUNDING LLC, a Delaware limited liability company (the "Note
Issuer"), and Massachusetts rrb Special Purpose Trust WMECO-1, a Delaware
business trust (the "Certificate Issuer ") formed under the Declaration of
Trust.
RECITALS
A. Capitalized terms used herein without definition shall have the
meanings ascribed to them in that certain Note Indenture (the "Note Indenture"),
dated as of May 17, 2001, between Note Issuer and The Bank of New York, a New
York banking corporation, as trustee (the "Note Trustee"), which is incorporated
herein by this reference.
B. On the Issuance Date, and on the terms set forth herein, the Note
Issuer has agreed to sell to the Certificate Issuer and the Certificate Issuer
has agreed to purchase from the Note Issuer $155,000,000 in principal amount of
WMECO Funding LLC Notes (the "Notes"), issued pursuant to the Note Indenture.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Note Issuer and the Certificate Issuer agree as follows:
1. SALE OF NOTES
a. AUTHORIZATION OF NOTES.
On or before the Issuance Date, the Note Issuer shall have caused to be
authorized pursuant to the Note Indenture the issuance of the Notes in such
classes and principal amounts as set forth in Schedule 1(a) attached hereto and
incorporated herein by this reference.
b. ISSUANCE AND PURCHASE.
On the basis of the representations, warranties and covenants contained
in this Agreement and in the Note Indenture (collectively, the "Note Purchase
Documents"), and subject to the terms and conditions of the Note Purchase
Documents, the Note Issuer agrees to issue and sell to the Certificate Issuer,
and the Certificate Issuer agrees to purchase from the Note Issuer, the Notes
set forth in Schedule 1(a) hereto. The purchase price of each class of Notes is
set forth in Schedule 1(a) attached hereto, and the aggregate purchase price of
the Notes shall be an amount equal to the proceeds net of underwriting discounts
and commissions to the Certificate Issuer set forth in Schedule I to the
Underwriting Agreement dated as of May [__], 2001 (the "Underwriting
Agreement"), among Western Massachusetts Electric Company, the Note Issuer and
the underwriters named therein, for whom ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. are acting as representatives.
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c. DELIVERY.
Delivery of, and payment of the purchase price for the Notes shall be
made by federal wire transfer of immediately available funds as early as
possible after 9:00 a.m. (E.S.T.) on the Issuance Date to an account designated
by the Note Issuer not later than the Business Day prior to the Issuance Date.
2. CONDITIONS PRECEDENT
The obligations of the Certificate Issuer to purchase the Notes under
this Agreement are subject to the satisfaction of each of the following
conditions:
a. REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Note Issuer contained in this Agreement shall be true and
correct in all material respects on the Issuance Date with the same force and
effect as if made on and as of the Issuance Date.
b. RATINGS. Neither the Notes nor the Certificates shall have received
a lower rating by any Rating Agency than that on which the Notes or the
Certificates, respectively, were marketed.
c. OFFICER'S CERTIFICATE. The Certificate Trustee, on behalf of the
Certificate Issuer, shall have received on the Issuance Date an Officer's
Certificate dated the Issuance Date confirming the matters set forth in Sections
2(a) and 2(b).
d. NOTE INDENTURE. The Certificate Trustee, on behalf of the
Certificate Issuer, shall have received a copy of the executed Note Indenture
(certified by an Authorized Officer of the Note Issuer) which shall have been
entered into by the Note Issuer and the Note Trustee.
e. NOTE ISSUER PERFORMANCE. The Note Issuer shall not have failed on or
prior to the Issuance Date to perform or comply in any material respect with any
of the agreements herein contained and required to be performed or complied with
by the Note Issuer on or prior to the Issuance Date.
