Exhibit 4-1
PSNH FUNDING LLC,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
______________________________
INDENTURE
Dated as of April 25, 2001
______________________________
$525,000,000
PSNH FUNDING LLC RATE REDUCTION BONDS, SERIES 2001-1
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
SECTION 1.03. RULES OF CONSTRUCTION
ARTICLE II THE BONDS
SECTION 2.01. TERMS OF THE BONDS
SECTION 2.02. FORM
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY
SECTION 2.04. TEMPORARY BONDS
SECTION 2.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN BONDS
SECTION 2.07. PERSONS DEEMED OWNERS
SECTION 2.08. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST ON OVERDUE
PRINCIPAL; PRINCIPAL AND INTEREST RIGHTS PRESERVED
SECTION 2.09. CANCELLATION
SECTION 2.10. AUTHENTICATION AND DELIVERY OF BONDS
SECTION 2.11. BOOK-ENTRY AND DEFINITIVE BONDS
SECTION 2.12. RELEASE OF COLLATERAL
ARTICLE III COVENANTS
SECTION 3.01. PAYMENT OF PRINCIPAL AND INTEREST
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY
SECTION 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST
SECTION 3.04. EXISTENCE
SECTION 3.05. PROTECTION OF COLLATERAL
SECTION 3.06. OPINIONS AS TO COLLATERAL
SECTION 3.07. PERFORMANCE OF OBLIGATIONS; SERVICING; NHPUC FILINGS
SECTION 3.08. NEGATIVE COVENANTS
SECTION 3.09. ANNUAL STATEMENT AS TO COMPLIANCE
SECTION 3.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
SECTION 3.11. SUCCESSOR OR TRANSFEREE
SECTION 3.12. NO OTHER BUSINESS
SECTION 3.13. NO BORROWING
SECTION 3.14. SERVICER'S OBLIGATIONS
SECTION 3.15. NO ADDITIONAL BONDS
SECTION 3.16. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES
SECTION 3.17. CAPITAL EXPENDITURES
SECTION 3.18. NON-ROUTINE PERIODIC ADJUSTMENT
SECTION 3.19. RESTRICTED PAYMENTS
SECTION 3.20. NOTICE OF EVENTS OF DEFAULT
SECTION 3.21. FURTHER INSTRUMENTS AND ACTS
SECTION 3.22. CHANGE IN CHIEF EXECUTIVE OFFICE OR JURISDICTION OF
ORGANIZATION
SECTION 3.23. NOTICE TO RATING AGENCIES OF AMENDMENT OF OTHER BASIC
DOCUMENTS
ARTICLE IV SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 4.02. CONDITIONS TO DEFEASANCE
SECTION 4.03. APPLICATION OF TRUST MONEY
SECTION 4.04. REPAYMENT OF MONEYS HELD BY PAYING AGENT
ARTICLE V REMEDIES
SECTION 5.01. EVENTS OF DEFAULT
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE
SECTION 5.04. REMEDIES; PRIORITIES
SECTION 5.05. OPTIONAL POSSESSION OF THE COLLATERAL
SECTION 5.06. LIMITATION OF SUITS
SECTION 5.07. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST
SECTION 5.08. RESTORATION OF RIGHTS AND REMEDIES
SECTION 5.09. RIGHTS AND REMEDIES CUMULATIVE
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER
SECTION 5.11. CONTROL BY BONDHOLDERS
SECTION 5.12. WAIVER OF PAST DEFAULTS
SECTION 5.13. UNDERTAKING FOR COSTS
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS
SECTION 5.15. ACTION ON BONDS
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS
ARTICLE VI THE TRUSTEE
SECTION 6.01. DUTIES OF TRUSTEE
SECTION 6.02. RIGHTS OF TRUSTEE
SECTION 6.03. INDIVIDUAL RIGHTS OF TRUSTEE
SECTION 6.04. TRUSTEE'S DISCLAIMER
SECTION 6.05. NOTICE OF DEFAULTS
SECTION 6.06. STATEMENTS TO BONDHOLDERS
SECTION 6.07. COMPENSATION AND INDEMNITY
SECTION 6.08. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
SECTION 6.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
SECTION 6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS
SECTION 6.12. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER
SECTION 6.14. REGISTRATION OF BONDS IN TRUSTEE'S NAME
SECTION 6.15. REPRESENTATIONS AND WARRANTIES OF TRUSTEE
SECTION 6.16. COVENANTS OF THE TRUSTEE
ARTICLE VII BONDHOLDERS' LISTS AND REPORTS
SECTION 7.01. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
BONDHOLDERS
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
BONDHOLDERS
SECTION 7.03. REPORTS BY ISSUER
SECTION 7.04. REPORTS BY TRUSTEE
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. COLLECTION OF MONEY
SECTION 8.02. COLLECTION ACCOUNT
SECTION 8.03. GENERAL PROVISIONS REGARDING THE COLLECTION ACCOUNT
SECTION 8.04. REDUCTION IN PRINCIPAL
SECTION 8.05. RELEASE OF COLLATERAL
SECTION 8.06. OPINION OF COUNSEL
SECTION 8.07. REPORTS BY INDEPENDENT ACCOUNTANTS
ARTICLE IX SUPPLEMENTAL INDENTURES
SECTION 9.01.SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURE
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT
ARTICLE X REDEMPTION OF BONDS
SECTION 10.01. OPTIONAL REDEMPTION BY ISSUER
SECTION 10.02. FORM OF OPTIONAL REDEMPTION NOTICE
SECTION 10.03. BONDS PAYABLE ON OPTIONAL REDEMPTION DATE OR PAYMENT
DATE
SECTION 10.04. MANDATORY REDEMPTION BY ISSUER
SECTION 10.05. FORM OF MANDATORY REDEMPTION NOTICE
SECTION 10.06. BONDS PAYABLE ON MANDATORY REDEMPTION DATE OR PAYMENT
DATE
ARTICLE XI MISCELLANEOUS
SECTION 11.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
SECTION 11.02. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
SECTION 11.03. ACTS OF BONDHOLDERS
SECTION 11.04. NOTICES
SECTION 11.05. NOTICES TO BONDHOLDERS; WAIVER
SECTION 11.06. STATE PLEDGE; BONDS NOT OBLIGATION OF THE STATE OF
NEW HAMPSHIRE, OR SELLER
SECTION 11.07. CONFLICT WITH TRUST INDENTURE ACT
SECTION 11.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS
SECTION 11.09. SUCCESSORS AND ASSIGNS
SECTION 11.10. SEVERABILITY
SECTION 11.11. BENEFITS OF INDENTURE
SECTION 11.12. LEGAL HOLIDAYS
SECTION 11.13. GOVERNING LAW
SECTION 11.14. COUNTERPARTS
SECTION 11.15. RECORDING OF INDENTURE
SECTION 11.16. NO RECOURSE TO CERTAIN PERSONS
SECTION 11.17. NO RECOURSE TO ISSUER
SECTION 11.18. INSPECTION
SECTION 11.19. NON PETITION COVENANTS
INDENTURE dated as of April 25, 2001, between PSNH FUNDING LLC, a
Delaware limited liability company (the "Issuer"), and THE BANK OF NEW YORK,
a New York banking corporation, in its capacity as trustee for the benefit of
the Holders of the Bonds and as agent for itself (collectively, the
"Trustee").
RECITALS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Bonds with an aggregate
principal amount of $525,000,000 and the Issuer and the Trustee are executing
and delivering this Indenture in order to provide for the issuance of the
Bonds.
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee at the Issuance Date, as Trustee
for the benefit of the Holders of the Bonds and the Trustee, all of the
Issuer's right, title and interest, whether now owned or hereafter acquired,
in and to (a) the RRB Property transferred by the Seller to the Issuer
pursuant to the Sale Agreement and all proceeds thereof, (b) the Statutory
Lien, (c) the Sale Agreement, (d) the Servicing Agreement, (e) the
Administration Agreement, (f) the Collection Account (including all
subaccounts thereof) and all amounts or investment property or other property
on deposit therein or credited thereto from time to time, (g) all other
property of whatever kind owned from time to time by the Issuer, including
accounts, general intangibles, equipment and inventory, (h) the security
interest with respect to the RRB Property granted by the Seller to the Issuer
in the Sale Agreement, (i) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever in respect
of any or all of the foregoing, including all proceeds of the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind, and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing and (j) all proceeds of the foregoing (collectively, the
"Collateral"); it being understood that the following do not constitute
Collateral: (i) amounts required to be released pursuant to or contemplated
in the terms hereof, including net investment earnings on the Capital
Subaccount and the Servicer Advance Subaccount that are required to be
released to the Issuer pursuant to Article Accounts, Disbursements and
Releases and (ii) proceeds from the sale of the Bonds required to pay costs
of issuance with respect to the Bonds as set forth on the flow of funds
memorandum delivered on the Issuance Date (together with any interest
earnings thereon), it being understood that such amounts described in clauses
(i) and (ii) above shall not be subject to Sections Except as specifically
provided herein, the Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral, to any
Person, unless or 0.
The foregoing Grants are made to the Trustee in trust to secure the
payment of principal of, interest on, the Bonds, equally and ratably without
prejudice, priority or distinction, except as expressly provided in this
Indenture, and to secure all other Secured Obligations and compliance with
the provisions of this Indenture with respect to the Bonds and the Servicing
Agreement, all as provided in this Indenture. This Indenture constitutes a
security agreement within the meaning of the UCC or the Statute to the extent
that, under New Hampshire law, the provisions of the UCC or the Statute are
applicable hereto.
The Trustee, as trustee on behalf of the Holders of the Bonds and as
agent for itself, acknowledges such Grants, accepts the trusts hereunder in
accordance with the provisions hereof and agrees to perform its duties herein
required.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED between the parties
hereto that all Bonds are to be issued, countersigned and delivered and that
all of the Collateral is to be held and applied, subject to the further
covenants, conditions, releases, uses and trusts hereinafter set forth, and
the Issuer, for itself and any successor, does hereby covenant and agree to
and with the Trustee and its successors in said trust, for the benefit of the
Holders and for the Trustee, as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.01. Definitions. (a) Except as otherwise specified herein or
as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Act" has the meaning specified in Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Bondholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Bondholders
in person or by agents duly appointed in writing; and except as herein
otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Bondholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Issuer, if made in the manner provided in this Section..
"Administration Agreement" means the Administration Agreement dated as
of the date hereof between Public Service Company of New Hampshire, as
Administrator, and the Issuer, as the same may be amended and supplemented
from time to time.
"Administration Fee" means the fee payable to the Administrator pursuant
to the Administration Agreement.
"Administrator" means Public Service Company of New Hampshire, a New
Hampshire corporation, or any successor Administrator under the
Administration Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Issuer, the
Administrator or the Servicer, as applicable, any officer of such Person who
is authorized to act for such Person in matters relating to such Person and
who is identified on the list of Authorized Officers or Responsible Officers
delivered by such Person to the Trustee on the Issuance Date (as such list
may be modified or supplemented by the Issuer, the Administrator or the
Servicer, as applicable, from time to time thereafter).
"Authorized Representative" means, with respect to any entity, any
person who is authorized to act for such entity in matters relating to such
entity and who is identified on the list of Authorized Representatives or
Authorized Officers delivered by such entity to the Trustee on the Issuance
Date (as such list may be modified or supplemented from time to time
thereafter).
"Basic Documents" means, collectively, this Indenture, the Sale
Agreement, the Servicing Agreement, the Administration Agreement, the Fee and
Indemnity Agreement and the Underwriting Agreement.
"Bondholder " or "Holder" means the Person in whose name a Bond is
registered on the Register.
"Bond Interest Rate" has the meaning specified in Initial Principal
Amount; Bond Interest Rate; Scheduled Maturity Date; Final Maturity Date.
The Bonds of each Class shall have the initial principal amount, bear
interest at the rates per annum and shall have Scheduled Maturity Dates and
Final Maturity Dates as set forth below:.
"Book Entry Bonds" means, with respect to any Bond, a beneficial
interest in such Bond, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.11.
"Bonds" has the meaning specified in Authorization; Designation. The
issuance of the Bonds in an aggregate initial principal amount of
$525,000,000 is hereby authorized and the Bonds shall be designated as the
PSNH Funding LLC Rate Reduction Bonds, Series 2001-1 (the "Bonds"), and
further denominated as Classes A-1 through A-3..
"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 or
Manchester, New Hampshire are authorized or obligated by law, regulation or
executive order to remain closed.
"Capital Subaccount" has the meaning specified in Prior to the Issuance
Date, the Issuer shall open, at the Trustee's Corporate Trust Office, or at
another Eligible Institution, one or more segregated trust accounts in the
Trustee's name for the deposit of amounts remitted to the Trustee for deposit
therein on the Issuance Date, RRB Charge Payments and other amounts remitted
under the Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of Bondholders, the
Trustee and the other Persons indemnified hereunder or under the Fee and
Indemnity Agreement. The Collection Account will consist of six subaccounts
(which need not be separate bank accounts): a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), an
overcollateralization subaccount (the "Overcollateralization Subaccount"), a
capital subaccount (the "Capital Subaccount"), an interest reserve subaccount
(the "Interest Reserve Subaccount") and a servicer advance subaccount (the
"Servicer Advance Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount. All
references to the Collection Account shall be deemed to include reference to
all subaccounts contained therein. Withdrawals from and deposits to each of
the foregoing subaccounts of the Collection Account shall be made as set
forth in this Section 8.02. The Collection Account shall at all times be
maintained in an Eligible Deposit Account and only the Trustee shall have
access to the Collection Account for the purpose of making deposits in and
withdrawals from the Collection Account in accordance with this Indenture.
Funds in the Collection Account shall not be commingled with any other
moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by
the Trustee in the Collection Account as part of the Collateral as herein
provided..
"Class" means any one of the classes of Bonds.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book entry transfers and pledges of securities deposited with
the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Collection Account" has the meaning specified in Prior to the Issuance
Date, the Issuer shall open, at the Trustee's Corporate Trust Office, or at
another Eligible Institution, one or more segregated trust accounts in the
Trustee's name for the deposit of amounts remitted to the Trustee for deposit
therein on the Issuance Date, RRB Charge Payments and other amounts remitted
under the Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of Bondholders, the
Trustee and the other Persons indemnified hereunder or under the Fee and
Indemnity Agreement. The Collection Account will consist of six subaccounts
(which need not be separate bank accounts): a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), an
overcollateralization subaccount (the "Overcollateralization Subaccount"), a
capital subaccount (the "Capital Subaccount"), an interest reserve subaccount
(the "Interest Reserve Subaccount") and a servicer advance subaccount (the
"Servicer Advance Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount. All
references to the Collection Account shall be deemed to include reference to
all subaccounts contained therein. Withdrawals from and deposits to each of
the foregoing subaccounts of the Collection Account shall be made as set
forth in this Section 8.02. The Collection Account shall at all times be
maintained in an Eligible Deposit Account and only the Trustee shall have
access to the Collection Account for the purpose of making deposits in and
withdrawals from the Collection Account in accordance with this Indenture.
Funds in the Collection Account shall not be commingled with any other
moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by
the Trustee in the Collection Account as part of the Collateral as herein
provided..
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at the address provided in Notices., or at such other address as the
Trustee may designate from time to time by notice to the Bondholders and the
Issuer, or the principal corporate trust office of any successor Trustee (the
address of which the successor Trustee will notify the Bondholders and the
Issuer).
"Covenant Defeasance Option" has the meaning specified in Subject to
Sections 4.01(c) and 4.02, the Issuer at any time may terminate (i) all its
obligations under this Indenture with respect to the Bonds ("Legal Defeasance
Option") or (ii) its obligations under Sections 3.04, 3.05, 3.06, 3.07, 3.08,
3.09, 3.10, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17 and 3.18 and the operation of
Section 5.01(d) ("Covenant Defeasance Option") with respect to the Bonds.
The Issuer may exercise the Legal Defeasance Option notwithstanding its prior
exercise of the Covenant Defeasance Option..
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Bonds" has the meaning specified in The Bonds of any Class
may be issued in the form of one or more typewritten Bonds representing the
Book-Entry Bonds of that Class, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Issuer. In
such case, the Bonds of such Class delivered to The Depository Trust Company
shall initially be registered on the Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Bondholder will receive a
Definitive Bond representing such Bondholder's interest in the Bond of such
Class, except as provided in Section 2.11(c) below. Unless and until
definitive, fully registered Bonds ("Definitive Bonds") of such Class have
been issued pursuant to Section 2.11(c) below:.
"Delaware UCC" means the Delaware Uniform Commercial Code.
"DTC Agreement" means the agreement between the Trustee, on behalf of
the Issuer and The Depository Trust Company, as the initial Clearing Agency,
dated as of the date hereof relating to the Bonds, as the same may be amended
and supplemented from time to time.
"Eligible Deposit Account" means either (a) a segregated trust account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the United States of America or any State (or any domestic branch of
a foreign bank), having corporate trust powers and acting as trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from Standard & Poor's,
Xxxxx'x and Fitch (if rated by Fitch) in one of its generic rating categories
which signifies investment grade.
"Eligible Institution" means (a) the corporate trust department of the
Trustee or (b) a depository institution organized under the laws of the
United States of America or any State (or any domestic branch of a foreign
bank), which has either a long-term unsecured debt rating of AAA by
Standard & Poor's and Fitch and Aaa by Xxxxx'x or a certificate of deposit
rating of A-1+ by Standard & Poor's, F1+ by Fitch and P-1 by Xxxxx'x, or any
other long-term, short-term or certificate of deposit rating acceptable to
Standard & Poor's, Xxxxx'x, and Fitch and (ii) whose deposits are insured by
the FDIC. If so qualified under clause (b) above, the Trustee may be
considered an Eligible Institution for the purposes of clause (a) of the
definition of Eligible Deposit Account.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, or obligations fully and
unconditionally guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company (any depositary institution
or trust company being referred to in this definition as a "financial
institution") incorporated under the laws of the United States or any
State (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or state banking or depositary
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depositary institution or trust company) thereof shall have a
credit rating from Standard & Poor's, Xxxxx'x and Fitch (if rated by
Fitch) in the highest investment category granted thereby;
(c) commercial paper or other short term obligations of any
corporation organized under the laws of the United States of America
(other than the Seller or its Affiliates) whose ratings, at the time of
the investment or contractual commitment to invest therein, from
Standard & Poor's, Xxxxx'x and Fitch (if rated by Fitch) are in the
highest investment category granted thereby;
(d) investments in money market funds, which funds have a rating
from Standard & Poor's, Xxxxx'x and Fitch (if rated by Fitch) in the
highest investment category granted thereby (including funds for which
the Trustee or any of its Affiliates act as investment manager or
advisor);
(e) banker's acceptances issued by any depositary institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (b) above;
(g) repurchase obligations with respect to any security or whole
loan entered into with
(i) a financial institution (acting as principal) described
in clause (b) above,
(ii) a broker/dealer (acting as principal) registered as a
broker or dealer under Section 15 of the Exchange Act (any
broker/dealer being referred to in this definition as a
"broker/dealer"), the unsecured short-term debt obligations of
which are rated P-1 by Xxxxx'x, A-1+ by Standard & Poor's and F1+
by Fitch (if rated by Fitch) at the time of entering into this
repurchase obligation, or
(iii) an unrated broker/dealer, acting as principal, that
is a wholly-owned subsidiary of a non-bank or bank holding company,
the unsecured short-term debt obligations of which are rated P-1 by
Xxxxx'x, A-1+ by Standard & Poor's and F1+ by Fitch (if rated by
Fitch) at the time of purchase; or
(h) any other investment permitted by each Rating Agency;
provided, however, that, unless otherwise permitted by each Rating Agency,
upon the failure of any Eligible Institution to maintain any applicable
rating set forth in this definition or the definition of Eligible
Institution, the related investments at such institution shall be reinvested
in Eligible Investments at a successor Eligible Institution within 10 days;
and provided, further, that, with respect to Xxxxx'x only, the obligor
related to clauses (b), (c), (e), (f) and (g) above must have both a long
term rating of at least Aa3 and a short term rating of at least P-1.
"Event of Default" has the meaning specified in Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expected Amortization Schedule" means, with respect to each Class of
Bonds, the schedule attached as Schedule 1 hereto.
"FDIC" means the Federal Deposit Insurance Corporation or any successor.
"Fee and Indemnity Agreement" means the fee and indemnity agreement
dated as of the date hereof between the Issuer and the Trustee, as amended
and supplemented from time to time.
"Final Maturity Date" means, with respect to any Class of Bonds, the
Final Maturity Date therefor, as specified in Initial Principal Amount; Bond
Interest Rate; Scheduled Maturity Date; Final Maturity Date. The Bonds of
each Class shall have the initial principal amount, bear interest at the
rates per annum and shall have Scheduled Maturity Dates and Final Maturity
Dates as set forth below:.
