|
Exhibit 10.3.2
EXECUTION COPY
CEC FUNDING,
LLC,
as Note
Issuer
and
MASSACHUSETTS RRB SPECIAL
PURPOSE TRUST 2005-1,
as Certificate
Issuer
NOTE PURCHASE
AGREEMENT
Dated as of March 1,
2005
NOTE PURCHASE
AGREEMENT (this “Agreement”) dated as of March 1,
2005, between CEC FUNDING, LLC, a Delaware limited liability
company (the “Note Issuer”), and MASSACHUSETTS RRB
SPECIAL PURPOSE TRUST 2005-1, a Delaware statutory 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 March 1, 2005, 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 $409,000,000 in principal amount of
CEC 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
February 15, 2005 (the “Underwriting Agreement”), among
Boston Edison Company, the Note Issuer, Commonwealth Electric
Company, BEC Funding II, LLC, and Lehman Brothers Inc. and Goldman,
Sachs & Co.
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. All 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. 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. 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. 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. 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. 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 company 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. This Agreement has been
duly authorized, executed and delivered by the Note
Issuer.
-2-
c. 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. 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 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. 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, 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. 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
-3-
subject, which might result,
singly or in the aggregate, in a material
| 