3. REPRESENTATIONS AND WARRANTIES
To induce the Certificate Issuer to enter into this Agreement and to
purchase the Notes, the Note Issuer represents and warrants to the Certificate
Issuer on the date of this Agreement that the following statements are true and
correct:
a. LEGAL EXISTENCE, ETC. The Note Issuer has been duly formed and is
validly existing and in good standing as a limited liability company under the
laws of the State of Delaware and has the limited liability power and authority
to carry on its business as described in the Registration Statement covering the
Notes (the "Registration Statement") and to own its properties, and is
registered to transact business in The Commonwealth of Massachusetts.
b. DUE AUTHORIZATION. This Agreement has been duly authorized, executed
and delivered by the Note Issuer.
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c. NOTE INDENTURE. The Note Indenture has been duly authorized by the
Note Issuer and, on the Issuance Date, will have been validly executed and
delivered by the Note Issuer. When the Note Indenture has been duly executed and
delivered by the Note Issuer, the Note Indenture will be a valid and binding
agreement of the Note Issuer, enforceable against the Note Issuer in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer and
other laws relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Issuance Date, the Note Indenture will conform in
all material respects to the requirements of the Trust Indenture Act, and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
d. NOTES. The Notes have been duly authorized and, on the Issuance
Date, will have been validly executed and delivered by the Note Issuer. When the
Notes have been issued, executed and authenticated in accordance with the
provisions of the Note Indenture and delivered to and paid for by the
Certificate Issuer in accordance with the terms of this Agreement, the Notes
will be entitled to the benefits of the Note Indenture and will be valid and
binding obligations of the Note Issuer, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization, fraudulent transfer and other laws
relating to or affecting creditors' rights generally and (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
e. NO DEFAULT. No Default or Event of Default under the Note Indenture
would occur as a result of the sale of the Notes pursuant to the terms hereof.
f. NO CONSENTS; NO CONFLICTS. The execution, delivery and performance
of this Agreement and the other Basic Documents by the Note Issuer, compliance
by the Note Issuer with all provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as has been obtained or may be
required under the laws of The Commonwealth of Massachusetts, the Statute, the
Securities Act, the Public Utilities Holding Company Act of 1935, as amended
(the "1935 Act") or the securities or blue sky laws of the various states), (ii)
conflict with or constitute a material breach of any of the terms or provisions
of, or a default under, the limited liability company agreement of the Note
Issuer, (iii) violate or conflict in any material respect with any applicable
law or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Note Issuer or its
property, (iv) result in the imposition or creation of a lien under, any
agreement or instrument to which the Note Issuer is a party or by which the Note
Issuer or its respective property is bound, except as may be created or imposed
under the Basic Documents and any statutory lien under Section 1H(e) of the
Statute.
g. NO PROCEEDINGS. To the best knowledge of the Note Issuer, there are
no legal or governmental proceedings pending or threatened to which the Note
Issuer is or reasonably could be a party or to which any of its property is or
reasonably could be subject, which might result, singly or in the aggregate, in
a material adverse effect on the enforceability of the Notes.
h. INVESTMENT COMPANY. The Note Issuer is not and, after giving effect
to the offering and sale of the Notes and the application of the net proceeds
thereof as described in the
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Registration Statement, will not be, an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
i. ▇▇▇▇ ▇▇▇. The Note Issuer is not and, after giving effect to the
offering and sale of the Notes and the application of the net proceeds thereof
as described in the Registration Statement, will not be, a "holding company," as
such term is defined in the 1935 Act.
j. MARGIN RULES. The Note Issuer has not taken any action that might
cause this Agreement or the issuance or sale of the Notes to violate Regulation
T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
k. NO MATERIAL ADVERSE CHANGE. Since the date as of which information
is given in the Registration Statement and other than as set forth in the
Registration Statement (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change in the assets, business, management or operations of the
Note Issuer and (ii) other than the Notes and as contemplated by the Basic
Documents, the Note Issuer has not incurred any material liability or
obligation, direct or contingent.