"Financial Asset" means a "financial asset" as defined in RSA 382-A:8-
102(a)(9) of the New Hampshire UCC.
"Fitch" means Fitch, Inc. or its successor.
"General Subaccount" has the meaning specified in Prior to the Issuance
Date, the Issuer shall open, at the Trustee's Corporate Trust Office, or at
another Eligible Institution, one or more segregated trust accounts in the
Trustee's name for the deposit of amounts remitted to the Trustee for deposit
therein on the Issuance Date, RRB Charge Payments and other amounts remitted
under the Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of Bondholders, the
Trustee and the other Persons indemnified hereunder or under the Fee and
Indemnity Agreement. The Collection Account will consist of six subaccounts
(which need not be separate bank accounts): a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), an
overcollateralization subaccount (the "Overcollateralization Subaccount"), a
capital subaccount (the "Capital Subaccount"), an interest reserve subaccount
(the "Interest Reserve Subaccount") and a servicer advance subaccount (the
"Servicer Advance Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount. All
references to the Collection Account shall be deemed to include reference to
all subaccounts contained therein. Withdrawals from and deposits to each of
the foregoing subaccounts of the Collection Account shall be made as set
forth in this Section 8.02. The Collection Account shall at all times be
maintained in an Eligible Deposit Account and only the Trustee shall have
access to the Collection Account for the purpose of making deposits in and
withdrawals from the Collection Account in accordance with this Indenture.
Funds in the Collection Account shall not be commingled with any other
moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by
the Trustee in the Collection Account as part of the Collateral as herein
provided..
"Grant" means mortgage, pledge, collaterally assign and xxxxx x xxxx
upon and a security interest pursuant to this Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the Granting party
thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for payments in respect of the Collateral
and all other moneys payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the Granting party or
otherwise and generally to do and receive anything that the Granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Indemnified Person" has the meaning specified in Statements to
Bondholders.
(a) So long as the Trustee is the Registrar and Paying Agent, it
shall deliver to each Bondholder such information in its possession as may be
required to enable such Holder to prepare its federal and state income tax
returns.
(b) On or prior to each Payment Date therefor, the Trustee will
deliver to each Holder of Bonds on such Payment Date a statement as provided
and prepared by the Servicer which will include (to the extent applicable)
the following information as to the Bonds with respect to such Payment Date
or the period since the previous Payment Date, as applicable:
(i) the amount of the payment to Bondholders allocable to
principal (such amount to be expressed as an aggregate dollar amount and
as a dollar amount per $1,000 of original principal amount);
(ii) the amount of the payment to Bondholders allocable to interest
(such amount to be expressed as an aggregate dollar amount and as a
dollar amount per $1,000 of original principal amount);
(iii) the Outstanding Amount of the Bonds, after giving effect
to payments allocated to principal reported under (i) above;
(iv) the difference, if any, between the Outstanding Amount of the
Bonds and the Projected Principal Balance as of such Payment Date, after
giving effect to payments to be made on such Payment Date;
(v) the balance of amounts on deposit in the Reserve Subaccount
after giving effect to payments or allocations made or to be made on
such Payment Date;
(vi) the balance of amounts on deposit in the Overcollateralization
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(vii) the balance of amounts on deposit in the Capital
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(viii)the balance of amounts on deposit in the Interest Reserve
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date; and
(ix) the balance of amounts on deposit in the Servicer Advance
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date.
On each date on which the Trustee distributes any such report to the Holders
of the Bonds of any Class, the Trustee shall also distribute such report to
each Rating Agency.
(c) The Issuer shall send a copy of each Certificate of Compliance
delivered to it pursuant to Section 3.03 of the Servicing Agreement and each
Annual Accountant's Report delivered to it pursuant to Section 3.04 of the
Servicing Agreement to the Trustee, the Bondholders and the Rating Agencies.
(d) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was a Holder of any Class of Bonds and received a payment thereon, a
statement containing the sum of the amounts determined pursuant to
clause (b)(i) or (ii) above with respect to such Class of Bonds for such
calendar year, or, in the event such Person was a Holder of such Class of
Bonds during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
that a Bondholder shall reasonably request as necessary for the purpose of
such Bondholder 's preparation of its federal income tax returns.
Section 6.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it, including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify, defend and hold
harmless the Trustee and any of its affiliates, officials, officers,
directors, employees, consultants, counsel and agents (the "Indemnified
Persons") from and against any and all losses, claims, actions, suits, taxes,
damages, expenses (including, without limitation, legal fees and expenses)
and liabilities (including liabilities under state or federal securities
laws) of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of or are imposed upon or asserted
against such Indemnified Persons with respect to the creation,
administration, operation, enforcement or termination of this trust and the
performance by the Trustee of its duties hereunder, the failure of the Issuer
or any other Person (other than the Person being indemnified) to perform its
obligations hereunder or under any of the Basic Documents, or otherwise in
connection with the Basic Documents or the transactions contemplated thereby,
provided, however, that the Issuer is not required to indemnify any
Indemnified Person for any Expenses that result from the willful misconduct
or gross negligence of such Indemnified Person and, provided, further, that
any Expenses payable to any Indemnified Person hereunder shall be paid to the
Trustee for deposit into and distribution from the Collection Account in
accordance with Article VIII. The willful misconduct or negligence of any
Trustee shall not affect the rights of any predecessor or successor Trustee
hereunder. The Issuer shall not be required to indemnify an Indemnified
Person for any amount paid or payable by such Indemnified Person pursuant to
this Section 6.07 in the settlement of any action, proceeding or
investigation without the written consent of the Issuer, 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 Issuer under this Section 6.07,
notify the Issuer in writing of such involvement. Failure by an Indemnified
Person to so notify the Issuer shall relieve the Issuer from the obligation
to indemnify and hold harmless such Indemnified Person under this Section
6.07, only to the extent that the Issuer 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 6.07, the Issuer shall be entitled to assume the defense of any such
action, proceeding or investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel
of the Issuer's choice at the Issuer's expense to represent the Indemnified
Person in any action, proceeding or investigation for which a claim of
indemnification is made against the Issuer under this Section 6.07 (in which
case the Issuer shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the Indemnified Person except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Issuer'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 Issuer shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the Issuer 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 Issuer 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 Issuer, (iii) the
Issuer 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 Issuer shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Issuer. Notwithstanding the foregoing, the Issuer shall not be obligated
to pay for the fees, costs and expenses of more than one separate counsel for
the Indemnified Persons (in addition to local counsel). The Issuer 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 6.07 (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. Indemnification under this Section 6.07
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..
"Indenture" or "this Indenture" means this instrument as originally
executed and, as from time to time supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, as so supplemented or amended, or both, and shall include
the forms and terms of the Bonds established hereunder.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor
upon the Bonds, the Seller, the Servicer and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the Seller, the Servicer or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Seller, the
Servicer or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions, provided, however, that an individual shall be
deemed to be an Independent director of the Issuer notwithstanding the fact
that he or she is or has been a director of one or more other single purpose
bankruptcy remote entities which are Affiliates of the Issuer, the Seller,
the Servicer or any Affiliate thereof.
"Independent Certificate" means a certificate or opinion to be delivered
to the Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Compliance Certificates and Opinions,
etc., made by an Independent appraiser or other expert appointed by an Issuer
Order and consented to by the Trustee, and such opinion or certificate shall
state that the signer has read the definition of "Independent" in this
Indenture and that the signer is Independent within the meaning thereof.
"Interest Reserve Subaccount" has the meaning specified in Prior to the
Issuance Date, the Issuer shall open, at the Trustee's Corporate Trust
Office, or at another Eligible Institution, one or more segregated trust
accounts in the Trustee's name for the deposit of amounts remitted to the
Trustee for deposit therein on the Issuance Date, RRB Charge Payments and
other amounts remitted under the Servicing Agreement (collectively, the
"Collection Account"). The Trustee shall hold the Collection Account for the
benefit of Bondholders, the Trustee and the other Persons indemnified
hereunder or under the Fee and Indemnity Agreement. The Collection Account
will consist of six subaccounts (which need not be separate bank accounts):
a general subaccount (the "General Subaccount"), a reserve subaccount (the
"Reserve Subaccount"), an overcollateralization subaccount (the
"Overcollateralization Subaccount"), a capital subaccount (the "Capital
Subaccount"), an interest reserve subaccount (the "Interest Reserve
Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to any
other subaccount shall be allocated to the General Subaccount. Prior to the
initial Payment Date, all amounts in the Collection Account (other than funds
deposited into the Capital Subaccount, the Interest Reserve Subaccount and
the Servicer Advance Subaccount, together with interest earnings thereon)
shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in this
Section 8.02. The Collection Account shall at all times be maintained in an
Eligible Deposit Account and only the Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. Except as
provided in Section 8.03, all moneys deposited from time to time in the
Collection Account, all deposits therein pursuant to this Indenture, and all
investments made in Eligible Investments with such moneys, including all
income or other gain from such investments, shall be held by the Trustee in
the Collection Account as part of the Collateral as herein provided..
"Issuance Date" has the meaning specified in Authentication Date. The
Bonds that are authenticated and delivered by the Trustee to or upon the
order of the Issuer on April 25, 2001 (the "Issuance Date") shall have as
their date of authentication April 25, 2001..
"Issuer" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the Trust Indenture Act,
each other obligor on the Bonds.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Trustee.
"Legal Defeasance Option" has the meaning specified in Subject to
Sections 4.01(c) and 4.02, the Issuer at any time may terminate (i) all its
obligations under this Indenture with respect to the Bonds ("Legal Defeasance
Option") or (ii) its obligations under Sections 3.04, 3.05, 3.06, 3.07, 3.08,
3.09, 3.10, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17 and 3.18 and the operation of
Section 5.01(d) ("Covenant Defeasance Option") with respect to the Bonds.
The Issuer may exercise the Legal Defeasance Option notwithstanding its prior
exercise of the Covenant Defeasance Option..
"Lien" means security interest, lien, charge, pledge, equity or
encumbrance of any kind.
"Mandatory Redemption Date" has the meaning specified in Mandatory
Redemption by Issuer. If the Seller is required to repurchase the RRB
Property pursuant to Section 5.01(b) of the Sale Agreement, or elects to
repurchase the RRB Property pursuant to Section 5.01(e) of the Sale
Agreement, the Issuer shall be required to redeem all outstanding Bonds on or
before the fifth Business Day following the Repurchase Date (such date of
mandatory redemption, the "Mandatory Redemption Date") for a purchase price
equal to the then outstanding principal amount of the Bonds plus accrued and
unpaid interest thereon at the Bond Interest Rate to the Mandatory Redemption
Date (such price being called the "Mandatory Redemption Price"). If the
Issuer is required to redeem the Bonds pursuant to this Section 10.04, it
shall furnish written notice (which notice shall state all items listed in
Section 10.05) of such redemption to the Trustee and the Rating Agencies not
later than one Business Day before such Repurchase Date and shall deposit
with the Trustee, not later than 12:00 noon Eastern Time on the Repurchase
Date, the Mandatory Redemption Price of the Bonds to be redeemed whereupon
all such Bonds shall be due and payable on the Mandatory Redemption Date upon
the furnishing of a notice complying with Section 10.05 to each Holder of the
Bonds pursuant to this Section 10.04..
"Mandatory Redemption Price" has the meaning specified in Mandatory
Redemption by Issuer. If the Seller is required to repurchase the RRB
Property pursuant to Section 5.01(b) of the Sale Agreement, or elects to
repurchase the RRB Property pursuant to Section 5.01(e) of the Sale
Agreement, the Issuer shall be required to redeem all outstanding Bonds on or
before the fifth Business Day following the Repurchase Date (such date of
mandatory redemption, the "Mandatory Redemption Date") for a purchase price
equal to the then outstanding principal amount of the Bonds plus accrued and
unpaid interest thereon at the Bond Interest Rate to the Mandatory Redemption
Date (such price being called the "Mandatory Redemption Price"). If the
Issuer is required to redeem the Bonds pursuant to this Section 10.04, it
shall furnish written notice (which notice shall state all items listed in
Section 10.05) of such redemption to the Trustee and the Rating Agencies not
later than one Business Day before such Repurchase Date and shall deposit
with the Trustee, not later than 12:00 noon Eastern Time on the Repurchase
Date, the Mandatory Redemption Price of the Bonds to be redeemed whereupon
all such Bonds shall be due and payable on the Mandatory Redemption Date upon
the furnishing of a notice complying with Section 10.05 to each Holder of the
Bonds pursuant to this Section 10.04..
"Minimum Denomination" means $1,000 or any integral multiple of $1.00 in
excess thereof; provided, however, that one Bond of each Class may be of a
smaller denomination.
"Moody's" means Xxxxx'x Investors Service Inc. or its successor.
"New Hampshire UCC" means the New Hampshire Uniform Commercial Code.
"New York UCC" means the New York Uniform Commercial Code.
"NHPUC" means the New Hampshire Public Utilities Commission and any
successor thereto.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Compliance Certificates and
Opinions, etc., and delivered to the Trustee.
"Operating Expenses" means all fees, costs and expenses of, and
indemnities owed by, the Issuer, including all taxes payable by the Issuer,
all amounts owed by the Issuer to the Trustee and any other Indemnified
Person, the Servicing Fee, the Administration Fee, any fees, costs and
expenses payable or reimbursable by the Issuer to the Administrator, Seller
or Servicer, and legal and accounting fees, costs and expenses of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be an employee
of or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee, and which opinion or opinions shall be addressed to the Trustee,
shall comply with any applicable requirements of Compliance Certificates and
Opinions, etc., and shall be in form and substance reasonably satisfactory to
the Trustee.
"Optional Redemption Date" means the Payment Date specified by the
Issuer for the redemption of the Bonds pursuant to Optional Redemption by
Issuer. The Issuer may, at its option, redeem all, but not less than all, of
the Bonds on any Payment Date if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount has been
reduced to less than five percent of the initial principal balance thereof at
a price equal to the outstanding principal amount of the Bonds to be redeemed
plus accrued and unpaid interest thereon at the Bond Interest Rate to the
Optional Redemption Date (such price being called the "Optional Redemption
Price"). If the Issuer shall elect to redeem the Bonds pursuant to this
Section 10.01, it shall furnish written notice (which notice shall state all
items listed in Section 10.02) of such election to the Trustee and the Rating
Agencies not later than 25 days prior to the Optional Redemption Date and
shall deposit with the Trustee not later than one Business Day prior to the
Optional Redemption Date the Optional Redemption Price of the Bonds to be
redeemed whereupon all such Bonds shall be due and payable on the Optional
Redemption Date upon the furnishing of a notice complying with Section 10.02
to each Holder of the Bonds pursuant to this Section 10.01..
"Optional Redemption Price" has the meaning specified in Optional
Redemption by Issuer. The Issuer may, at its option, redeem all, but not
less than all, of the Bonds on any Payment Date if, after giving effect to
payments that would otherwise be made on such Payment Date, the Outstanding
Amount has been reduced to less than five percent of the initial principal
balance thereof at a price equal to the outstanding principal amount of the
Bonds to be redeemed plus accrued and unpaid interest thereon at the Bond
Interest Rate to the Optional Redemption Date (such price being called the
"Optional Redemption Price"). If the Issuer shall elect to redeem the Bonds
pursuant to this Section 10.01, it shall furnish written notice (which notice
shall state all items listed in Section 10.02) of such election to the
Trustee and the Rating Agencies not later than 25 days prior to the Optional
Redemption Date and shall deposit with the Trustee not later than one
Business Day prior to the Optional Redemption Date the Optional Redemption
Price of the Bonds to be redeemed whereupon all such Bonds shall be due and
payable on the Optional Redemption Date upon the furnishing of a notice
complying with Section 10.02 to each Holder of the Bonds pursuant to this
Section 10.01..
"Outstanding" means, as of the date of determination, all Bonds
theretofore authenticated and delivered under this Indenture except:
(i) Bonds theretofore cancelled by the Registrar or delivered to
the Registrar for cancellation;
(ii) Bonds or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Bonds (provided, however,
that if such Bonds are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision made therefor,
reasonably satisfactory to the Trustee); and
(iii) Bonds in exchange for or in lieu of other Bonds which
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Trustee is presented that any such Bonds are
held by a protected purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Bonds or any Class thereof have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
under any Basic Document, Bonds owned by the Issuer, any other obligor upon
the Bonds, the Seller or any Affiliate of any of the foregoing Persons shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Bonds that
the Trustee actually knows to be so owned shall be so disregarded. Xxxxx so
owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Bonds and that the pledgee is not the
Issuer, any other obligor upon the Bonds, the Seller or any Affiliate of any
of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Bonds
or, if the context requires, all Bonds of a Class, Outstanding at the date of
determination.
"Overcollateralization Subaccount" has the meaning specified in Prior to
the Issuance Date, the Issuer shall open, at the Trustee's Corporate Trust
Office, or at another Eligible Institution, one or more segregated trust
accounts in the Trustee's name for the deposit of amounts remitted to the
Trustee for deposit therein on the Issuance Date, RRB Charge Payments and
other amounts remitted under the Servicing Agreement (collectively, the
"Collection Account"). The Trustee shall hold the Collection Account for the
benefit of Bondholders, the Trustee and the other Persons indemnified
hereunder or under the Fee and Indemnity Agreement. The Collection Account
will consist of six subaccounts (which need not be separate bank accounts):
a general subaccount (the "General Subaccount"), a reserve subaccount (the
"Reserve Subaccount"), an overcollateralization subaccount (the
"Overcollateralization Subaccount"), a capital subaccount (the "Capital
Subaccount"), an interest reserve subaccount (the "Interest Reserve
Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to any
other subaccount shall be allocated to the General Subaccount. Prior to the
initial Payment Date, all amounts in the Collection Account (other than funds
deposited into the Capital Subaccount, the Interest Reserve Subaccount and
the Servicer Advance Subaccount, together with interest earnings thereon)
shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in this
Section 8.02. The Collection Account shall at all times be maintained in an
Eligible Deposit Account and only the Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. Except as
provided in Section 8.03, all moneys deposited from time to time in the
Collection Account, all deposits therein pursuant to this Indenture, and all
investments made in Eligible Investments with such moneys, including all
income or other gain from such investments, shall be held by the Trustee in
the Collection Account as part of the Collateral as herein provided..
"Paying Agent" means the Trustee or any other Person that meets the
eligibility standards for the Trustee specified in Corporate Trustee
Required; Eligibility. and is authorized by the Issuer to make payment of
principal of or interest on the Bonds on behalf of the Issuer.
"Payment Date" has the meaning specified in Payment Dates. The Payment
Dates for the Bonds shall be February 1, May 1, August 1 and November 1 of
each year or, if any such date is not a Business Day, the next succeeding
Business Day, commencing on November 1, 2001 and continuing until the earlier
of repayment of the Bonds in full or the Final Maturity Date for Class A-3 of
the Bonds..
"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.
"Predecessor Bond" means, with respect to any particular Bond, every
previous Bond evidencing all or a portion of the same debt as that evidenced
by such particular Bond; and, for the purpose of this definition, any Bond
authenticated and delivered under Mutilated, Destroyed, Lost or Stolen Bonds.
If (i) any mutilated Bond is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of
any Bond, and (ii) there is delivered to the Registrar and the Trustee such
security, indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer, the Registrar or the
Trustee that such Bond has been acquired by a protected purchaser, the Issuer
shall execute and, upon its request, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Bond, a replacement Bond of like Class, tenor and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that
if any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall
have become or within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Bond, the Issuer may
pay such destroyed, lost or stolen Bond when so due or payable or upon the
Optional Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith. in
lieu of a mutilated, lost, destroyed or stolen Bond shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Bond.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Projected Principal Balance" means, as of any Payment Date on any Class
of Bonds, the projected outstanding principal amount of such Class of Bonds
for such Payment Date set forth in the Expected Amortization Schedule.
"Quarterly Interest" has the meaning specified in Quarterly Interest.
Quarterly Interest will be payable on each Class of Bonds on each Payment
Date in an amount equal to one-quarter of the product of (i) the applicable
Bond Interest Rate and (ii) the Outstanding Amount of the related Class of
Bonds as of the close of business on the preceding Payment Date after giving
effect to all payments of principal made to the Holders of the related Class
of Bonds on such preceding Payment Date; provided, however, that with respect
to the initial Payment Date or, if no payment has yet been made, interest on
the outstanding principal balance will accrue from and including the Issuance
Date to, but excluding, that Payment Date..
"Quarterly Principal" means, with respect to any Payment Date on any
Class of Bonds, the excess, if any, of the Outstanding Amount of such Class
of Bonds over the outstanding principal balance of such Class of Bonds
specified for such Payment Date in the Expected Amortization Schedule.
"Rating Agency" means, collectively, Moody's, Standard & Poor's and
Fitch. If no such organization or successor is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating
organization or other comparable Person designated by the Issuer, notice of
which designation shall be given to the Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and, except
as otherwise expressly set forth in the related Basic Document, that each of
Standard & Poor's and Fitch shall have notified the Servicer, the Issuer and
the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
the Bonds.
"Record Date" means, with respect to a Payment Date, Optional Redemption
Date or Mandatory Redemption Date, the close of business on the Business Day
immediately preceding such Payment Date, Optional Redemption Date or
Mandatory Redemption Date or, if Definitive Bonds are issued, the close of
business on the last day of the calendar month preceding the calendar month
in which such Payment Date, Optional Redemption Date or Mandatory Redemption
Date occurs.
"Register" and "Registrar" have the respective meanings specified in
Registration; Registration of Transfer and Exchange. The Issuer shall cause
to be kept a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the
registration of Bonds and the registration of transfers of Bonds. The
Trustee shall be "Registrar" for the purpose of registering Bonds and
transfers and exchanges of Bonds as herein provided. Upon any resignation of
any Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Registrar..
"Registered Holder" means the Person in whose name a Bond is registered
on the Register on the applicable Record Date.
"Repurchase Date" has the meaning specified in the Sale Agreement.
"Required Capital Level" means, as of any Payment Date, 0.50 percent of
the initial principal amount of the Bonds.
"Required Interest Reserve Level" means, as of any Payment Date (after
giving effect to all payments of principal, if any, made or to be made on
such Payment Date), the amount equal to the aggregate amount of interest that
will be due and payable on the Bonds on and as of the immediately succeeding
Payment Date; provided, however, that the "Required Interest Reserve Level"
with respect to the first five Payment Dates shall be as follows:
Payment Date Required Interest
Reserve Level
First Payment Date $4,747,038
Second Payment Date $5,340,417
Third Payment Date $5,933,797
Fourth Payment Date $6,527,177
Fifth Payment Date $7,120,557
"Required Overcollateralization Level" means, as of any Payment Date,
the amount required to be on deposit in the Overcollateralization Subaccount
as specified in Schedule 2 hereto.
"Reserve Subaccount" has the meaning specified in Prior to the Issuance
Date, the Issuer shall open, at the Trustee's Corporate Trust Office, or at
another Eligible Institution, one or more segregated trust accounts in the
Trustee's name for the deposit of amounts remitted to the Trustee for deposit
therein on the Issuance Date, RRB Charge Payments and other amounts remitted
under the Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of Bondholders, the
Trustee and the other Persons indemnified hereunder or under the Fee and
Indemnity Agreement. The Collection Account will consist of six subaccounts
(which need not be separate bank accounts): a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), an
overcollateralization subaccount (the "Overcollateralization Subaccount"), a
capital subaccount (the "Capital Subaccount"), an interest reserve subaccount
(the "Interest Reserve Subaccount") and a servicer advance subaccount (the
"Servicer Advance Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount. All
references to the Collection Account shall be deemed to include reference to
all subaccounts contained therein. Withdrawals from and deposits to each of
the foregoing subaccounts of the Collection Account shall be made as set
forth in this Section 8.02. The Collection Account shall at all times be
maintained in an Eligible Deposit Account and only the Trustee shall have
access to the Collection Account for the purpose of making deposits in and
withdrawals from the Collection Account in accordance with this Indenture.
Funds in the Collection Account shall not be commingled with any other
moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by
the Trustee in the Collection Account as part of the Collateral as herein
provided..
"Responsible Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Division (or any successor thereto),
including any Vice President, Assistant Vice President, Secretary, Assistant
Secretary or Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers, in each case having direct responsibility for the
administration of this Indenture.
"RRB Property" has the meaning specified in the Sale Agreement.
"RSA" means New Hampshire Revised Statutes Annotated.
"Sale Agreement" means the Purchase and Sale Agreement dated as of the
date hereof between the Issuer and the Seller, as amended and supplemented
from time to time.
"Scheduled Maturity Date" means, with respect to any Class of Bonds, the
Scheduled Maturity Date therefor, as specified in Initial Principal Amount;
Bond Interest Rate; Scheduled Maturity Date; Final Maturity Date. The Bonds
of each Class shall have the initial principal amount, bear interest at the
rates per annum and shall have Scheduled Maturity Dates and Final Maturity
Dates as set forth below:.
"Secured Obligations" means, collectively, the payment of principal of,
and interest on, and any other amounts owning in respect of the Bonds, all
fees, expenses, counsel fees and other amounts due and owing to the Trustee
pursuant to this Indenture, all fees, expenses, counsel fees and other
amounts due and owing to the Trustee pursuant to the other Basic Documents
and all amounts owed by the Issuer to any other Person indemnified hereunder
or under the Fee and Indemnity Agreement (including indemnity payments and
legal fees and expenses).
"Securities Account" means the Collection Account which shall be a
"securities account," as defined in Section 8-501 of the New York UCC.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means the Trustee, acting as a "securities
intermediary," as defined in Section 8-102(a)(14) of the New York UCC.
"Security Entitlement" means a "security entitlement" as defined in
Section 8-102(a)(17) of the New York UCC.
"Seller" means Public Service Company of New Hampshire, a New Hampshire
corporation, and its permitted successors and assigns under the Sale
Agreement.
"Servicer" means Public Service Company of New Hampshire, a New
Hampshire corporation, in its capacity as servicer under the Servicing
Agreement, including its successors in interest, until a successor Person
shall have become the servicer pursuant to the Servicing Agreement, and
thereafter "Servicer" shall mean such successor Person.
"Servicer Advance Subaccount" has the meaning specified in Prior to the
Issuance Date, the Issuer shall open, at the Trustee's Corporate Trust
Office, or at another Eligible Institution, one or more segregated trust
accounts in the Trustee's name for the deposit of amounts remitted to the
Trustee for deposit therein on the Issuance Date, RRB Charge Payments and
other amounts remitted under the Servicing Agreement (collectively, the
"Collection Account"). The Trustee shall hold the Collection Account for the
benefit of Bondholders, the Trustee and the other Persons indemnified
hereunder or under the Fee and Indemnity Agreement. The Collection Account
will consist of six subaccounts (which need not be separate bank accounts):
a general subaccount (the "General Subaccount"), a reserve subaccount (the
"Reserve Subaccount"), an overcollateralization subaccount (the
"Overcollateralization Subaccount"), a capital subaccount (the "Capital
Subaccount"), an interest reserve subaccount (the "Interest Reserve
Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to any
other subaccount shall be allocated to the General Subaccount. Prior to the
initial Payment Date, all amounts in the Collection Account (other than funds
deposited into the Capital Subaccount, the Interest Reserve Subaccount and
the Servicer Advance Subaccount, together with interest earnings thereon)
shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in this
Section 8.02. The Collection Account shall at all times be maintained in an
Eligible Deposit Account and only the Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. Except as
provided in Section 8.03, all moneys deposited from time to time in the
Collection Account, all deposits therein pursuant to this Indenture, and all
investments made in Eligible Investments with such moneys, including all
income or other gain from such investments, shall be held by the Trustee in
the Collection Account as part of the Collateral as herein provided..
"Servicing Agreement" means the Servicing Agreement dated as of the date
hereof between the Issuer and the Servicer, as amended and supplemented from
time to time.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. or its successor.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"State Pledge" has the meaning specified in The Issuer hereby finds and
determines, and hereby represents and warrants, that it constitutes a
"financing entity" under RSA 369-B:2, and that the Bonds constitute "rate
reduction bonds" under RSA 369-B:2 and that the Holders of the Bonds are
entitled to the rights and benefits thereunder. Pursuant to RSA 369-B:6, II,
the State of New Hampshire pledges, contracts and agrees with the Issuer and
the Holders of the Bonds (the "State Pledge") as follows:.
"Statute" means RSA Chapter 369-B.
"Statutory Lien" means the Lien on the RRB Property created by RSA 369-
B:7, VIII.
"Successor Servicer" has the meaning specified in As promptly as
possible after the giving of notice to the Servicer, the Trustee and the
Rating Agencies of termination of the Servicer's rights and powers pursuant
to Section 7.01 of the Servicing Agreement, the Issuer, subject to the
approval of the NHPUC pursuant to the Finance Order, shall appoint a
successor Servicer (the "Successor Servicer") with the Trustee's prior
written consent thereto (which consent shall not be unreasonably withheld),
and such Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to the Issuer and the Trustee. A Person
shall qualify as a Successor Servicer only if such Person satisfies the
requirements of the Servicing Agreement. If within 30 days after the
delivery of the notice referred to above, the Issuer shall not have obtained
such a new Servicer, the Trustee may petition the NHPUC or a court of
competent jurisdiction to appoint a Successor Servicer. In connection with
any such appointment, the Issuer may make such arrangements for the
compensation of such successor as it and such successor shall agree, subject
to the limitations set forth below and in the Servicing Agreement, and in
accordance and in compliance with Section 7.02 of the Servicing Agreement,
the Issuer shall enter into an agreement with such successor for the
servicing of the RRB Property (such agreement to be in form and substance
reasonably satisfactory to the Trustee)..
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
"Trustee" means The Bank of New York, a New York banking corporation or
its successor, as Trustee under this Indenture, or any successor Trustee
under this Indenture.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
"Underwriters" means the underwriters who purchase the Bonds from the
Issuer and sell the Bonds in a public offering.
"Underwriting Agreement" means the Underwriting Agreement dated as of
April 20, 2001, among the Seller, the Issuer and Xxxxxxx Xxxxx Xxxxxx Inc.,
as the representative of the several underwriters named therein.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
of America (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States of America is
pledged.
(b) Capitalized terms used herein and not otherwise defined have the
meanings assigned to them in the Servicing Agreement.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Bonds.
"indenture security holder" means a Bondholder .
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by Commission rule have the meanings assigned
to them by such definitions.
Section 1.03. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(g) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture.
ARTICLE II
The Bonds
Section 2.01. Terms of the Bonds.
(a) Authorization; Designation. The issuance of the Bonds in an
aggregate initial principal amount of $525,000,000 is hereby authorized and
the Bonds shall be designated as the PSNH Funding LLC Rate Reduction Bonds,
Series 2001-1 (the "Bonds"), and further denominated as Classes A-1 through
A-3.
(b) Initial Principal Amount; Bond Interest Rate; Scheduled
Maturity Date; Final Maturity Date. The Bonds of each Class shall have the
initial principal amount, bear interest at the rates per annum and shall have
Scheduled Maturity Dates and Final Maturity Dates as set forth below:
Class Initial Bond Scheduled Final
Principal Interest Maturity Maturity
Amount Rate Date Date
A-1 $75,211,483 4.57% 5/1/03 5/1/05
A-2 $214,649,395 5.73% 11/1/08 11/1/10
A-3 $235,139,122 6.48% 5/1/13 5/1/15
The Bond Interest Rate shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Bonds shall be issuable in not less than Minimum Denominations.
(c) Authentication Date; Payment Dates; Expected Amortization
Schedule for Principal; Quarterly Interest.
(i) Authentication Date. The Bonds that are authenticated and
delivered by the Trustee to or upon the order of the Issuer on April 25,
2001 (the "Issuance Date") shall have as their date of authentication
April 25, 2001.
(ii) Payment Dates. The Payment Dates for the Bonds shall be
February 1, May 1, August 1 and November 1 of each year or, if any such
date is not a Business Day, the next succeeding Business Day, commencing
on November 1, 2001 and continuing until the earlier of repayment of the
Bonds in full or the Final Maturity Date for Class A-3 of the Bonds.
(iii) Expected Amortization Schedule for Principal. Unless an
Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Bonds and accrued interest thereon has been
declared to be due and payable, on each Payment Date, the Trustee shall
pay to the Bondholders of record as of the related Record Date amounts
payable pursuant to On any Business Day upon which the Trustee receives
a written request from the Administrator stating that any Operating
Expense payable by the Issuer (but only as described in clauses (i)
through (iv) below) will become due and payable prior to the next
succeeding Payment Date, and setting forth the amount and nature of such
Operating Expenses, as well as any supporting documentation that the
Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before
the date such payment is due from amounts on deposit in the General
Subaccount, the Reserve Subaccount, the Overcollateralization Subaccount
and the Capital Subaccount, in that order and only to the extent
required to make such payment. as principal, in the following order and
priority: (1) to the holders of the Class A-1 Bonds, until the
Outstanding Amount of such Class of Bonds thereof has been reduced to
zero; (2) to the holders of the Class A-2 Bonds, until the Outstanding
Amount of such Class of Bonds thereof has been reduced to zero; and (3)
to the holders of the Class A-3 Bonds, until the Outstanding Amount of
such Class of Bonds thereof has been reduced to zero; provided, however,
that in no event shall a principal payment pursuant to this on any Class
on a Payment Date be greater than the amount that reduces the Outstanding
Amount of such Class of bonds to the amount specified in the Expected
Amortization Schedule for such Payment Date. Partial payments of any
scheduled amortization payment shall be allocated within any Class of
Bonds pro rata.
(iv) Quarterly Interest. Quarterly Interest will be payable on
each Class of Bonds on each Payment Date in an amount equal to one-
quarter of the product of (i) the applicable Bond Interest Rate and (ii)
the Outstanding Amount of the related Class of Bonds as of the close of
business on the preceding Payment Date after giving effect to all
payments of principal made to the Holders of the related Class of Bonds
on such preceding Payment Date; provided, however, that with respect to
the initial Payment Date or, if no payment has yet been made, interest
on the outstanding principal balance will accrue from and including the
Issuance Date to, but excluding, that Payment Date.
Section 2.02. Form. The Bonds shall be issued in registered form
without coupons. The Bonds and the Trustee's certificate of authentication
shall be substantially in the forms attached hereto as Exhibit A, with the
following filled in: (a) the designation of the Classes thereof, (b) the Bond
number or numbers thereof, (c) the date of authentication thereof, and
(d) the original principal amount thereof; and with such omissions,
variations and insertions as are permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as may be required to
comply with the rules of any securities exchange on which any Class or
Classes of the Bonds may be listed or to conform to any usage in respect
thereof, or as may, consistently herewith, be prescribed by the Issuer or by
the Trustee, and as evidenced by the execution and authentication of such
Bonds. Any portion of the text of any Bond may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Bond.
Except as provided in Book-Entry and Definitive Bonds., the Definitive
Bonds of each Class shall be printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Bonds of such
Class may be listed, as evidenced by an order by an Authorized Representative
of the Issuer, relating to the authentication of such Bonds by the Trustee.
The terms of the Bonds set forth in Exhibit A are part of the terms of
this Indenture.
The Bonds of each Class shall be issued in not less than Minimum
Denominations.
Section 2.03. Execution, Authentication and Delivery. The Bonds shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Bonds may be manual or
facsimile.
Bonds bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Bonds or did not
hold such offices at the date of such Bonds.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Bonds executed by the Issuer to the
Trustee pursuant to an Issuer Order for authentication; and the Trustee shall
authenticate and deliver such Bonds as in this Indenture provided and not
otherwise.
No Bond shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Bond a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Bond shall be conclusive evidence,
and the only evidence, that such Xxxx has been duly authenticated and
delivered hereunder. All Bonds shall be dated the date of their
authentication.
Section 2.04. Temporary Bonds. Pending the preparation of Definitive
Bonds, the Issuer may execute, and upon receipt of an Issuer Order the
Trustee shall authenticate and deliver, temporary Bonds of any Class which
are printed, lithographed, typewritten, mimeographed or otherwise produced,
of the tenor of the Definitive Bonds of such Class in lieu of which they are
issued and with such variations not inconsistent with the terms of this
Indenture as the officers executing such Bonds may determine, as evidenced by
their execution of such Bonds on behalf of the Issuer.
If temporary Bonds of any Class are issued, the Issuer will cause
Definitive Bonds of such Class to be prepared without unreasonable delay.
After the preparation of Definitive Bonds of such Class, the temporary Bonds
of such Class shall be exchangeable for Definitive Bonds of such Class upon
surrender of the temporary Bonds of such Class at the office or agency of the
Issuer to be maintained as provided in Maintenance of Office or Agency. The
Issuer will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Bonds may be surrendered for registration of transfer
or exchange. The Issuer hereby initially appoints the Trustee to serve as
its agent for the foregoing purposes. The Issuer will give prompt written
notice to the Trustee of the location, and of any change in the location, of
any such office or agency. If at any time the Issuer shall fail to maintain
any such office or agency or shall fail to furnish the Trustee with the
address thereof, such surrenders may be made at the Corporate Trust Office,
and the Issuer hereby appoints the Trustee as its agent to receive all such
surrenders., without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Bonds, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount
of Definitive Bonds (of the same Class as the temporary Bonds surrendered) of
Minimum Denominations of a like aggregate principal amount. Until so
exchanged, the temporary Bonds of any Class shall in all respects be entitled
to the same benefits under this Indenture as Definitive Bonds of such Class.
Section 2.05. Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide
for the registration of Bonds and the registration of transfers of Bonds.
The Trustee shall be "Registrar" for the purpose of registering Bonds and
transfers and exchanges of Bonds as herein provided. Upon any resignation of
any Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Registrar.
If a Person other than the Trustee is appointed by the Issuer as
Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Registrar and of the location, and any change in the
location, of the Register, and the Trustee shall have the right to inspect
the Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Registrar by a Responsible Officer thereof as to the names and addresses
of the Holders of the Bonds and the principal amounts and number of such
Xxxxx.
Upon surrender for registration of transfer of any Bond at the office or
agency of the Issuer to be maintained as provided in Maintenance of Office or
Agency. The Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where Bonds may be surrendered for registration
of transfer or exchange. The Issuer hereby initially appoints the Trustee to
serve as its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Trustee
with the address thereof, such surrenders may be made at the Corporate Trust
Office, and the Issuer hereby appoints the Trustee as its agent to receive
all such surrenders., the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Bonds in any Minimum Denominations, of a like
Class and aggregate principal amount.
At the option of the Holder, Bonds may be exchanged for other Bonds in
any Minimum Denominations, of a like Class and aggregate principal amount,
upon surrender of the Bonds to be exchanged at such office or agency.
Whenever any Bonds are so surrendered for exchange, the Issuer shall execute,
and the Trustee shall authenticate and deliver the Bonds which the Bondholder
making the exchange is entitled to receive.
All Bonds issued upon any registration of transfer or exchange of Bonds
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Bonds surrendered
upon such registration of transfer or exchange.
Every Bond presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by (a) a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Holder thereof or such Xxxxxx's attorney duly authorized
in writing, with such signature guaranteed by an institution which is a
member of one of the following recognized Signature Guaranty Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New
York Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee program acceptable
to the Trustee, and (b) such other documents as the Trustee and the Registrar
may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Bonds, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Bonds, other
than exchanges pursuant to Temporary Bonds. Pending the preparation of
Definitive Bonds, the Issuer may execute, and upon receipt of an Issuer Order
the Trustee shall authenticate and deliver, temporary Bonds of any Class
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, of the tenor of the Definitive Bonds of such Class in lieu of which
they are issued and with such variations not inconsistent with the terms of
this Indenture as the officers executing such Bonds may determine, as
evidenced by their execution of such Bonds on behalf of the Issuer. not
involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Registrar need not register transfers
or exchanges of Bonds selected for redemption or of any Bond for a period of
15 days preceding the due date for any payment with respect to the Bond.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Bonds. If (i) any
mutilated Bond is surrendered to the Registrar, or the Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Bond,
and (ii) there is delivered to the Registrar and the Trustee such security,
indemnity or bond as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer, the Registrar or the Trustee
that such Bond has been acquired by a protected purchaser, the Issuer shall
execute and, upon its request, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Bond, a replacement Bond of like Class, tenor and principal amount, bearing a
number not contemporaneously outstanding; provided, however, that if any such
destroyed, lost or stolen Bond, but not a mutilated Bond, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Bond, the Issuer may pay such
destroyed, lost or stolen Bond when so due or payable or upon the Optional
Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Bond under this Section, the Issuer
may require the payment by the Holder of such Bond of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Trustee and the Registrar) connected therewith. Any duplicate Bond
issued pursuant to this Mutilated, Destroyed, Lost or Stolen Bonds. If
(i) any mutilated Bond is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of
any Bond, and (ii) there is delivered to the Registrar and the Trustee such
security, indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer, the Registrar or the
Trustee that such Bond has been acquired by a protected purchaser, the Issuer
shall execute and, upon its request, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Bond, a replacement Bond of like Class, tenor and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that
if any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall
have become or within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Bond, the Issuer may
pay such destroyed, lost or stolen Bond when so due or payable or upon the
Optional Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith. shall
constitute conclusive evidence of the same interest in the Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Bond shall be
found at any time.