4. COVENANTS
The Note Issuer covenants and agrees that, until payment in full of the
Notes, unless the Delaware Trustee, on behalf of the Certificate Issuer, shall
otherwise give prior written consent, the Note Issuer shall perform all
covenants in this Section 4.
a. STOP ORDERS, ETC. To advise the Delaware Trustee, as the
representative of the Certificate Issuer, the Agencies and the Certificate
Trustee promptly and, if requested by the Delaware Trustee, on behalf of the
Certificate Issuer, the Agencies or the Certificate Trustee, confirm such advice
in writing, of the issuance by the Commission or any state securities commission
of any stop order or an order suspending the qualification or exemption from
qualification of any Note or Certificate for offering or sale in any
jurisdiction in which the Certificates have been offered or the initiation of
any proceeding by the Commission, any state securities commission or any other
federal or state regulatory authority for such purpose. The Note Issuer shall
use its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Note or Certificate under the
Securities Act, or any state securities or blue sky laws and, if at any time the
Commission or any state securities commission or other federal or state
regulatory authority shall issue a stop order or an order suspending the
qualification or exemption of any Note or Certificate under the Securities Act
or any state securities or blue sky laws, the Note Issuer shall use its
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
b. USURY. To the extent permitted by applicable law, not to claim
voluntarily the benefit of any usury laws against the holders of any Notes. To
the extent permitted by applicable law, to resist actively any attempts to claim
the benefit of any usury laws against the holders of any Notes.
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c. SATISFY CONDITIONS PRECEDENT. To use its best efforts to do and
perform all things required or necessary to be done and performed under this
Agreement by it prior to the Issuance Date and to satisfy all conditions
precedent to the delivery of the Notes.
d. CERTIFICATES AND OPINIONS. At the written request of the Delaware
Trustee on behalf of the Certificate Issuer, the Agencies, or the Certificate
Trustee, to provide, or cause to be provided, to the Delaware Trustee as the
representative of the Certificate Issuer, the Agencies or the Certificate
Trustee, as applicable, a copy of any requested certificate, notice, opinion or
other document delivered by the Note Issuer to the Note Trustee pursuant to the
terms of the Note Indenture.
5. MISCELLANEOUS
a. FEES.
The Note Issuer agrees to reimburse the Certificate Issuer, the
Certificate Trustee, the Delaware Trustee and the Agencies and their respective
officers, directors and each person, if any, who controls the Certificate
Issuer, the Certificate Trustee, the Delaware Trustee or the Agencies within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
for any and all fees and expenses (including without limitation the reasonable
fees and expenses of counsel) reasonably incurred by them in connection with
enforcing their rights under this Agreement (including, without limitation,
their respective rights under this Section 5(a)); provided, however, that the
Note Issuer's obligations pursuant to this Section 5(a) shall be treated as
Operating Expenses under the Note Indenture and shall be payable only to the
extent that funds are available for such Operating Expenses in the priority set
forth in Section 8.02(d) of the Note Indenture.
b. EFFECTIVE DATE OF AGREEMENT.
This Agreement shall become effective upon the execution and delivery
of this Agreement by the parties hereto.
c. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All agreements, representations and warranties made herein shall
survive the execution and delivery of this Agreement and the purchase of the
Notes hereunder. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of the Note Issuer set forth in Section 5(a),
except as otherwise expressly provided therein, shall survive the payment of the
Notes and the termination of this Agreement.
d. NOTICE.