Every replacement Xxxx issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Bond shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Bonds of the same Class duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Bonds.
Section 2.07. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Bond, the Issuer, the Trustee, the Registrar
and any Paying Agent may treat the Person in whose name any Bond is
registered (as of the day of determination) as the owner of such Bond for the
purpose of receiving payments of principal of and interest on such Bond and
for all other purposes whatsoever, whether or not such Bond be overdue, and
neither the Issuer, the Trustee, the Registrar nor any Paying Agent shall be
affected by notice to the contrary.
Section 2.08. Payment of Principal and Interest; Interest on Overdue
Principal; Principal and Interest Rights Preserved.
(a) Any installment of interest or principal payable on any Bond
which is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Bond (or one or
more Predecessor Bonds) is registered on the Record Date for such Payment
Date in the manner set forth in 0. The funds represented by any checks
returned undelivered shall be held in accordance with Money for Payments To
Be Held in Trust. As provided in Section 8.02(a), all payments of amounts
due and payable with respect to any Bonds that are to be made from amounts
withdrawn from the Collection Account pursuant to Section 8.02(d) shall be
made on behalf of the Issuer by the Trustee or by another Paying Agent, and
no amounts so withdrawn from the Collection Account for payments of Bonds
shall be paid over to the Issuer except as provided in this Section and
Section 8.02..
(b) The principal of each Bond of each Class shall be paid, to the
extent funds are available therefor in the Collection Account, in
installments on each Payment Date specified in Terms of the Bonds..
Notwithstanding the foregoing, the entire unpaid principal amount of the
Bonds shall be due and payable, if not previously paid, on the date on which
an Event of Default shall have occurred and be continuing, if the Trustee or
the Holders of the Bonds representing not less than a majority of the
Outstanding Amount of the Bonds have declared the Bonds to be immediately due
and payable in the manner provided in Acceleration of Maturity; Rescission
and Annulment. If an Event of Default, other than an Event of Default
pursuant to Section 5.01(g), should occur and be continuing, then and in
every such case, the Trustee may and, upon the written direction of the
Holders of Bonds representing not less than a majority of the Outstanding
Amount of the Bonds, shall declare all the Bonds to be immediately due and
payable, by a notice in writing to the Issuer and upon any such declaration
the unpaid principal amount of the Bonds, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately
due and payable.. In such event, all payments of principal on the Bonds
shall be made pro rata. The Trustee shall notify the Person in whose name a
Bond is registered at the close of business on the Record Date preceding the
Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Bond will be paid. Such notice shall be
mailed no later than five days prior to such final Payment Date and shall
specify that such final installment will be payable only upon presentation
and surrender of such Xxxx and shall specify the place where such Bond may be
presented and surrendered for payment of such installment. Notices in
connection with redemptions of Bonds shall be mailed to Bondholders as
provided in Form of Optional Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Trustee by first-class mail, postage
prepaid, mailed not less than five days nor more than 25 days prior to the
Optional Redemption Date to each Holder of Bonds to be redeemed, as of the
close of business on the Record Date preceding the Optional Redemption Date
at such Holder's address appearing in the Register. or 0, as applicable.
(c) If the Issuer defaults in a payment of interest on the Bonds
when due, the Issuer shall be required to pay such defaulted interest (plus
interest on such defaulted interest at the applicable Bond Interest Rate to
the extent lawful) to the Persons who are Bondholders on a subsequent special
record date, which date shall be at least five Business Days prior to the
payment date. The Issuer shall fix or cause to be fixed any such special
record date and payment date, and, at least 20 days before any such special
record date, the Issuer shall mail to each affected Bondholder a notice that
states the special record date, the payment date and the amount of defaulted
interest (plus interest on such defaulted interest) to be paid.
Section 2.09. Cancellation. All Bonds surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Registrar, be delivered to the Registrar and shall be
promptly cancelled by the Registrar. The Issuer may at any time deliver to
the Registrar for cancellation any Bonds previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly cancelled by the
Registrar. No Bonds shall be authenticated in lieu of or in exchange for any
Bonds cancelled as provided in this Section, except as expressly permitted by
this Indenture. All cancelled Bonds may be held or disposed of by the
Trustee in accordance with its standard retention or disposal policy as in
effect at the time.
Section 2.10. Authentication and Delivery of Bonds. On the Issuance
Date, the Bonds shall be executed by the Issuer and delivered to the Trustee
for authentication and thereupon the same shall be authenticated and
delivered by the Trustee upon Issuer Order and upon delivery by the Issuer,
at the Issuer's expense, to the Trustee, and receipt by the Trustee, or the
causing to occur by the Issuer, of the following:
(a) Issuer Action. An Issuer Order authorizing and directing the
execution, authentication and delivery of the Bonds, specifying the principal
amount of Bonds to be so executed, authenticated and delivered, and including
directing an Authorized Representative of the Issuer to execute and deliver,
and directing the Trustee to authenticate, global Bonds, each to be
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), and to confirm its custody of the Bonds to DTC in New York,
New York so that the Bonds may be credited to or upon the order of the
Underwriters named in said Issuer Order for the purchase price specified
therein and directing the application of the proceeds thereof.
(b) Authorizations.
(i) An Opinion of Counsel that no authorization, approval or
consent of any New Hampshire, Delaware or federal governmental body or
bodies at the time having jurisdiction in the premises is required to be
obtained by the Issuer for the valid issuance, authentication and
delivery of such Bonds, except for such registrations as are required
under the blue sky and securities laws of any State or such
authorizations, approvals or consents of governmental bodies that have
been obtained.
(ii) An Opinion of Counsel that no New Hampshire, Delaware or
federal authorization, approval or consent of any governmental body or
bodies at the time having jurisdiction in the premises is required for
the valid execution and delivery by the Issuer of each of the Basic
Documents to which the Issuer is a party, except for such
authorizations, approvals or consents of governmental bodies that have
been obtained.
(c) Authorizing Certificate. A certificate of an Authorized
Officer of the Issuer certifying that the Issuer has duly authorized the
execution and delivery of this Indenture and the execution, authentication
and delivery of the Bonds.
(d) The Collateral. The Issuer shall have caused all Collateral to
have been Granted to the Trustee and will have caused all filings pursuant to
the Statute, the New Hampshire UCC, the Delaware UCC and any other applicable
law as are necessary to cause the Trustee to have a first priority perfected
security interest in the Collateral to have been duly made.
(e) Certificates of the Issuer and the Seller.
(i) An Officer's Certificate from the Issuer, dated as of the
Issuance Date to the effect that:
(A) the Issuer is not in Default under this Indenture and
that the issuance of the Bonds applied for will not result in any
Default or in any material breach of any of the terms, conditions
or provisions of or constitute a default under any material
indenture, mortgage, deed of trust or other agreement or instrument
to which the Issuer is a party or by which it or its property is
bound or any order of any court or administrative agency entered in
any Proceeding to which the Issuer is a party or by which it or its
property may be bound or to which it or its property may be
subject;
(B) all conditions precedent provided in this Indenture
relating to the authentication and delivery of the Bonds applied
for have been complied with;
(C) all instruments furnished to the Trustee pursuant to this
Indenture conform to the requirements set forth in this Indenture
and constitute all of the documents required to be delivered
hereunder for the Trustee to authenticate and deliver the Bonds
applied for, and all conditions precedent provided for in this
Indenture relating to the authentication and delivery of the Bonds
have been complied with;
(D) the Issuer has not assigned any interest or participation
in the Collateral except for the Lien of this Indenture and of the
Statute;
(E) the Issuer has the power and right to Grant the
Collateral to the Trustee as security hereunder; and the Issuer,
subject to the terms of this Indenture, has Granted to the Trustee
all of its right, title and interest in and to such Collateral free
and clear of any lien, mortgage, pledge, charge, security interest,
adverse claim or other encumbrance, except the Lien of this
Indenture and of the Statute;
(F) the Issuer has appointed a firm of Independent certified
public accountants as contemplated in Reports by Independent
Accountants. As of the Issuance Date, the Issuer shall appoint a
firm of Independent certified public accountants of recognized
national reputation for purposes of preparing and delivering the
reports or certificates of such accountants required by this
Indenture. In the event such firm requires the Trustee to agree to
the procedures performed by such firm, the Issuer shall direct the
Trustee in writing to so agree; it being understood and agreed that
the Trustee will deliver such letter of agreement in conclusive
reliance upon the direction of the Issuer, and the Trustee makes no
independent inquiry or investigation to, and shall have no
obligation or liability in respect of, the sufficiency, validity or
correctness of such procedures. Upon any resignation by such firm
the Issuer shall provide written notice thereof to the Trustee and
shall promptly appoint a successor thereto that shall also be a
firm of Independent certified public accountants of recognized
national reputation. If the Issuer shall fail to appoint a
successor to a firm of Independent certified public accountants
that has resigned within 30 days after such resignation, the
Trustee shall promptly notify the Issuer of such failure in
writing. If the Issuer shall not have appointed a successor within
10 days thereafter the Trustee shall promptly appoint a successor
firm of Independent certified public accountants of recognized
national reputation; provided, however, that the Trustee shall have
no liability with respect to such appointment if the Trustee acted
with due care with respect thereto. The fees of such Independent
certified public accountants and its successor shall be payable by
the Issuer.;
(G) attached thereto are duly executed, true and complete
copies of the Sale Agreement and the Servicing Agreement; and
(H) all filings with the NHPUC pursuant to the Statute and
all UCC financing statements with respect to the Collateral that
are required to be filed in order to cause the Trustee to have a
first priority perfected security interest in the Collateral have
been made.
(ii) An Officer's Certificate (as defined in the Sale Agreement)
from the Seller, dated as of the Issuance Date, to the effect that (a)
the representations and warranties set forth in Article III of the Sale
Agreement are true and correct and (b) the attached copies of the
Finance Order and Issuance Advice Letter creating the RRB Property are
true and correct.
(f) Opinion of Counsel. An Opinion of Counsel, portions of which
may be delivered by counsel for the Issuer and portions of which may be
delivered by counsel for the Seller and the Servicer, dated the Issuance
Date, in each case subject to the customary exceptions, qualifications and
assumptions contained therein, to the collective effect that:
(i) the Indenture has been duly qualified under the Trust
Indenture Act;
(ii) the Issuer has the limited liability company power and
authority to execute and deliver this Indenture and to issue the Bonds,
and this Indenture and the Bonds have been duly authorized and the
Issuer is duly formed and is validly existing in good standing under the
laws of the jurisdiction of its organization;
(iii) the Indenture has been duly authorized, executed and
delivered by the Issuer;
(iv) all instruments furnished to the Trustee as conditions
precedent to the delivery of the Bonds conform to the requirements of
this Indenture and constitute all documents required to be delivered
hereunder to authorize the Trustee to execute and deliver Bonds;
(v) the Bonds applied for have been duly authorized and executed
and, when authenticated in accordance with the provisions of the
Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding obligations of the Issuer, entitled to
the benefits of the Indenture subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws relating
to or affecting the rights of creditors generally and general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(vi) this Indenture, the Sale Agreement, the Servicing Agreement
and the Fee and Indemnity Agreement are valid and binding agreements of
the Issuer, enforceable in accordance with their respective terms,
except as such enforceability against the Issuer may be subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and other laws relating to or affecting the rights of creditors
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(vii) (A) under RSA 369-B:7, II, the provisions of this
Indenture create in favor of the Trustee to secure payment of the
Secured Obligations a security interest in all right, title and
interest, whether now owned or hereafter acquired, of the Issuer in the
RRB Property; (B) the Finance Order authorizes the RRB Charge included
in the RRB Property; (C) the aforesaid security interest in the RRB
Property under this Indenture has attached to the RRB Property or (in
the case of any after acquired property) will attach as it comes into
existence; (D) financing statements which describe the RRB Property by
reference to the Finance Order have been presented for filing in the
offices of the Secretary of the State of New Hampshire and the Clerk of
the City of Manchester, New Hampshire, and all filing fees required in
connection therewith have been paid, in accordance with Part 4 of
Article 9 of the New Hampshire UCC; and (E) such security interest in
the RRB Property granted by the Issuer under this Indenture is valid and
enforceable against the Issuer and is perfected or (in the case of any
after acquired property) will be valid, enforceable and perfected as
such property comes into existence, subject in each case to (x) the
rights of any third parties holding security interests in the RRB
Property perfected in the manner described in RSA 369-B:7 prior to
perfection by filing of the security interest granted under this
Indenture and (y) rights arising under the first priority lien arising
under RSA 369-B:7, VIII described in (A) the Statute creates a Statutory
Lien on the RRB Property securing all obligations, then existing or
subsequently arising, to the holders of the Bonds in respect of the
Bonds and all Secured Obligations, then existing or subsequently
arising, to the Trustee in its capacity as such; (B) such Statutory Lien
is valid, perfected and enforceable against the Issuer and all third
parties without any further public notice; and (C) the Statute provides
that conflicting Statutory Liens on RRB Property arising under RSA 369-
B:7, VIII rank in order of time of perfection;;
(viii) (A) the Statute creates a Statutory Lien on the RRB
Property securing all obligations, then existing or subsequently
arising, to the holders of the Bonds in respect of the Bonds and all
Secured Obligations, then existing or subsequently arising, to the
Trustee in its capacity as such; (B) such Statutory Lien is valid,
perfected and enforceable against the Issuer and all third parties
without any further public notice; and (C) the Statute provides that
conflicting Statutory Liens on RRB Property arising under RSA 369-B:7,
VIII rank in order of time of perfection;
(ix) (A) the provisions of this Indenture create in favor of the
Trustee a security interest in the right, title and interest, whether
now owned or hereafter acquired, of the Issuer in respect of the
Collateral; (B) such security interest will attach to the Collateral as
it comes into existence; (C) financing statements which describe the
Collateral have been presented for filing in the offices of the
Secretary of the State of New Hampshire and the Clerk of the City of
Manchester, New Hampshire, and all filing fees required in connection
therewith have been paid in accordance with Article 9 of the New
Hampshire UCC; and (D) such security interest in the Sale Agreement, the
Servicing Agreement, the Administration Agreement and all accounts,
general intangibles, equipment and inventory (as such terms are defined
in the New Hampshire UCC) of the Issuer and all other Collateral in
which a security interest can be perfected by the filing of financing
statements in New Hampshire under the New Hampshire UCC (collectively,
the "UCC Collateral") granted by the Issuer under this Indenture is
valid and enforceable against the Issuer and is perfected or (in the
case of after acquired property) will be valid, enforceable and
perfected as such property comes into existence, subject in each case to
the rights of any third parties holding security interests in the UCC
Collateral perfected in the manner described in Article 9 of the New
Hampshire UCC prior to perfection by filing of the security interest
therein granted under this Indenture;
(x) either (A) the registration statement covering the Bonds is
effective under the Securities Act and, to the best of such counsel's
knowledge and information, no stop order suspending the effectiveness of
such registration statement has been issued under the Securities Act and
no proceedings for that purpose have been initiated or are pending or
threatened by the Commission or (B) the Bonds are exempt from the
registration requirements under the Securities Act;
(xi) the Issuer is not an "investment company" or under the
"control" of an "investment company" as such terms are defined under the
Investment Company Act of 1940, as amended;
(xii) the Sale Agreement is a valid and binding agreement of
the Seller enforceable against the Seller in accordance with its terms
except as such enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws relating
to or affecting the rights of creditors generally and general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(xiii) the Servicing Agreement is a valid and binding agreement
of the Servicer enforceable against the Servicer in accordance with its
terms except as such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
laws relating to or affecting the rights of creditors generally and
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(xiv) upon the delivery of the fully executed Sale Agreement to
the Issuer and the payment of the purchase price of the RRB Property by
the Issuer to the Seller pursuant to the Sale Agreement, then (1) the
transfer of the RRB Property by the Seller to the Issuer pursuant to the
Sale Agreement conveys the Seller's right, title and interest in the RRB
Property to the Issuer and will be treated under the laws of the State
of New Hampshire as an absolute transfer of all of the Seller's right,
title, and interest in the RRB Property, other than for federal and
state income and franchise tax purposes and notwithstanding any contrary
treatment of such transfer for accounting purposes, (2) such transfer of
the RRB Property is perfected, (3) a financing statement has been filed
in favor of the Issuer that describes the RRB Property by reference to
the Finance Order, in accordance with RSA 369-B:6,VII and (4) assuming
that the Issuer does not have notice or knowledge of any conflicting
assignment of the RRB Property, the transfer of the RRB Property to the
Issuer will have priority over any other assignment of the RRB Property;
(xv) (1) the Finance Order has been duly issued and authorized by
the NHPUC and the Finance Order, giving effect to the Issuance Advice
Letter, is effective; (2) the Issuer constitutes a "financing entity"
under RSA 369-B:2, VI and the Bonds are "rate reduction bonds" under RSA
369-B:2, X; (3) as of the issuance of the Bonds, the Bonds are entitled
to the protections provided in the Statute; (4) the Finance Order is no
longer subject to appeal by any Person in state courts of the State of
New Hampshire; and (5) the Servicer is authorized to file through the
legal final maturity date periodic RRB Charge adjustments to the extent
necessary to ensure the timely recovery of revenues sufficient to
provide for the payment of an amount equal to the sum of the periodic
Bond payment requirements for the upcoming year, which includes
indemnity obligations under the Basic Documents;
(xvi) any state action (whether legislative, by NHPUC, or
otherwise) to revoke or limit the Finance Order, the Issuance Advice
Letter, the RRB Property or the RRB Charge in a manner which would
substantially impair the rights of Bondholders would be subject to a
successful constitutional contracts clause defense; and
(xvii) such other matters as the Trustee may reasonably require.
(g) Accountant's Letter. A letter addressed to the Issuer and the
Trustee complying with the requirements of Upon any application or request by
the Issuer to the Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, (ii)
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required
by the Trust Indenture Act) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this
Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished., of a firm of Independent certified public accountants of
recognized national reputation to the effect that (a) such accountants are
Independent with respect to the Issuer within the meaning of the Indenture,
and are independent public accountants within the meaning of the standards of
The American Institute of Certified Public Accountants, and (b) with respect
to the Collateral, they have made certain specified recalculations of
calculations and information provided by the underwriters for the purpose of
determining that, based on certain specified assumptions used in calculating
estimated collections based on the initial RRB Charge, as of the Issuance
Date such estimated collections based on the initial RRB Charge are
sufficient to pay (w) assumed Operating Expenses when incurred, plus (x) the
Overcollateralization Amount set forth in the Final Prospectus (as such term
is defined in the Underwriting Agreement), plus (y) interest on the Bonds at
their respective Bond Interest Rates when due as set forth in the Final
Prospectus, plus (z) principal of the Bonds in accordance with the Expected
Amortization Schedule set forth in the Final Prospectus and found the
calculations to be mathematically correct.
(h) Ratings on the Bonds. The Trustee shall receive evidence
reasonably satisfactory to it that the Bonds shall have been rated AAA by
Standard & Poor's, Aaa by Xxxxx'x, and AAA by Fitch, or, in each case, the
equivalent.
(i) Other Requirements. Such other documents, certificates,
agreements, instruments or opinions as the Trustee may reasonably require.
Section 2.11. Book-Entry and Definitive Bonds.
(a) The Bonds of any Class may be issued in the form of one or
more typewritten Bonds representing the Book-Entry Bonds of that Class, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. In such case, the Bonds of such Class delivered
to The Depository Trust Company shall initially be registered on the Register
in the name of Cede & Co., the nominee of the initial Clearing Agency, and no
Bondholder will receive a Definitive Bond representing such Bondholder's
interest in the Bond of such Class, except as provided in If (i) the Clearing
Agency advises the Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the Bonds of a Class, and the Trustee or the Issuer is unable to locate a
qualified successor, (ii) the Issuer at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Clearing Agency with respect to the Bonds of such Class or (iii) after the
occurrence of an Event of Default with respect to any Class of Bonds,
Bondholders representing beneficial interests aggregating at least a majority
of the Outstanding Amount of the Bonds advise the Clearing Agency and the
Trustee in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Bondholders, then
the Clearing Agency shall notify all Bondholders and the Trustee of the
occurrence of any such event and of the availability of Definitive Bonds to
Bondholders requesting the same. Upon surrender to the Trustee of the
typewritten Bond or Bonds representing the Book-Entry Bonds by the Clearing
Agency, accompanied by registration instructions, the Issuer shall execute
and the Trustee shall authenticate the Definitive Bonds in accordance with
the instructions of the Clearing Agency. None of the Issuer, the Registrar
or the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be fully protected in relying on,
such instructions. Upon the issuance of Definitive Bonds, the Trustee shall
recognize the Holders of the Definitive Bonds as Bondholders. below. Unless
and until definitive, fully registered Bonds ("Definitive Bonds") of such
Class have been issued pursuant to Book-Entry and Definitive Bonds.(c) below:
(i) the provisions of this Book-Entry and Definitive Bonds. shall
be in full force and effect with respect to the Bonds of such Class;
(ii) the Issuer, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency for all purposes of this Indenture
(including the making of payments on the Bonds of such Class) as the
authorized representative of the Bondholders of Bonds of such Class;
(iii) to the extent that the provisions of this Book-Entry and
Definitive Bonds. conflict with any other provisions of this Indenture,
the provisions of this Book-Entry and Definitive Bonds. shall control;
(iv) the rights of Bondholders of Bonds of such Class shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Bondholders and the
Clearing Agency Participants; and until Definitive Bonds of such Class
are issued pursuant to If (i) the Clearing Agency advises the Trustee in
writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Bonds of a
Class, and the Trustee or the Issuer is unable to locate a qualified
successor, (ii) the Issuer at its option advises the Trustee in writing
that it elects to terminate the book-entry system through the Clearing
Agency with respect to the Bonds of such Class or (iii) after the
occurrence of an Event of Default with respect to any Class of Bonds,
Bondholders representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Bonds advise the Clearing
Agency and the Trustee in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of
the Bondholders, then the Clearing Agency shall notify all Bondholders
and the Trustee of the occurrence of any such event and of the
availability of Definitive Bonds to Bondholders requesting the same.
Upon surrender to the Trustee of the typewritten Bond or Bonds
representing the Book-Entry Bonds by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Trustee
shall authenticate the Definitive Bonds in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Registrar
or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected
in relying on, such instructions. Upon the issuance of Definitive
Bonds, the Trustee shall recognize the Holders of the Definitive Bonds
as Bondholders. below, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Bonds of such
Class to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Bondholders holding Bonds
of such Class representing a specified percentage of the aggregate
Outstanding Amount of Bonds of such Class, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has
received instructions to such effect from Bondholders or Clearing Agency
Participants owning or representing, respectively, Bonds representing
such percentage of the aggregate Outstanding Amount of Bonds of such
Class, and has delivered such instructions to the Trustee; the Trustee
shall have no obligation to determine whether the Clearing Agency has in
fact received any such instructions.
(b) Whenever notice or other communication to the Holders of Bonds
of any Class issued in the form of Bonds representing Book-Entry Bonds is
required under this Indenture, unless and until Definitive Bonds of such
Class shall have been issued pursuant to If (i) the Clearing Agency advises
the Trustee in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect to the Bonds of a
Class, and the Trustee or the Issuer is unable to locate a qualified
successor, (ii) the Issuer at its option advises the Trustee in writing that
it elects to terminate the book-entry system through the Clearing Agency with
respect to the Bonds of such Class or (iii) after the occurrence of an Event
of Default with respect to any Class of Bonds, Bondholders representing
beneficial interests aggregating at least a majority of the Outstanding
Amount of the Bonds advise the Clearing Agency and the Trustee in writing
that the continuation of a book-entry system through the Clearing Agency is
no longer in the best interests of the Bondholders, then the Clearing Agency
shall notify all Bondholders and the Trustee of the occurrence of any such
event and of the availability of Definitive Bonds to Bondholders requesting
the same. Upon surrender to the Trustee of the typewritten Bond or Bonds
representing the Book-Entry Bonds by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Trustee shall
authenticate the Definitive Bonds in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Registrar or the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such instructions. Upon
the issuance of Definitive Bonds, the Trustee shall recognize the Holders of
the Definitive Bonds as Bondholders., the Trustee shall give all such notices
and communications specified herein to be given to Holders of Bonds of such
Class to the Clearing Agency.
(c) If (i) the Clearing Agency advises the Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Bonds of a Class, and the Trustee or the
Issuer is unable to locate a qualified successor, (ii) the Issuer at its
option advises the Trustee in writing that it elects to terminate the book-
entry system through the Clearing Agency with respect to the Bonds of such
Class or (iii) after the occurrence of an Event of Default with respect to
any Class of Bonds, Bondholders representing beneficial interests aggregating
at least a majority of the Outstanding Amount of the Bonds advise the
Clearing Agency and the Trustee in writing that the continuation of a book-
entry system through the Clearing Agency is no longer in the best interests
of the Bondholders, then the Clearing Agency shall notify all Bondholders and
the Trustee of the occurrence of any such event and of the availability of
Definitive Bonds to Bondholders requesting the same. Upon surrender to the
Trustee of the typewritten Bond or Bonds representing the Book-Entry Bonds by
the Clearing Agency, accompanied by registration instructions, the Issuer
shall execute and the Trustee shall authenticate the Definitive Bonds in
accordance with the instructions of the Clearing Agency. None of the Issuer,
the Registrar or the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be fully protected
in relying on, such instructions. Upon the issuance of Definitive Bonds, the
Trustee shall recognize the Holders of the Definitive Bonds as Bondholders.
Section 2.12. Release of Collateral. Subject to Compliance
Certificates and Opinions, etc., the Trustee shall release property from the
Lien of this Indenture only as specified in Collection Account. or upon
receipt of an Issuer Request accompanied by an Officer's Certificate, an
Opinion of Counsel and Independent Certificates in accordance with Trust
Indenture Act 314(c) and 314(d)(l) or an Opinion of Counsel in lieu of
such Independent Certificates to the effect that the Trust Indenture Act does
not require any such Independent Certificates.
ARTICLE III
Covenants
Section 3.01. Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal of and interest on the Bonds in accordance
with the terms of the Bonds and this Indenture. Amounts properly withheld
under the Code by any Person from a payment to any Bondholder of interest or
principal shall be considered as having been paid by the Issuer to such
Bondholder for all purposes of this Indenture.
Section 3.02. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Bonds may be surrendered for registration of transfer or
exchange. The Issuer hereby initially appoints the Trustee to serve as its
agent for the foregoing purposes. The Issuer will give prompt written notice
to the Trustee of the location, and of any change in the location, of any
such office or agency. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Trustee with the address
thereof, such surrenders may be made at the Corporate Trust Office, and the
Issuer hereby appoints the Trustee as its agent to receive all such
surrenders.
Section 3.03. Money for Payments To Be Held in Trust. As provided in
Prior to the Issuance Date, the Issuer shall open, at the Trustee's Corporate
Trust Office, or at another Eligible Institution, one or more segregated
trust accounts in the Trustee's name for the deposit of amounts remitted to
the Trustee for deposit therein on the Issuance Date, RRB Charge Payments and
other amounts remitted under the Servicing Agreement (collectively, the
"Collection Account"). The Trustee shall hold the Collection Account for the
benefit of Bondholders, the Trustee and the other Persons indemnified
hereunder or under the Fee and Indemnity Agreement. The Collection Account
will consist of six subaccounts (which need not be separate bank accounts):
a general subaccount (the "General Subaccount"), a reserve subaccount (the
"Reserve Subaccount"), an overcollateralization subaccount (the
"Overcollateralization Subaccount"), a capital subaccount (the "Capital
Subaccount"), an interest reserve subaccount (the "Interest Reserve
Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to any
other subaccount shall be allocated to the General Subaccount. Prior to the
initial Payment Date, all amounts in the Collection Account (other than funds
deposited into the Capital Subaccount, the Interest Reserve Subaccount and
the Servicer Advance Subaccount, together with interest earnings thereon)
shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in this
Section 8.02. The Collection Account shall at all times be maintained in an
Eligible Deposit Account and only the Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. Except as
provided in Section 8.03, all moneys deposited from time to time in the
Collection Account, all deposits therein pursuant to this Indenture, and all
investments made in Eligible Investments with such moneys, including all
income or other gain from such investments, shall be held by the Trustee in
the Collection Account as part of the Collateral as herein provided., all
payments of amounts due and payable with respect to any Bonds that are to be
made from amounts withdrawn from the Collection Account pursuant to On any
Business Day upon which the Trustee receives a written request from the
Administrator stating that any Operating Expense payable by the Issuer (but
only as described in clauses (i) through (iv) below) will become due and
payable prior to the next succeeding Payment Date, and setting forth the
amount and nature of such Operating Expenses, as well as any supporting
documentation that the Trustee may reasonably request, the Trustee, upon
receipt of such information, will make payment of such Operating Expenses on
or before the date such payment is due from amounts on deposit in the General
Subaccount, the Reserve Subaccount, the Overcollateralization Subaccount and
the Capital Subaccount, in that order and only to the extent required to make
such payment. shall be made on behalf of the Issuer by the Trustee or by
another Paying Agent, and no amounts so withdrawn from the Collection Account
for payments of Bonds shall be paid over to the Issuer except as provided in
this Section and Collection Account..
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts as Paying Agent, it
hereby so agrees), subject to the provisions of this Section, that such
Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with
respect to the Bonds in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and pay such sums to such Persons as herein provided;
(b) give the Trustee notice of any Default by the Issuer (or any
other obligor upon the Bonds) of which it has actual knowledge in the making
of any payment required to be made with respect to the Bonds;
(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to the
Trustee all sums held by it in trust for the payment of Bonds if at any time
it ceases to meet the standards required to be met by a Paying Agent at the
time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Bonds of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or other
applicable abandoned property laws, any money held by the Trustee or any
Paying Agent in trust for the payment of any amount due with respect to any
Bond and remaining unclaimed for two years after such amount has become due
and payable shall be discharged from such trust and be paid to the Issuer on
Issuer Request; and, subject to Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Trustee or any other
counsel reasonably acceptable to the Trustee) to the effect that such
recording is necessary either for the protection of the Bondholders or any
other Person secured hereunder or for the enforcement of any right or remedy
granted to the Trustee under this Indenture., the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
The Trustee may also adopt and employ, at the expense of the Issuer, any
other reasonable means of notification of such repayment (including mailing
notice of such repayment to Holders whose Bonds have been called but have not
been surrendered for redemption or whose right to or interest in moneys due
and payable but not claimed is determinable from the records of the Trustee
or of any Paying Agent, at the last address of record for each such Holder).
Section 3.04. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a limited liability company under the
laws of the State of Delaware (unless, subject to the provisions of Issuer
May Consolidate, etc., Only on Certain Terms., it becomes, or any successor
Issuer hereunder is or becomes, organized under the laws of any other State
or of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Bonds, the
Collateral and each other instrument or agreement included in the Collateral.
Section 3.05. Protection of Collateral. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all
such filings with the NHPUC pursuant to the Statute, financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the Lien (and the priority thereof) of
this Indenture or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(c) enforce any of the Collateral;
(d) preserve and defend title to the Collateral and the rights of
the Trustee and the Bondholders in such Collateral against the claims of all
Persons and parties, including the challenge by any party to the validity or
enforceability of the Finance Order, any Issuance Advice Letter or the RRB
Property or any proceeding relating thereto and institute any action or
proceeding necessary to compel performance by the NHPUC or the State of New
Hampshire of any of its obligations or duties under the Statute, the Finance
Order or any Issuance Advice Letter; or
(e) pay any and all taxes levied or assessed upon all or any part
of the Collateral.
The Issuer hereby designates the Trustee its agent and attorney-in-fact
to execute any filings with the NHPUC pursuant to the Statute, financing
statement, continuation statement or other instrument required by the Trustee
pursuant to this Section, it being understood that the Trustee shall have no
such obligation. The Trustee agrees not to execute any such filings prior to
a Default unless the Issuer shall have failed to make any such filing on a
timely basis, which in the case of continuation statements with respect to
financing statements and similar instruments shall mean at least five
Business Days prior to the expiration date for such filing.
The Issuer hereby agrees to file promptly after the date hereof, and the
Trustee hereby authorizes the filing of, financing statements in lieu of
continuation statements with respect to the financing statements filed in New
Hampshire on or prior to the Issuance Date that name the Issuer as debtor in
accordance with the provisions of Article 9 of the Delaware UCC to take
effect after June 30, 2001.
Section 3.06. Opinions as to Collateral.
(a) On the Issuance Date, the Issuer shall furnish to the Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel,
(A) such action has been taken (and reciting the details of such action) with
respect to the recording and filing of this Indenture and any other requisite
documents, and with respect to the execution and filing of any filings with
the NHPUC pursuant to the Statute, financing statements and continuation
statements, as are necessary to perfect the Lien of this Indenture, or (B) no
such action is necessary to make such Lien effective.
(b) Prior to the effectiveness of any amendment to the Sale
Agreement, the Issuer shall furnish to the Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all filings,
including filings with the NHPUC pursuant to the Statute and any UCC
financing statements, have been executed and filed that are necessary fully
to preserve and protect the interest of the Issuer and the Trustee in the RRB
Property and the proceeds thereof, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest.
(c) The Issuer shall furnish to the Trustee not later than
March 31 of each year (commencing with March 31, 2002), an Opinion of Counsel
either stating that, in the opinion of such counsel, (A) such action has been
taken (and reciting the details of such action or referring to prior Opinions
of Counsel in which such details are given) with respect to the recording and
filing of this Indenture and any other requisite documents, and with respect
to the execution and filing of any filings with the NHPUC pursuant to the
Statute, financing statements and continuation statements, as are necessary
to maintain and continue the perfection and priority of the Lien of this
Indenture until March 31 of the following year, or (B) no such action is
necessary to maintain such Lien.
Section 3.07. Performance of Obligations; Servicing; NHPUC Filings.
(a) The Issuer (i) will diligently pursue any and all actions to
enforce its rights under each instrument or agreement included in the
Collateral and (ii) will not take any action and will use its reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's covenants or obligations under any such
instrument or agreement or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except, in each case, as
expressly permitted in this Indenture, the Sale Agreement, the Servicing
Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrator and the Servicer to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Collateral, including
filing or causing to be filed all filings with the NHPUC pursuant to the
Statute, UCC financing statements and continuation statements required to be
filed by it by the terms of this Indenture, the Sale Agreement and the
Servicing Agreement in accordance with and within the time periods provided
for herein and therein. Except as otherwise expressly permitted therein, the
Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the written consent of the Trustee
(which consent shall not be withheld if (i) the Trustee shall have received
an Officer's Certificate stating that such waiver, amendment, modification,
supplement or termination shall not adversely affect in any material respect
the interests of the Bondholders and (ii) the Rating Agency Condition shall
have been satisfied with respect thereto) or the Holders of at least a
majority of the Outstanding Amount of Bonds.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default under the Servicing Agreement, the Issuer shall promptly
give written notice thereof to the Trustee and the Rating Agencies, and shall
specify in such notice the action, if any, the Issuer is taking with respect
to such default. If a Servicer Default shall arise from the failure of the
Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the RRB Property, including the RRB Charge, the
Issuer shall take all reasonable steps available to it to remedy such
failure.
(e) As promptly as possible after the giving of notice to the
Servicer, the Trustee and the Rating Agencies of termination of the
Servicer's rights and powers pursuant to Section 7.01 of the Servicing
Agreement, the Issuer, subject to the approval of the NHPUC pursuant to the
Finance Order, shall appoint a successor Servicer (the "Successor Servicer")
with the Trustee's prior written consent thereto (which consent shall not be
unreasonably withheld), and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Issuer and
the Trustee. A Person shall qualify as a Successor Servicer only if such
Person satisfies the requirements of the Servicing Agreement. If within
30 days after the delivery of the notice referred to above, the Issuer shall
not have obtained such a new Servicer, the Trustee may petition the NHPUC or
a court of competent jurisdiction to appoint a Successor Servicer. In
connection with any such appointment, the Issuer may make such arrangements
for the compensation of such successor as it and such successor shall agree,
subject to the limitations set forth below and in the Servicing Agreement,
and in accordance and in compliance with Section 7.02 of the Servicing
Agreement, the Issuer shall enter into an agreement with such successor for
the servicing of the RRB Property (such agreement to be in form and substance
reasonably satisfactory to the Trustee).
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the Trustee shall promptly notify the
Issuer, the Bondholders and the Rating Agencies. As soon as a Successor
Servicer is appointed, the Issuer shall notify the Trustee, the Bondholders
and the Rating Agencies of such appointment, specifying in such notice the
name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Trustee under this Indenture or the rights of the Trustee
hereunder, the Issuer agrees that it will not, without the prior written
consent of the Trustee (which consent shall not be withheld if (i) the
Trustee shall have received an Officer's Certificate stating that such
amendment, modification, waiver, supplement, termination or surrender shall
not adversely affect in any material respect the interests of the Bondholders
and (ii) the Rating Agency Condition shall have been satisfied with respect
thereto) or the Holders of at least a majority in Outstanding Amount of the
Bonds, amend, modify, waive, supplement, terminate or surrender, or agree to
any amendment, modification, waiver, supplement, termination or surrender of,
the terms of any Collateral or the Basic Documents, or waive timely
performance or observance of any material term by the Seller or the Servicer
under the Sale Agreement or the Servicing Agreement, respectively. If any
such amendment, modification, supplement or waiver shall be so consented to
by the Trustee or such Holders, the Issuer agrees to execute and deliver, in
its own name and at its own expense, such agreements, instruments, consents
and other documents as shall be necessary or appropriate in the
circumstances. The Issuer agrees that no such amendment, modification,
supplement or waiver shall adversely affect the rights of the Holders of the
Bonds Outstanding at the time of any such amendment, modification, supplement
or waiver, except as otherwise agreed to by the Holders in accordance with
the Basic Documents.
(h) The Issuer shall file with the Commission such periodic
reports, if any, as are required from time to time under Section 13 or 15(d)
of the Exchange Act.
(i) The Issuer shall make all filings required under the Statute
relating to the transfer of the ownership or security interest in the RRB
Property other than those required to be made by the Seller pursuant to the
Basic Documents.
Section 3.08. Negative Covenants. So long as any Bonds are
Outstanding, the Issuer shall not:
(a) except as expressly permitted by this Indenture, sell,
transfer, exchange or otherwise dispose of any of the properties or assets
of the Issuer, including those included in the Collateral, unless directed to
do so by the Trustee in accordance with Remedies;
(b) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Bonds (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Bondholder by reason of the payment of the taxes levied or
assessed upon any part of the Collateral;
(c) terminate its existence or dissolve or liquidate in whole or
in part; or
(d) (A) permit the validity or effectiveness of this Indenture to
be impaired, or permit the Lien of this Indenture to be amended,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Bonds under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the Lien of this Indenture and the Statutory Lien) to be created
by the Issuer on or extend to or otherwise arise upon or burden the
Collateral or any part thereof or any interest therein or the proceeds
thereof or (C) subject to the Statutory Lien, permit the Lien of this
Indenture not to constitute a valid first priority security interest in the
Collateral.
Section 3.09. Annual Statement as to Compliance. The Issuer will
deliver to the Trustee and the Rating Agencies not later than March 31 of
each year (commencing with March 31, 2002), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that
(a) a review of the activities of the Issuer during the preceding
twelve months ended December 31 (or, in the case of the Officer's Certificate
to be delivered on or before March 31, 2002, the period of time from the date
of this Indenture until December 31, 2001), and of performance under this
Indenture has been made under such Authorized Officer's supervision; and
(b) to such Authorized Officer's knowledge, based on such review,
the Issuer has complied with all conditions and covenants under this
Indenture throughout such twelve month period, or, if there has been a
default in so complying with any such condition or covenant, specifying each
such default known to such Authorized Officer and the nature and status
thereof.
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form and substance reasonably satisfactory
to the Trustee, the due and punctual payment of the principal of and
interest on all Bonds and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee) to the effect that
such transaction will not have any material adverse tax consequence to
the Issuer or any Bondholder;
(v) any action as is necessary to maintain the Lien created by
this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Issuer May Consolidate, etc., Only on Certain Terms. and that all
conditions precedent herein provided for relating to such transaction
have been complied with (including any filing required by the Exchange
Act).
(b) Except as specifically provided herein, the Issuer shall not
convey or transfer any of its properties or assets, including those included
in the Collateral, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any State, (B) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all Bonds and the performance or observance
of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein,
(C) expressly agrees by means of such supplemental indenture that all
right, title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the Bonds, (D) unless
otherwise provided in the supplemental indenture referred to in clause
(B) above, expressly agrees to indemnify, defend and hold harmless the
Trustee against and from any loss, liability or expense arising under or
related to this Indenture and the Bonds and (E) expressly agrees by
means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Bonds;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee) to the effect that
such transaction will not have any material adverse tax consequence to
the Issuer or any Bondholder ;
(v) any action as is necessary to maintain the Lien created by
this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such conveyance
or transfer and such supplemental indenture comply with this Issuer May
Consolidate, etc., Only on Certain Terms. and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
Section 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance
with The Issuer shall not consolidate or merge with or into any other Person,
unless, the Person formed by or surviving such consolidation or merger (if
other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein.