Unless otherwise specifically provided herein, all notices, directions,
consents and waivers required under the terms and provisions of this Note
Purchase Agreement shall be in English and in writing, and any such notice,
direction, consent or waiver may be given by United States mail, courier
service, facsimile transmission or electronic mail (confirmed by telephone,
United States mail or courier service in the case of notice by facsimile
transmission or electronic mail) or any other customary means of communication,
and any such notice, direction, consent
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or waiver shall be effective when delivered, or if mailed, three days after
deposit in the United States mail with proper postage for ordinary mail prepaid,
if to the Agencies, to:
Massachusetts Development Finance Agency
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Massachusetts Health and Educational Facilities Authority
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for the
Massachusetts RRB Special Purpose Trust WMECO-1
▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile: (___) ___-____
Telephone: (___) ___-____
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(with copies to the Agencies at the addresses listed herein)
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if to the Certificate Trustee or the Note Trustee, to:
The Bank of New York, as trustee
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Delaware Trustee, to:
The Bank of New York (Delaware), as trustee
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile: (___) ___-____
Telephone: (___) ___-____
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Note Issuer, to:
WMECO Funding LLC
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Electric Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer-Finance
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇.▇▇▇
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with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇.▇▇▇
e. PARTIES.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of the Note Issuer, the Note Trustee, the Certificate
Issuer, the Certificate Trustee, the Delaware Trustee, the Agencies, the
directors and officers of the Certificate Issuer, the Certificate Trustee, the
Delaware Trustee and the Agencies, any controlling persons referred to herein,
the directors, officers and any manager of the Note Issuer (not in their
individual capacities but in their respective capacities as directors, officers
or manager of the Note Issuer) and their respective successors and assigns, all
as and to the extent provided in this Agreement, all of which Persons shall have
rights of enforcement with respect hereto, and no other Person shall acquire or
have any right under or by virtue of this Agreement, except as contemplated by
the Certificate Indenture and the other Basic Documents. The term "successors
and assigns" shall not include a purchaser of any of the Notes from the
Certificate Issuer merely because of such purchase.
f. GOVERNING LAW.
This Agreement shall be governed by, and shall be construed and
enforced in accordance with, the internal laws of The Commonwealth of
Massachusetts, without regard to its conflict of laws principles.
g. SEVERABILITY.
If any provision of this Agreement shall be prohibited or invalid under
applicable law, the Agreement shall be ineffective only to such extent, without
invalidating the remainder of the Agreement.
h. FURTHER ASSURANCES.
The Note Issuer agrees to execute and deliver such instruments and take
such actions as the Delaware Trustee on behalf of the Certificate Issuer, the
Agencies or the Certificate Trustee may, from time to time, reasonably request
in order to effectuate the purpose and to carry out the terms of this Agreement.
i. HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
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j. COUNTERPARTS.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
k. LIMITATION OF LIABILITY.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by The Bank of New York (Delaware), not
individually or personally but solely as Delaware Trustee on behalf of the
Certificate Issuer, in the exercise of the powers and authority conferred and
vested in it, (b) any representations, undertakings and agreements herein made
by the Delaware Trustee on behalf of the Certificate Issuer are made and
intended not as personal representations, undertakings and agreements by The
Bank of New York (Delaware) but are made and intended for the purpose of binding
only the Certificate Issuer, (c) nothing herein contained shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant either expressed or implied contained
herein, except in its capacity as Delaware Trustee, all such liability, if any,
being expressly waived by the parties who are signatories to this Agreement and
by any Person claiming by, through or under such parties and (d) under no
circumstances shall The Bank of New York (Delaware) be personally liable for the
payment of any indebtedness or expense of the Certificate Issuer or be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Certificate Issuer under this
Agreement; provided, however, that this provision shall not protect The Bank of
New York (Delaware) against any liability that would otherwise be imposed by
reason of willful misconduct, bad faith or negligence in the performance of its
obligations and duties under this Agreement in accordance with the standard of
care set forth in the Declaration of Trust.
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IN WITNESS WHEREOF, the Note Issuer and the Certificate Issuer have
caused this Note Purchase Agreement to be duly executed under seal by their
respective officer or trustee, all as of the day and year first above written.
WMECO FUNDING LLC,
a Delaware limited liability company
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
MASSACHUSETTS RRB SPECIAL
PURPOSE TRUST WMECO-1, a business trust
organized under the laws of the State of
Delaware
By: THE BANK OF NEW YORK
(DELAWARE), as Delaware Trustee
By:
-------------------------------------
Name:
Title:
S-1
SCHEDULE 1(a)
NOTES
CLASS OF NOTES PRINCIPAL AMOUNT PURCHASE PRICE (%)
-------------- ---------------- ------------------
A-1 $ %
Total: $ --------
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