(b) Except as set forth in Statements to Bondholders.
(a) So long as the Trustee is the Registrar and Paying Agent, it
shall deliver to each Bondholder such information in its possession as may be
required to enable such Holder to prepare its federal and state income tax
returns.
(b) On or prior to each Payment Date therefor, the Trustee will
deliver to each Holder of Bonds on such Payment Date a statement as provided
and prepared by the Servicer which will include (to the extent applicable)
the following information as to the Bonds with respect to such Payment Date
or the period since the previous Payment Date, as applicable:
(i) the amount of the payment to Bondholders allocable to
principal (such amount to be expressed as an aggregate dollar amount and
as a dollar amount per $1,000 of original principal amount);
(ii) the amount of the payment to Bondholders allocable to interest
(such amount to be expressed as an aggregate dollar amount and as a
dollar amount per $1,000 of original principal amount);
(iii) the Outstanding Amount of the Bonds, after giving effect
to payments allocated to principal reported under (i) above;
(iv) the difference, if any, between the Outstanding Amount of the
Bonds and the Projected Principal Balance as of such Payment Date, after
giving effect to payments to be made on such Payment Date;
(v) the balance of amounts on deposit in the Reserve Subaccount
after giving effect to payments or allocations made or to be made on
such Payment Date;
(vi) the balance of amounts on deposit in the Overcollateralization
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(vii) the balance of amounts on deposit in the Capital
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(viii) the balance of amounts on deposit in the Interest Reserve
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date; and
(ix) the balance of amounts on deposit in the Servicer Advance
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date.
On each date on which the Trustee distributes any such report to the Holders
of the Bonds of any Class, the Trustee shall also distribute such report to
each Rating Agency.
(c) The Issuer shall send a copy of each Certificate of Compliance
delivered to it pursuant to Section 3.03 of the Servicing Agreement and each
Annual Accountant's Report delivered to it pursuant to Section 3.04 of the
Servicing Agreement to the Trustee, the Bondholders and the Rating Agencies.
(d) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was a Holder of any Class of Bonds and received a payment thereon, a
statement containing the sum of the amounts determined pursuant to
clause (b)(i) or (ii) above with respect to such Class of Bonds for such
calendar year, or, in the event such Person was a Holder of such Class of
Bonds during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
that a Bondholder shall reasonably request as necessary for the purpose of
such Bondholder 's preparation of its federal income tax returns.
Section 6.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it, including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify, defend and hold
harmless the Trustee and any of its affiliates, officials, officers,
directors, employees, consultants, counsel and agents (the "Indemnified
Persons") from and against any and all losses, claims, actions, suits, taxes,
damages, expenses (including, without limitation, legal fees and expenses)
and liabilities (including liabilities under state or federal securities
laws) of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of or are imposed upon or asserted
against such Indemnified Persons with respect to the creation,
administration, operation, enforcement or termination of this trust and the
performance by the Trustee of its duties hereunder, the failure of the Issuer
or any other Person (other than the Person being indemnified) to perform its
obligations hereunder or under any of the Basic Documents, or otherwise in
connection with the Basic Documents or the transactions contemplated thereby,
provided, however, that the Issuer is not required to indemnify any
Indemnified Person for any Expenses that result from the willful misconduct
or gross negligence of such Indemnified Person and, provided, further, that
any Expenses payable to any Indemnified Person hereunder shall be paid to the
Trustee for deposit into and distribution from the Collection Account in
accordance with Article VIII. The willful misconduct or negligence of any
Trustee shall not affect the rights of any predecessor or successor Trustee
hereunder. The Issuer shall not be required to indemnify an Indemnified
Person for any amount paid or payable by such Indemnified Person pursuant to
this Section 6.07 in the settlement of any action, proceeding or
investigation without the written consent of the Issuer, 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 Issuer under this Section 6.07,
notify the Issuer in writing of such involvement. Failure by an Indemnified
Person to so notify the Issuer shall relieve the Issuer from the obligation
to indemnify and hold harmless such Indemnified Person under this Section
6.07, only to the extent that the Issuer 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 6.07, the Issuer shall be entitled to assume the defense of any such
action, proceeding or investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel
of the Issuer's choice at the Issuer's expense to represent the Indemnified
Person in any action, proceeding or investigation for which a claim of
indemnification is made against the Issuer under this Section 6.07 (in which
case the Issuer shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the Indemnified Person except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Issuer'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 Issuer shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the Issuer 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 Issuer 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 Issuer, (iii) the
Issuer 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 Issuer shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Issuer. Notwithstanding the foregoing, the Issuer shall not be obligated
to pay for the fees, costs and expenses of more than one separate counsel for
the Indemnified Persons (in addition to local counsel). The Issuer 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 6.07 (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. Indemnification under this Section 6.07
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., upon a conveyance or transfer of all
the assets and properties of the Issuer pursuant to Except as specifically
provided herein, the Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral, to any
Person, unless, PSNH Funding LLC will be released from every covenant and
agreement of this Indenture to be observed or performed on the part of the
Issuer with respect to the Bonds immediately upon the delivery of written
notice by PSNH Funding LLC to the Trustee stating that PSNH Funding LLC is to
be so released.
Section 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning and managing the RRB
Property in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Bonds.
Section 3.14. Servicer's Obligations. The Issuer shall enforce the
Servicer's compliance with all of the Servicer's material obligations under
the Servicing Agreement.
Section 3.15. No Additional Bonds. The Issuer shall not issue any
additional Bonds hereunder, except pursuant to Registration; Registration of
Transfer and Exchange. The Issuer shall cause to be kept a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Bonds and the
registration of transfers of Bonds. The Trustee shall be "Registrar" for the
purpose of registering Bonds and transfers and exchanges of Bonds as herein
provided. Upon any resignation of any Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment, assume
the duties of Registrar. or Mutilated, Destroyed, Lost or Stolen Bonds. If
(i) any mutilated Bond is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of
any Bond, and (ii) there is delivered to the Registrar and the Trustee such
security, indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer, the Registrar or the
Trustee that such Bond has been acquired by a protected purchaser, the Issuer
shall execute and, upon its request, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Bond, a replacement Bond of like Class, tenor and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that
if any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall
have become or within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Bond, the Issuer may
pay such destroyed, lost or stolen Bond when so due or payable or upon the
Optional Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith..
Section 3.16. Guarantees, Loans, Advances and Other Liabilities.
Except as otherwise contemplated by the Sale Agreement, the Servicing
Agreement or this Indenture, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an instrument having
the effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, or any other interest in, or make any capital contribution to, any other
Person.
Section 3.17. Capital Expenditures. Other than expenditures in an
aggregate amount not to exceed $25,000 in any calendar year, the Issuer shall
not make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty).
Section 3.18. Non-Routine Periodic Adjustment. The Issuer agrees that
it shall not consent to a Non-Routine Periodic Adjustment pursuant to
Section 4.01(c) of the Servicing Agreement unless the Rating Agency Condition
shall have been satisfied.
Section 3.19. Restricted Payments. The Issuer shall not, directly or
indirectly, while the Bonds are Outstanding (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security
or (iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, any such
distributions to any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or
of the Issuer using funds distributed to the Issuer pursuant to On any
Business Day upon which the Trustee receives a written request from the
Servicer stating that (A) the Servicer is obligated under Section 5.02(d) of
the Servicing Agreement to institute any action or proceeding on behalf of
Bondholders to compel performance by the NHPUC or the State of New Hampshire
of any of their obligations or duties under the Statute, the Finance Order or
any Advice Letter, (B) in order to satisfy such obligations, the Servicer
must incur Operating Expenses that are payable from RRB Charge Collections in
accordance with Section 5.02(d) of the Servicing Agreement, (C) the Servicer
is obligated under Section 5.02(d) of the Servicing Agreement to advance its
own funds to pay such Operating Expenses because payment of such Operating
Expenses pursuant to Section 8.02(d) has been delayed and (D) the Servicer is
unable to advance its own funds to pay such Operating Expenses, and setting
forth the amount and nature of such Operating Expenses, as well as any
supporting documentation that the Trustee may reasonably request, the
Trustee, upon receipt of such information, will make payment on account of
such Operating Expenses on or before the date such payment is due from
amounts on deposit in the Servicer Advance Subaccount, only to the extent
required to make such payment. Amounts paid on account of any Operating
Expenses pursuant to this Section 8.02(j) shall not be replenished to the
Servicer Advance Subaccount, and the Operating Expenses on account of which
such amounts were paid shall remain payable as Operating Expenses advanced by
the Servicer in accordance with Section 5.02(d) of the Servicing Agreement
and Section 8.02(d). On the last day of each month, the Trustee shall pay to
the Issuer, upon receipt of an Issuer Request, free from the Lien of this
Indenture, all amounts on deposit in the Servicer Advance Subaccount that
represent net investment earnings on the Servicer Advance Subaccount.
Amounts on deposit in the Servicer Advance Subaccount shall be applied only
in accordance with this Section 8.02(j) and, upon termination of this
Indenture, shall be released from the Lien of this Indenture in accordance
with Section 8.05(b).; and provided, further, that, if no Event of Default
shall have occurred and be continuing, the Issuer may make, or cause to be
made, any such distributions to any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer using funds distributed to the Issuer pursuant
to the other provisions of Collection Account. to the extent that such
distributions would not cause the amount of the Capital Subaccount to decline
below the Required Capital Level. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
Section 3.20. Notice of Events of Default. The Issuer agrees to give
the Trustee, and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Seller or the Servicer
of its obligations under the Sale Agreement or the Servicing Agreement,
respectively.
Without limiting the foregoing, the Issuer shall deliver to a
Responsible Officer of the Trustee and to the Rating Agencies, within five
Business Days after an Authorized Officer of the Issuer has knowledge of the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become
an Event of Default under Section 5.010, its status and what action the
Issuer is taking or proposes to take with respect thereto.
Section 3.21. Further Instruments and Acts. Upon request of the
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture. The Issuer will take all actions,
and make all filings, necessary to obtain and maintain a first priority
perfected security interest in the Collateral in favor of the Trustee.
Section 3.22. Change in Chief Executive Office or Jurisdiction of
Organization. The Issuer shall not change its chief executive office or the
jurisdiction of its formation without previously having delivered to the
Trustee an Opinion of Counsel to the effect that all actions have been taken,
and all filings have been made, as are necessary to continue and maintain the
first priority perfected security interest of the Trustee in the Collateral.
Section 3.23. Notice to Rating Agencies of Amendment of Other Basic
Documents. Promptly after the execution of any amendment to any of the Basic
Documents (other than this Indenture), the Issuer shall mail to the Rating
Agencies a notice setting forth in general terms the substance of such
amendment. Any failure of the Issuer to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment. If any such amendment requires satisfaction of the Rating
Agency Condition, the notice requirements contained in this are in
addition to the notice requirements
that may otherwise apply. Notice to the Rating Agencies of the execution by
the Issuer and the Trustee of any supplemental indenture pursuant to
Supplemental Indentures Without Consent of Bondholders. Without the consent
of the Bondholders but with prior notice to the Rating Agencies, the Issuer
and the Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force
at the date of the execution thereof), in form reasonably satisfactory to the
Trustee, for any of the following purposes: or Supplemental Indentures with
Consent of Bondholders. The Issuer and the Trustee, when authorized by an
Issuer Order, also may, with prior notice to the Rating Agencies, and with
the consent of the Holders of not less than a majority of the Outstanding
Amount of the Bonds of each Class to be affected, by Act of such Holders
delivered to the Issuer and the Trustee, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to,
or changing in any manner or eliminating any of the provisions of, this
Indenture or of modifying in any manner the rights of the Holders of the
Bonds under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Bond
of each Class affected thereby: shall be given by the Trustee in accordance
with such Section.
ARTICLE IV
Satisfaction and Discharge; Defeasance
Section 4.01. Satisfaction and Discharge of Indenture; Defeasance.
(a) This Indenture shall cease to be of further effect with
respect to the Bonds and the Trustee, on reasonable demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Bonds, when
(i) either all Bonds theretofore authenticated and delivered
(other than (i) Bonds that have been mutilated, destroyed, lost or
stolen and that have been replaced or paid as provided in Mutilated,
Destroyed, Lost or Stolen Bonds. If (i) any mutilated Bond is
surrendered to the Registrar, or the Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Bond, and
(ii) there is delivered to the Registrar and the Trustee such security,
indemnity or bond as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer, the Registrar or
the Trustee that such Bond has been acquired by a protected purchaser,
the Issuer shall execute and, upon its request, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Bond, a replacement Bond of like
Class, tenor and principal amount, bearing a number not
contemporaneously outstanding; provided, however, that if any such
destroyed, lost or stolen Bond, but not a mutilated Bond, shall have
become or within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Bond, the Issuer
may pay such destroyed, lost or stolen Bond when so due or payable or
upon the Optional Redemption Date or Mandatory Redemption Date, as
applicable, without surrender thereof. If, after the delivery of such
replacement Bond or payment of a destroyed, lost or stolen Bond pursuant
to the proviso to the preceding sentence, a protected purchaser of the
original Bond in lieu of which such replacement Bond was issued presents
for payment such original Bond, the Issuer and the Trustee shall be
entitled to recover such replacement Bond (or such payment) from the
Person to whom it was delivered or any Person taking such replacement
Bond from such Person to whom such replacement Bond was delivered or any
assignee of such Person, except a protected purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Issuer
or the Trustee in connection therewith. and (ii) Bonds for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged
from such trust, as provided in Money for Payments To Be Held in Trust.
As provided in Prior to the Issuance Date, the Issuer shall open, at the
Trustee's Corporate Trust Office, or at another Eligible Institution,
one or more segregated trust accounts in the Trustee's name for the
deposit of amounts remitted to the Trustee for deposit therein on the
Issuance Date, RRB Charge Payments and other amounts remitted under the
Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of
Bondholders, the Trustee and the other Persons indemnified hereunder or
under the Fee and Indemnity Agreement. The Collection Account will
consist of six subaccounts (which need not be separate bank accounts):
a general subaccount (the "General Subaccount"), a reserve subaccount
(the "Reserve Subaccount"), an overcollateralization subaccount (the
"Overcollateralization Subaccount"), a capital subaccount (the "Capital
Subaccount"), an interest reserve subaccount (the "Interest Reserve
Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to
any other subaccount shall be allocated to the General Subaccount.
Prior to the initial Payment Date, all amounts in the Collection Account
(other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount.
All references to the Collection Account shall be deemed to include
reference to all subaccounts contained therein. Withdrawals from and
deposits to each of the foregoing subaccounts of the Collection Account
shall be made as set forth in this Section 8.02. The Collection Account
shall at all times be maintained in an Eligible Deposit Account and only
the Trustee shall have access to the Collection Account for the purpose
of making deposits in and withdrawals from the Collection Account in
accordance with this Indenture. Funds in the Collection Account shall
not be commingled with any other moneys. Except as provided in Section
8.03, all moneys deposited from time to time in the Collection Account,
all deposits therein pursuant to this Indenture, and all investments
made in Eligible Investments with such moneys, including all income or
other gain from such investments, shall be held by the Trustee in the
Collection Account as part of the Collateral as herein provided., all
payments of amounts due and payable with respect to any Bonds that are
to be made from amounts withdrawn from the Collection Account pursuant
to On any Business Day upon which the Trustee receives a written request
from the Administrator stating that any Operating Expense payable by the
Issuer (but only as described in clauses (i) through (iv) below) will
become due and payable prior to the next succeeding Payment Date, and
setting forth the amount and nature of such Operating Expenses, as well
as any supporting documentation that the Trustee may reasonably request,
the Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from
amounts on deposit in the General Subaccount, the Reserve Subaccount,
the Overcollateralization Subaccount and the Capital Subaccount, in that
order and only to the extent required to make such payment. shall be
made on behalf of the Issuer by the Trustee or by another Paying Agent,
and no amounts so withdrawn from the Collection Account for payments of
Bonds shall be paid over to the Issuer except as provided in this
Section and Collection Account..) have been delivered to the Trustee for
cancellation; or the Scheduled Maturity Date or Redemption Date has
occurred with respect to all Bonds not theretofore delivered to the
Trustee for cancellation, and the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee cash, in trust for
such purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Bonds not theretofore delivered to the Trustee for
cancellation on the Scheduled Maturity Date therefor;
(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the Trust
Indenture Act or the Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the
Trust Indenture Act) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section,
except that, in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need
be furnished. and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture with respect to the Bonds have been complied with.
(b) Subject to Sections Notwithstanding Sections 4.01(a) and
4.01(b), (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Bonds, (iii) rights
of Bondholders to receive payments of principal and interest,
(iv) Sections 4.03, 4.04 and 11.19, (v) the rights, obligations and
immunities of the Trustee hereunder (including the rights of the Trustee
under Section 6.07 and the obligations of the Trustee under Section 4.03) and
(vi) the rights of Bondholders as beneficiaries hereof with respect to the
property deposited with the Trustee payable to all or any of them, shall
survive until the Bonds, as to which this Indenture or certain obligations
hereunder have been satisfied and discharged pursuant to Section 4.01(a) or
4.01(b), have been paid in full. Thereafter, the obligations in
Sections 4.04, Section 6.07 and 11.19 shall survive. and 0, the Issuer at any
time may terminate (i) all its obligations under this Indenture with respect
to the Bonds ("Legal Defeasance Option") or (ii) its obligations under
Sections Existence. The Issuer will keep in full effect its existence,
rights and franchises as a limited liability company under the laws of the
State of Delaware (unless, subject to the provisions of Issuer May
Consolidate, etc., Only on Certain Terms., it becomes, or any successor
Issuer hereunder is or becomes, organized under the laws of any other State
or of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Bonds, the
Collateral and each other instrument or agreement included in the
Collateral., Protection of Collateral. The Issuer will from time to time
execute and deliver all such supplements and amendments hereto and all such
filings with the NHPUC pursuant to the Statute, financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:,
Opinions as to Collateral., Performance of Obligations; Servicing; NHPUC
Filings., Negative Covenants. So long as any Bonds are Outstanding, the
Issuer shall not:, Annual Statement as to Compliance. The Issuer will
deliver to the Trustee and the Rating Agencies not later than March 31 of
each year (commencing with March 31, 2002), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that, Issuer
May Consolidate, etc., Only on Certain Terms., No Other Business. The Issuer
shall not engage in any business other than financing, purchasing, owning and
managing the RRB Property in the manner contemplated by this Indenture and
the Basic Documents and activities incidental thereto., No Borrowing. The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness except for the Bonds.,
Servicer's Obligations. The Issuer shall enforce the Servicer's compliance
with all of the Servicer's material obligations under the Servicing
Agreement., No Additional Bonds. The Issuer shall not issue any additional
Bonds hereunder, except pursuant to Registration; Registration of Transfer
and Exchange. The Issuer shall cause to be kept a register (the "Register")
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Bonds and the registration of
transfers of Bonds. The Trustee shall be "Registrar" for the purpose of
registering Bonds and transfers and exchanges of Bonds as herein provided.
Upon any resignation of any Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Registrar. or Mutilated, Destroyed, Lost or Stolen Bonds. If (i) any
mutilated Bond is surrendered to the Registrar, or the Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Bond,
and (ii) there is delivered to the Registrar and the Trustee such security,
indemnity or bond as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer, the Registrar or the Trustee
that such Bond has been acquired by a protected purchaser, the Issuer shall
execute and, upon its request, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Bond, a replacement Bond of like Class, tenor and principal amount, bearing a
number not contemporaneously outstanding; provided, however, that if any such
destroyed, lost or stolen Bond, but not a mutilated Bond, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Bond, the Issuer may pay such
destroyed, lost or stolen Bond when so due or payable or upon the Optional
Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith..,
Guarantees, Loans, Advances and Other Liabilities. Except as otherwise
contemplated by the Sale Agreement, the Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person., Capital
Expenditures. Other than expenditures in an aggregate amount not to exceed
$25,000 in any calendar year, the Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty
or personalty). and Non-Routine Periodic Adjustment. The Issuer agrees that
it shall not consent to a Non-Routine Periodic Adjustment pursuant to
Section 4.01(c) of the Servicing Agreement unless the Rating Agency Condition
shall have been satisfied. and the operation of (i) default in the observance
or performance in any material respect of any covenant or agreement of the
Issuer made in this Indenture (other than a covenant or agreement, a default
in the observance or performance of which is elsewhere in this
Section specifically dealt with), or (ii) any representation or warranty of
the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made and, in any case under clause (i) or clause (ii), such default
shall continue or not be cured, or the circumstance or condition in respect
of which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25 percent of the
Outstanding Amount of the Bonds, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or ("Covenant
Defeasance Option") with respect to the Bonds. The Issuer may exercise the
Legal Defeasance Option notwithstanding its prior exercise of the Covenant
Defeasance Option.
If the Issuer exercises the Legal Defeasance Option, the maturity of the
Bonds may not be accelerated because of an Event of Default. If the Issuer
exercises the Covenant Defeasance Option, the maturity of the Bonds may not
be accelerated because of an Event of Default specified in (i) default in the
observance or performance in any material respect of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere
in this Section specifically dealt with), or (ii) any representation or
warranty of the Issuer made in this Indenture or in any certificate or other
writing delivered pursuant hereto or in connection herewith proving to have
been incorrect in any material respect as of the time when the same shall
have been made and, in any case under clause (i) or clause (ii), such default
shall continue or not be cured, or the circumstance or condition in respect
of which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25 percent of the
Outstanding Amount of the Bonds, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or.
Upon satisfaction of the conditions set forth herein to the exercise of
the Legal Defeasance Option or the Covenant Defeasance Option, the Trustee,
on reasonable demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of the
obligations that are terminated pursuant to such exercise.
(c) Notwithstanding Sections This Indenture shall cease to be of
further effect with respect to the Bonds and the Trustee, on reasonable
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
the Bonds, when and Subject to Sections Notwithstanding Sections 4.01(a) and
4.01(b), (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Bonds, (iii) rights
of Bondholders to receive payments of principal and interest,
(iv) Sections 4.03, 4.04 and 11.19, (v) the rights, obligations and
immunities of the Trustee hereunder (including the rights of the Trustee
under Section 6.07 and the obligations of the Trustee under Section 4.03) and
(vi) the rights of Bondholders as beneficiaries hereof with respect to the
property deposited with the Trustee payable to all or any of them, shall
survive until the Bonds, as to which this Indenture or certain obligations
hereunder have been satisfied and discharged pursuant to Section 4.01(a) or
4.01(b), have been paid in full. Thereafter, the obligations in
Sections 4.04, Section 6.07 and 11.19 shall survive. and 0, the Issuer at any
time may terminate (i) all its obligations under this Indenture with respect
to the Bonds ("Legal Defeasance Option") or (ii) its obligations under
Sections Existence. The Issuer will keep in full effect its existence,
rights and franchises as a limited liability company under the laws of the
State of Delaware (unless, subject to the provisions of Issuer May
Consolidate, etc., Only on Certain Terms., it becomes, or any successor
Issuer hereunder is or becomes, organized under the laws of any other State
or of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Bonds, the
Collateral and each other instrument or agreement included in the
Collateral., Protection of Collateral. The Issuer will from time to time
execute and deliver all such supplements and amendments hereto and all such
filings with the NHPUC pursuant to the Statute, financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:,
Opinions as to Collateral., Performance of Obligations; Servicing; NHPUC
Filings., Negative Covenants. So long as any Bonds are Outstanding, the
Issuer shall not:, Annual Statement as to Compliance. The Issuer will
deliver to the Trustee and the Rating Agencies not later than March 31 of
each year (commencing with March 31, 2002), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that, Issuer
May Consolidate, etc., Only on Certain Terms., No Other Business. The Issuer
shall not engage in any business other than financing, purchasing, owning and
managing the RRB Property in the manner contemplated by this Indenture and
the Basic Documents and activities incidental thereto., No Borrowing. The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness except for the Bonds.,
Servicer's Obligations. The Issuer shall enforce the Servicer's compliance
with all of the Servicer's material obligations under the Servicing
Agreement., No Additional Bonds. The Issuer shall not issue any additional
Bonds hereunder, except pursuant to Registration; Registration of Transfer
and Exchange. The Issuer shall cause to be kept a register (the "Register")
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Bonds and the registration of
transfers of Bonds. The Trustee shall be "Registrar" for the purpose of
registering Bonds and transfers and exchanges of Bonds as herein provided.
Upon any resignation of any Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Registrar. or Mutilated, Destroyed, Lost or Stolen Bonds. If (i) any
mutilated Bond is surrendered to the Registrar, or the Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Bond,
and (ii) there is delivered to the Registrar and the Trustee such security,
indemnity or bond as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer, the Registrar or the Trustee
that such Bond has been acquired by a protected purchaser, the Issuer shall
execute and, upon its request, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Bond, a replacement Bond of like Class, tenor and principal amount, bearing a
number not contemporaneously outstanding; provided, however, that if any such
destroyed, lost or stolen Bond, but not a mutilated Bond, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Bond, the Issuer may pay such
destroyed, lost or stolen Bond when so due or payable or upon the Optional
Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith..,
Guarantees, Loans, Advances and Other Liabilities. Except as otherwise
contemplated by the Sale Agreement, the Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person., Capital
Expenditures. Other than expenditures in an aggregate amount not to exceed
$25,000 in any calendar year, the Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty
or personalty). and Non-Routine Periodic Adjustment. The Issuer agrees that
it shall not consent to a Non-Routine Periodic Adjustment pursuant to
Section 4.01(c) of the Servicing Agreement unless the Rating Agency Condition
shall have been satisfied. and the operation of (i) default in the observance
or performance in any material respect of any covenant or agreement of the
Issuer made in this Indenture (other than a covenant or agreement, a default
in the observance or performance of which is elsewhere in this
Section specifically dealt with), or (ii) any representation or warranty of
the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made and, in any case under clause (i) or clause (ii), such default
shall continue or not be cured, or the circumstance or condition in respect
of which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25 percent of the
Outstanding Amount of the Bonds, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or ("Covenant
Defeasance Option") with respect to the Bonds. The Issuer may exercise the
Legal Defeasance Option notwithstanding its prior exercise of the Covenant
Defeasance Option., (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Bonds, (iii) rights
of Bondholders to receive payments of principal and interest,
(iv) Sections Application of Trust Money. All moneys or U.S. Government
Obligations deposited with the Trustee pursuant to Section 4.01 or 4.02 shall
be held in trust and applied by it, in accordance with the provisions of the
Bonds and this Indenture, to the payment, either directly or through any
Paying Agent, as the Trustee may determine, to the Holders of the particular
Bonds for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest, but such moneys need not be segregated from other funds except to
the extent required herein or in the Servicing Agreement or required by law.,
Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture or the Covenant Defeasance
Option or Legal Defeasance Option with respect to the Bonds, all moneys then
held by any Paying Agent other than the Trustee under the provisions of this
Indenture with respect to such Bonds shall, upon demand of the Issuer, be
paid to the Trustee to be held and applied according to Section 3.03 and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys. and Nonpetition Covenants. Notwithstanding any prior
termination of this Indenture, but subject to the NHPUC's right to order the
sequestration and payment of revenues arising with respect to the RRB
Property notwithstanding any bankruptcy, reorganization or other insolvency
proceedings with respect to the debtor, pledgor or transferor of the RRB
Property pursuant to RSA 369-B:7, VI and RSA 369-B:7, VIII, the Trustee shall
not, prior to the date which is one year and one day after the termination of
this Indenture with respect to the Issuer, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or governmental authority
for the purpose of commencing or sustaining a case against the Issuer 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 Issuer or any substantial part of the property of the
Issuer, or ordering the winding up or liquidation of the affairs of the
Issuer., (v) the rights, obligations and immunities of the Trustee hereunder
(including the rights of the Trustee under Compensation and Indemnity. The
Issuer shall pay to the Trustee from time to time reasonable compensation for
its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse
the Trustee for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by it, including costs of collection, in addition
to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Issuer shall
indemnify, defend and hold harmless the Trustee and any of its affiliates,
officials, officers, directors, employees, consultants, counsel and agents
(the "Indemnified Persons") from and against any and all losses, claims,
actions, suits, taxes, damages, expenses (including, without limitation,
legal fees and expenses) and liabilities (including liabilities under state
or federal securities laws) of any kind and nature whatsoever (collectively,
"Expenses"), to the extent that such Expenses arise out of or are imposed
upon or asserted against such Indemnified Persons with respect to the
creation, administration, operation, enforcement or termination of this trust
and the performance by the Trustee of its duties hereunder, the failure of
the Issuer or any other Person (other than the Person being indemnified) to
perform its obligations hereunder or under any of the Basic Documents, or
otherwise in connection with the Basic Documents or the transactions
contemplated thereby, provided, however, that the Issuer is not required to
indemnify any Indemnified Person for any Expenses that result from the
willful misconduct or gross negligence of such Indemnified Person and,
provided, further, that any Expenses payable to any Indemnified Person
hereunder shall be paid to the Trustee for deposit into and distribution from
the Collection Account in accordance with Article VIII. The willful
misconduct or negligence of any Trustee shall not affect the rights of any
predecessor or successor Trustee hereunder. The Issuer shall not be required
to indemnify an Indemnified Person for any amount paid or payable by such
Indemnified Person pursuant to this Section 6.07 in the settlement of any
action, proceeding or investigation without the written consent of the
Issuer, 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 Issuer under
this Section 6.07, notify the Issuer in writing of such involvement. Failure
by an Indemnified Person to so notify the Issuer shall relieve the Issuer
from the obligation to indemnify and hold harmless such Indemnified Person
under this Section 6.07, only to the extent that the Issuer 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 6.07, the Issuer shall be
entitled to assume the defense of any such action, proceeding or
investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel of the Issuer's
choice at the Issuer's expense to represent the Indemnified Person in any
action, proceeding or investigation for which a claim of indemnification is
made against the Issuer under this Section 6.07 (in which case the Issuer
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the Indemnified Person except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
Indemnified Person. Notwithstanding the Issuer'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 Issuer shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the Issuer 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 Issuer 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 Issuer, (iii) the Issuer 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 Issuer shall authorize the Indemnified
Person to employ separate counsel at the expense of the Issuer.
Notwithstanding the foregoing, the Issuer shall not be obligated to pay for
the fees, costs and expenses of more than one separate counsel for the
Indemnified Persons (in addition to local counsel). The Issuer 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 6.07 (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. Indemnification under this Section 6.07
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. and the obligations of the Trustee
under Application of Trust Money. All moneys or U.S. Government Obligations
deposited with the Trustee pursuant to Section 4.01 or 4.02 shall be held in
trust and applied by it, in accordance with the provisions of the Bonds and
this Indenture, to the payment, either directly or through any Paying Agent,
as the Trustee may determine, to the Holders of the particular Bonds for the
payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and
interest, but such moneys need not be segregated from other funds except to
the extent required herein or in the Servicing Agreement or required by law.)
and (vi) the rights of Bondholders as beneficiaries hereof with respect to
the property deposited with the Trustee payable to all or any of them, shall
survive until the Bonds, as to which this Indenture or certain obligations
hereunder have been satisfied and discharged pursuant to This Indenture shall
cease to be of further effect with respect to the Bonds and the Trustee, on
reasonable demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Bonds, when or Subject to Sections Notwithstanding
Sections 4.01(a) and 4.01(b), (i) rights of registration of transfer and
exchange, (ii) substitution of mutilated, destroyed, lost or stolen Bonds,
(iii) rights of Bondholders to receive payments of principal and interest,
(iv) Sections 4.03, 4.04 and 11.19, (v) the rights, obligations and
immunities of the Trustee hereunder (including the rights of the Trustee
under Section 6.07 and the obligations of the Trustee under Section 4.03) and
(vi) the rights of Bondholders as beneficiaries hereof with respect to the
property deposited with the Trustee payable to all or any of them, shall
survive until the Bonds, as to which this Indenture or certain obligations
hereunder have been satisfied and discharged pursuant to Section 4.01(a) or
4.01(b), have been paid in full. Thereafter, the obligations in
Sections 4.04, Section 6.07 and 11.19 shall survive. and 0, the Issuer at any
time may terminate (i) all its obligations under this Indenture with respect
to the Bonds ("Legal Defeasance Option") or (ii) its obligations under
Sections Existence. The Issuer will keep in full effect its existence,
rights and franchises as a limited liability company under the laws of the
State of Delaware (unless, subject to the provisions of Issuer May
Consolidate, etc., Only on Certain Terms., it becomes, or any successor
Issuer hereunder is or becomes, organized under the laws of any other State
or of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Bonds, the
Collateral and each other instrument or agreement included in the
Collateral., Protection of Collateral. The Issuer will from time to time
execute and deliver all such supplements and amendments hereto and all such
filings with the NHPUC pursuant to the Statute, financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:,
Opinions as to Collateral., Performance of Obligations; Servicing; NHPUC
Filings., Negative Covenants. So long as any Bonds are Outstanding, the
Issuer shall not:, Annual Statement as to Compliance. The Issuer will
deliver to the Trustee and the Rating Agencies not later than March 31 of
each year (commencing with March 31, 2002), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that, Issuer
May Consolidate, etc., Only on Certain Terms., No Other Business. The Issuer
shall not engage in any business other than financing, purchasing, owning and
managing the RRB Property in the manner contemplated by this Indenture and
the Basic Documents and activities incidental thereto., No Borrowing. The
Issuer shall not issue, incur, assume, guarantee or otherwise become liable,
directly or indirectly, for any indebtedness except for the Bonds.,
Servicer's Obligations. The Issuer shall enforce the Servicer's compliance
with all of the Servicer's material obligations under the Servicing
Agreement., No Additional Bonds. The Issuer shall not issue any additional
Bonds hereunder, except pursuant to Registration; Registration of Transfer
and Exchange. The Issuer shall cause to be kept a register (the "Register")
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Bonds and the registration of
transfers of Bonds. The Trustee shall be "Registrar" for the purpose of
registering Bonds and transfers and exchanges of Bonds as herein provided.
Upon any resignation of any Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Registrar. or Mutilated, Destroyed, Lost or Stolen Bonds. If (i) any
mutilated Bond is surrendered to the Registrar, or the Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Bond,
and (ii) there is delivered to the Registrar and the Trustee such security,
indemnity or bond as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer, the Registrar or the Trustee
that such Bond has been acquired by a protected purchaser, the Issuer shall
execute and, upon its request, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Bond, a replacement Bond of like Class, tenor and principal amount, bearing a
number not contemporaneously outstanding; provided, however, that if any such
destroyed, lost or stolen Bond, but not a mutilated Bond, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Bond, the Issuer may pay such
destroyed, lost or stolen Bond when so due or payable or upon the Optional
Redemption Date or Mandatory Redemption Date, as applicable, without
surrender thereof. If, after the delivery of such replacement Bond or
payment of a destroyed, lost or stolen Bond pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Bond in lieu of
which such replacement Bond was issued presents for payment such original
Bond, the Issuer and the Trustee shall be entitled to recover such
replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith..,
Guarantees, Loans, Advances and Other Liabilities. Except as otherwise
contemplated by the Sale Agreement, the Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person., Capital
Expenditures. Other than expenditures in an aggregate amount not to exceed
$25,000 in any calendar year, the Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty
or personalty). and Non-Routine Periodic Adjustment. The Issuer agrees that
it shall not consent to a Non-Routine Periodic Adjustment pursuant to
Section 4.01(c) of the Servicing Agreement unless the Rating Agency Condition
shall have been satisfied. and the operation of (i) default in the observance
or performance in any material respect of any covenant or agreement of the
Issuer made in this Indenture (other than a covenant or agreement, a default
in the observance or performance of which is elsewhere in this
Section specifically dealt with), or (ii) any representation or warranty of
the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made and, in any case under clause (i) or clause (ii), such default
shall continue or not be cured, or the circumstance or condition in respect
of which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25 percent of the
Outstanding Amount of the Bonds, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or ("Covenant
Defeasance Option") with respect to the Bonds. The Issuer may exercise the
Legal Defeasance Option notwithstanding its prior exercise of the Covenant
Defeasance Option., have been paid in full. Thereafter, the obligations in
Sections Repayment of Moneys Held by Paying Agent. In connection with the
satisfaction and discharge of this Indenture or the Covenant Defeasance
Option or Legal Defeasance Option with respect to the Bonds, all moneys then
held by any Paying Agent other than the Trustee under the provisions of this
Indenture with respect to such Bonds shall, upon demand of the Issuer, be
paid to the Trustee to be held and applied according to Section 3.03 and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys., Compensation and Indemnity. The Issuer shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it, including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify, defend and hold
harmless the Trustee and any of its affiliates, officials, officers,
directors, employees, consultants, counsel and agents (the "Indemnified
Persons") from and against any and all losses, claims, actions, suits, taxes,
damages, expenses (including, without limitation, legal fees and expenses)
and liabilities (including liabilities under state or federal securities
laws) of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of or are imposed upon or asserted
against such Indemnified Persons with respect to the creation,
administration, operation, enforcement or termination of this trust and the
performance by the Trustee of its duties hereunder, the failure of the Issuer
or any other Person (other than the Person being indemnified) to perform its
obligations hereunder or under any of the Basic Documents, or otherwise in
connection with the Basic Documents or the transactions contemplated thereby,
provided, however, that the Issuer is not required to indemnify any
Indemnified Person for any Expenses that result from the willful misconduct
or gross negligence of such Indemnified Person and, provided, further, that
any Expenses payable to any Indemnified Person hereunder shall be paid to the
Trustee for deposit into and distribution from the Collection Account in
accordance with Article VIII. The willful misconduct or negligence of any
Trustee shall not affect the rights of any predecessor or successor Trustee
hereunder. The Issuer shall not be required to indemnify an Indemnified
Person for any amount paid or payable by such Indemnified Person pursuant to
this Section 6.07 in the settlement of any action, proceeding or
investigation without the written consent of the Issuer, 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 Issuer under this Section 6.07,
notify the Issuer in writing of such involvement. Failure by an Indemnified
Person to so notify the Issuer shall relieve the Issuer from the obligation
to indemnify and hold harmless such Indemnified Person under this Section
6.07, only to the extent that the Issuer 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 6.07, the Issuer shall be entitled to assume the defense of any such
action, proceeding or investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel
of the Issuer's choice at the Issuer's expense to represent the Indemnified
Person in any action, proceeding or investigation for which a claim of
indemnification is made against the Issuer under this Section 6.07 (in which
case the Issuer shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the Indemnified Person except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Issuer'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 Issuer shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the Issuer 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 Issuer 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 Issuer, (iii) the
Issuer 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 Issuer shall
authorize the Indemnified Person to employ separate counsel at the expense of
the Issuer. Notwithstanding the foregoing, the Issuer shall not be obligated
to pay for the fees, costs and expenses of more than one separate counsel for
the Indemnified Persons (in addition to local counsel). The Issuer 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 6.07 (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. Indemnification under this Section 6.07
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. and Nonpetition Covenants.
Notwithstanding any prior termination of this Indenture, but subject to the
NHPUC's right to order the sequestration and payment of revenues arising with
respect to the RRB Property notwithstanding any bankruptcy, reorganization or
other insolvency proceedings with respect to the debtor, pledgor or
transferor of the RRB Property pursuant to RSA 369-B:7, VI and RSA 369-B:7,
VIII, the Trustee shall not, prior to the date which is one year and one day
after the termination of this Indenture with respect to the Issuer, petition
or otherwise invoke or cause the Issuer to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Issuer 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 Issuer or any
substantial part of the property of the Issuer, or ordering the winding up or
liquidation of the affairs of the Issuer. shall survive.
Section 4.02. Conditions to Defeasance. The Issuer may exercise the
Legal Defeasance Option or the Covenant Defeasance Option of Bonds only if:
(a) the Issuer irrevocably deposits or causes to be deposited in
trust with the Trustee cash or U.S. Government Obligations for the payment of
principal of and interest on each such Bond to the Scheduled Maturity Date,
Optional Redemption Date or Mandatory Redemption Date therefor, as
applicable;
(b) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of Independent accountants expressing its opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited cash without
investment will provide cash at such times and in such amounts (but, in the
case of the Legal Defeasance Option only, not more than such amounts) as will
be sufficient to pay in respect of the Bonds (i) subject to clause (ii),
principal in accordance with the Expected Amortization Schedule therefor,
(ii) if to be redeemed, the Optional Redemption Price or Mandatory Redemption
Price, as applicable, therefor on the related Optional Redemption Date or
Mandatory Redemption Date, as applicable and (iii) interest when due;
(c) in the case of the Legal Defeasance Option, 91 days pass after
the deposit is made and during the 91-day period no Default specified in the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Issuer or any substantial part of the Collateral
in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Collateral, or
ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or or 0 occurs which is continuing at the end of the
period;
(d) no Default has occurred and is continuing on the day of such
deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option, the
Issuer shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Bonds will not recognize income, gain or
loss for federal income tax purposes as a result of such legal defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such legal defeasance
had not occurred;
(f) in the case of an exercise of the Covenant Defeasance Option,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Bonds will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred; and
(g) the Issuer delivers to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
satisfaction and discharge of the Bonds to the extent contemplated by this
Article Satisfaction and Discharge; Defeasance have been complied with.
Before or after a deposit pursuant to this Conditions to Defeasance.
The Issuer may exercise the Legal Defeasance Option or the Covenant
Defeasance Option of Bonds only if:, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of such Bonds at a future date
in accordance with Redemption Of Bonds.
Section 4.03. Application of Trust Money. All moneys or U.S.
Government Obligations deposited with the Trustee pursuant to Satisfaction
and Discharge of Indenture; Defeasance. or Conditions to Defeasance. The
Issuer may exercise the Legal Defeasance Option or the Covenant Defeasance
Option of Bonds only if: shall be held in trust and applied by it, in
accordance with the provisions of the Bonds and this Indenture, to the
payment, either directly or through any Paying Agent, as the Trustee may
determine, to the Holders of the particular Bonds for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest, but such
moneys need not be segregated from other funds except to the extent required
herein or in the Servicing Agreement or required by law.
Section 4.04. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture or the Covenant
Defeasance Option or Legal Defeasance Option with respect to the Bonds, all
moneys then held by any Paying Agent other than the Trustee under the
provisions of this Indenture with respect to such Bonds shall, upon demand of
the Issuer, be paid to the Trustee to be held and applied according to Money
for Payments To Be Held in Trust. As provided in Prior to the Issuance Date,
the Issuer shall open, at the Trustee's Corporate Trust Office, or at another
Eligible Institution, one or more segregated trust accounts in the Trustee's
name for the deposit of amounts remitted to the Trustee for deposit therein
on the Issuance Date, RRB Charge Payments and other amounts remitted under
the Servicing Agreement (collectively, the "Collection Account"). The
Trustee shall hold the Collection Account for the benefit of Bondholders, the
Trustee and the other Persons indemnified hereunder or under the Fee and
Indemnity Agreement. The Collection Account will consist of six subaccounts
(which need not be separate bank accounts): a general subaccount (the
"General Subaccount"), a reserve subaccount (the "Reserve Subaccount"), an
overcollateralization subaccount (the "Overcollateralization Subaccount"), a
capital subaccount (the "Capital Subaccount"), an interest reserve subaccount
(the "Interest Reserve Subaccount") and a servicer advance subaccount (the
"Servicer Advance Subaccount"). All amounts in the Collection Account not
allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, the Interest
Reserve Subaccount and the Servicer Advance Subaccount, together with
interest earnings thereon) shall be allocated to the General Subaccount. All
references to the Collection Account shall be deemed to include reference to
all subaccounts contained therein. Withdrawals from and deposits to each of
the foregoing subaccounts of the Collection Account shall be made as set
forth in this Section 8.02. The Collection Account shall at all times be
maintained in an Eligible Deposit Account and only the Trustee shall have
access to the Collection Account for the purpose of making deposits in and
withdrawals from the Collection Account in accordance with this Indenture.
Funds in the Collection Account shall not be commingled with any other
moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by
the Trustee in the Collection Account as part of the Collateral as herein
provided., all payments of amounts due and payable with respect to any Bonds
that are to be made from amounts withdrawn from the Collection Account
pursuant to On any Business Day upon which the Trustee receives a written
request from the Administrator stating that any Operating Expense payable by
the Issuer (but only as described in clauses (i) through (iv) below) will
become due and payable prior to the next succeeding Payment Date, and setting
forth the amount and nature of such Operating Expenses, as well as any
supporting documentation that the Trustee may reasonably request, the
Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from amounts on
deposit in the General Subaccount, the Reserve Subaccount, the
Overcollateralization Subaccount and the Capital Subaccount, in that order
and only to the extent required to make such payment. shall be made on behalf
of the Issuer by the Trustee or by another Paying Agent, and no amounts so
withdrawn from the Collection Account for payments of Bonds shall be paid
over to the Issuer except as provided in this Section and Collection
Account.. and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
Remedies
Section 5.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest on any Bond when the
same becomes due and payable, and such default shall continue for a period of
five days; or
(b) default in the payment of the then unpaid principal of any
Bond on the Final Maturity Date; or
(c) default in the payment of the Optional Redemption Price for
the Bonds on the Optional Redemption Date therefor, or a default in the
payment of the Mandatory Redemption Price for the Bonds on the Mandatory
Redemption Date; or
(d) (i) default in the observance or performance in any material
respect of any covenant or agreement of the Issuer made in this Indenture
(other than a covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section specifically dealt with),
or (ii) any representation or warranty of the Issuer made in this Indenture
or in any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material respect as
of the time when the same shall have been made and, in any case under clause
(i) or clause (ii), such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured, for
a period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee
by the Holders of at least 25 percent of the Outstanding Amount of the Bonds,
a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part
of the Collateral in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Collateral, or ordering the winding-up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order
for relief in an involuntary case under any such law, or the consent by the
Issuer to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Issuer
or for any substantial part of the Collateral, or the making by the Issuer of
any general assignment for the benefit of creditors, or the failure by the
Issuer generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing; or
(g) a breach of the State Pledge by the State of New Hampshire.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default, other than an Event of Default pursuant to a breach of
the State Pledge by the State of New Hampshire., should occur and be
continuing, then and in every such case, the Trustee may and, upon the
written direction of the Holders of Bonds representing not less than a
majority of the Outstanding Amount of the Bonds, shall declare all the Bonds
to be immediately due and payable, by a notice in writing to the Issuer and
upon any such declaration the unpaid principal amount of the Bonds, together
with accrued and unpaid interest thereon through the date of acceleration,
shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Remedies provided, the Holders
of Bonds representing a majority of the Outstanding Amount of the Bonds, by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(1) all payments of principal of and interest on all
Bonds and all other amounts that would then be due
hereunder or upon such Bonds if the Event of Default
giving rise to such acceleration had not occurred; and
(2) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee and its
agents and counsel and all amounts due under the Fee
and Indemnity Agreement; and
(b) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by such acceleration, have
been cured or waived as provided in Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Bonds as provided in
Section 5.02, the Holders of Bonds of not less than a majority of the
Outstanding Amount of the Bonds may waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal of
or interest on any of the Bonds or (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder
of each Bond or of all Classes affected, which Defaults may be waived only by
the Holders of each Bond, or each affected Class, as the case may be. In the
case of any such waiver, the Issuer, the Trustee and the Holders of the Bonds
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto..
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Bond when the same becomes due and payable,
and such default continues for a period of five days, (ii) default is made in
the payment of the then unpaid principal of any Bond on the Final Maturity
Date for such Bond or (iii) default is made in the payment of the Optional
Redemption Price or Mandatory Redemption Price, as applicable, for any Bond
on the Optional Redemption Date or Mandatory Redemption Date, as applicable,
therefor, the Issuer will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Bonds, the whole amount then due and payable on
such Bonds for principal and interest, with interest upon the overdue
principal and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest, at the respective
rate borne by the Bonds of the applicable Class and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee and its agents and counsel and an amount
sufficient to cover all amounts required to be paid by the Issuer under the
Fee and Indemnity Agreement.
(b) Subject to Section 11.16, in case the Issuer shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such Proceeding
to judgment or final decree, and may enforce the same against the Issuer or
other obligor upon such Bonds and collect in the manner provided by law out
of the property of the Issuer or other obligor upon such Bonds, wherever
situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Trustee
may, as more particularly provided in Remedies; Priorities., in its
discretion, proceed to protect and enforce its rights and the rights of the
Bondholders, by such appropriate Proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy
or legal or equitable right vested in the Trustee by this Indenture or by
law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Bonds or any Person having or claiming an ownership
interest in the Collateral, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Bonds, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Bonds shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such Proceedings
or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Bonds and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of (A) the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or willful misconduct), (B) the Bondholders and (C) each Person for whom
a claim may be made under the Fee and Indemnity Agreement, allowed in
such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Bonds in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings; and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Bondholders and of the
Trustee on their behalf;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Bondholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to such Bondholders, to pay to the Trustee
(or such other beneficiary of the Fee and Indemnity Agreement) such amounts
as shall be sufficient to cover reasonable compensation and other amounts
owing hereunder to the Trustee or such Person, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other reasonable
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or willful
misconduct.
(e) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Bondholder in
any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Bonds, may be enforced by the Trustee without
the possession of any of the Bonds or the production thereof in any trial or
other Proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Bonds.
(g) In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Bonds, and it shall not be necessary to make
any Bondholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default, other than an Event of Default
pursuant to a breach of the State Pledge by the State of New Hampshire. (the
remedy for which is set forth in Section 5.04(b)), shall have occurred and be
continuing, the Trustee may do one or more of the following (subject to
Optional Possession of the Collateral. If the Bonds have been declared to be
due and payable under Section 5.02 following an Event of Default and such
declaration and its consequences have not been rescinded and annulled, the
Trustee may, but need not, elect to maintain possession of the Collateral.
It is the desire of the parties hereto and the Bondholders that there be at
all times sufficient funds for the payment of principal of and interest on
the Bonds, and the Trustee shall take such desire into account when
determining whether or not to maintain possession of the Collateral. In
determining whether to maintain possession of the Collateral, the Trustee
may, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Bonds or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Bonds moneys adjudged
due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC,
the Statute or other applicable law and take any other appropriate
action to protect and enforce the rights and remedies of the Trustee and
the Holders of the Bonds; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided, however, that the Trustee may not sell or otherwise liquidate any
portion of the Collateral following an Event of Default, other than an Event
of Default described in default in the payment of any interest on any Bond
when the same becomes due and payable, and such default shall continue for a
period of five days; or, 0 or 0, unless (A) the Holders of 100 percent of the
Outstanding Amount of the Bonds consent thereto, (B) the proceeds of such
sale or liquidation distributable to the Bondholders are sufficient to
discharge in full all amounts then due and unpaid upon such Bonds for
principal and interest after taking into account payment of all amounts due
prior thereto pursuant to the priorities set forth in On any Business Day
upon which the Trustee receives a written request from the Administrator
stating that any Operating Expense payable by the Issuer (but only as
described in clauses (i) through (iv) below) will become due and payable
prior to the next succeeding Payment Date, and setting forth the amount and
nature of such Operating Expenses, as well as any supporting documentation
that the Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before the
date such payment is due from amounts on deposit in the General Subaccount,
the Reserve Subaccount, the Overcollateralization Subaccount and the Capital
Subaccount, in that order and only to the extent required to make such
payment. or (C) the Trustee determines that the Collateral will not continue
to provide sufficient funds for all payments on the Bonds as they would have
become due if the Bonds had not been declared due and payable, and the
Trustee obtains the consent of Holders of 66-2/3 percent of the Outstanding
Amount of the Bonds. In determining such sufficiency or insufficiency with
respect to clause (B) and (C), the Trustee may, but need not, obtain and
conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
(b) If an Event of Default pursuant to a breach of the State
Pledge by the State of New Hampshire. shall have occurred and be continuing,
then the Trustee, in its own name and as trustee of an express trust, shall
be, to the extent permitted by state and federal law, entitled and empowered
to institute any suits, actions or proceedings at law, in equity or
otherwise, to enforce the State Pledge and to collect any monetary damages as
a result of a breach thereof, and may prosecute any such suit, action or
proceeding to judgment or final decree.
(c) If the Trustee collects any money pursuant to this Remedies,
it shall pay out such money in accordance with the priorities set forth in On
any Business Day upon which the Trustee receives a written request from the
Administrator stating that any Operating Expense payable by the Issuer (but
only as described in clauses (i) through (iv) below) will become due and
payable prior to the next succeeding Payment Date, and setting forth the
amount and nature of such Operating Expenses, as well as any supporting
documentation that the Trustee may reasonably request, the Trustee, upon
receipt of such information, will make payment of such Operating Expenses on
or before the date such payment is due from amounts on deposit in the General
Subaccount, the Reserve Subaccount, the Overcollateralization Subaccount and
the Capital Subaccount, in that order and only to the extent required to make
such payment..
Section 5.05. Optional Possession of the Collateral. If the Bonds have
been declared to be due and payable under Acceleration of Maturity;
Rescission and Annulment. If an Event of Default, other than an Event of
Default pursuant to a breach of the State Pledge by the State of New
Hampshire., should occur and be continuing, then and in every such case, the
Trustee may and, upon the written direction of the Holders of Bonds
representing not less than a majority of the Outstanding Amount of the Bonds,
shall declare all the Bonds to be immediately due and payable, by a notice in
writing to the Issuer and upon any such declaration the unpaid principal
amount of the Bonds, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and payable.
following an Event of Default and such declaration and its consequences have
not been rescinded and annulled, the Trustee may, but need not, elect to
maintain possession of the Collateral. It is the desire of the parties
hereto and the Bondholders that there be at all times sufficient funds for
the payment of principal of and interest on the Bonds, and the Trustee shall
take such desire into account when determining whether or not to maintain
possession of the Collateral. In determining whether to maintain possession
of the Collateral, the Trustee may, but need not, obtain and conclusively
rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as
to the sufficiency of the Collateral for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Bond shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, and each Holder agrees, by its acceptance of any
Bond, to the fullest extent permitted by law, not to avail itself of any
remedies in the Statute or to utilize or enforce the Statutory Lien, unless:
(a) such Holder previously has given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of not less than 25 percent of the Outstanding
Amount of the Bonds have made written request to the Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
of the Outstanding Amount of the Bonds;
it being understood and intended that no one or more Holders of Bonds shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Bonds or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Bonds, each
representing less than a majority of the Outstanding Amount of the Bonds, the
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Bondholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Bond shall have the right, which is absolute and unconditional,
(a) to receive payment of (i) the interest, if any, on such Bond on or after
the due dates thereof expressed in such Bond or in this Indenture, (ii) the
unpaid principal, if any, of such Bonds on or after the Final Maturity Date
therefor or (iii) in the case of redemption, receive payment of the unpaid
principal of and interest, if any, on such Bond on or after the Optional
Redemption Date or Mandatory Redemption Date, as applicable, therefor and
(b) to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Trustee or
any Bondholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such
Bondholder , then and in every such case the Issuer, the Trustee and the
Bondholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Bondholders shall
continue as though no such Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Bondholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of
the Trustee or any Bondholder to exercise any right or remedy accruing upon
any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Remedies or by
law to the Trustee or to the Bondholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Bondholders, as the case may be.
Section 5.11. Control by Bondholders. The Holders of a majority of the
Outstanding Amount of the Bonds (or, if less than all Classes are affected,
the affected Class or Classes) shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Trustee with respect to the Bonds of such Class or Classes or exercising any
trust or power conferred on the Trustee with respect to such Class or
Classes; provided, however, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) subject to the express terms of Remedies; Priorities., any
direction to the Trustee to sell or liquidate the Collateral shall be by the
Holders of Bonds representing not less than 100 percent of the Outstanding
Amount of the Bonds;
(c) if the conditions set forth in Optional Possession of the
Collateral. If the Bonds have been declared to be due and payable under
Acceleration of Maturity; Rescission and Annulment. If an Event of Default,
other than an Event of Default pursuant to a breach of the State Pledge by
the State of New Hampshire., should occur and be continuing, then and in
every such case, the Trustee may and, upon the written direction of the
Holders of Bonds representing not less than a majority of the Outstanding
Amount of the Bonds, shall declare all the Bonds to be immediately due and
payable, by a notice in writing to the Issuer and upon any such declaration
the unpaid principal amount of the Bonds, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately
due and payable. following an Event of Default and such declaration and its
consequences have not been rescinded and annulled, the Trustee may, but need
not, elect to maintain possession of the Collateral. It is the desire of the
parties hereto and the Bondholders that there be at all times sufficient
funds for the payment of principal of and interest on the Bonds, and the
Trustee shall take such desire into account when determining whether or not
to maintain possession of the Collateral. In determining whether to maintain
possession of the Collateral, the Trustee may, but need not, obtain and
conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose. have
been satisfied and the Trustee elects to retain the Collateral pursuant to
such Section, then any direction to the Trustee by Holders of Bonds
representing less than 100 percent of the Outstanding Amount of the Bonds to
sell or liquidate the Collateral shall be of no force and effect; and
(d) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction;
provided, however, that, subject to Duties of Trustee., the Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Bondholders not consenting to
such action.
Section 5.12. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Bonds as provided in Acceleration of
Maturity; Rescission and Annulment. If an Event of Default, other than an
Event of Default pursuant to a breach of the State Pledge by the State of New
Hampshire., should occur and be continuing, then and in every such case, the
Trustee may and, upon the written direction of the Holders of Bonds
representing not less than a majority of the Outstanding Amount of the Bonds,
shall declare all the Bonds to be immediately due and payable, by a notice in
writing to the Issuer and upon any such declaration the unpaid principal
amount of the Bonds, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and payable.,
the Holders of Bonds of not less than a majority of the Outstanding Amount of
the Bonds may waive any past Default or Event of Default and its consequences
except a Default (a) in payment of principal of or interest on any of the
Bonds or (b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Bond or of all
Classes affected, which Defaults may be waived only by the Holders of each
Bond, or each affected Class, as the case may be. In the case of any such
waiver, the Issuer, the Trustee and the Holders of the Bonds shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Bond by such Xxxxxx's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Trustee, (b) any suit instituted by any Bondholder, or group of Bondholders,
in each case holding in the aggregate more than 10 percent of the Outstanding
Amount of the Bonds or (c) any suit instituted by any Bondholder for the
enforcement of the payment of (i) interest on any Bond on or after the due
dates expressed in such Bond and in this Indenture, (ii) the unpaid
principal, if any, of any Bond on or after the Final Maturity Date therefor
or (iii) in the case of redemption, the unpaid principal of and interest on
any Bond on or after the Optional Redemption Date or Mandatory Redemption
Date, as applicable, therefor.
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.15. Action on Bonds. The Trustee's right to seek and recover
judgment on the Bonds or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the Lien of this Indenture nor any rights or
remedies of the Trustee or the Bondholders shall be impaired by the recovery
of any judgment by the Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any
of the assets of the Issuer.
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Trustee to do so and at
the Issuer's expense, the Issuer agrees to take all such lawful action as the
Trustee may reasonably request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale Agreement and
the Servicing Agreement, respectively, in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Sale Agreement and
the Servicing Agreement, respectively, to the extent and in the manner
directed by the Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of
legal or administrative actions or proceedings to compel or secure
performance by the Seller or the Servicer of each of their obligations under
the Sale Agreement and the Servicing Agreement, respectively.
(b) If an Event of Default has occurred, the Trustee may, and, at
the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter)) of the Holders of 66-2/3 percent of the
Outstanding Amount of the Bonds , shall, subject to Article The Trustee,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller or the Servicer under or in connection with the Sale
Agreement and the Servicing Agreement, respectively, including the right or
power to take any action to compel or secure performance or observance by the
Seller or the Servicer of each of their obligations to the Issuer thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Sale Agreement or the Servicing Agreement, respectively, and
any right of the Issuer to take such action shall be suspended.
ARTICLE VI
The Trustee
Section 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph Except
during the continuance of an Event of Default: of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Control by Bondholders. The
Holders of a majority of the Outstanding Amount of the Bonds (or, if
less than all Classes are affected, the affected Class or Classes) shall
have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Trustee with respect to the
Bonds of such Class or Classes or exercising any trust or power
conferred on the Trustee with respect to such Class or Classes;
provided, however, that.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs., Except during the continuance of an
Event of Default: and The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that: of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this
Indenture, the Sale Agreement or the Servicing Agreement.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the Trust
Indenture Act.
(i) In the event that the Trustee is also acting as Paying Agent
or Registrar hereunder, this Article The Trustee shall also be afforded to
such Paying Agent or Registrar.
(j) Under no circumstances shall the Trustee be liable for any
indebtedness of the Issuer, the Servicer or the Seller evidenced by or
arising under the Bonds or any Basic Document.
Section 6.02. Rights of Trustee. Subject to the provisions of Trust
Indenture Act 315:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting in reliance upon any resolution, Bond,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties
and the Trustee need not investigate any matter or fact stated in such
document;
(b) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by a Request;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers' Certificate of the Issuer;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Bondholders pursuant to this Indenture, unless such
Bondholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the cost, expenses (including reasonable
legal fees and expenses) and liabilities that might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, Bond, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture
or other paper or document;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of,
any agent, attorney, custodian or nominee appointed with due care by it
hereunder;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Bonds relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or indemnity satisfactory to it
against such risk is not reasonably assured to it;
(j) the Trustee shall not be personally liable for any action
taken or suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; provided, however, that the Trustee's
conduct does not constitute willful misconduct, negligence or bad faith;
(k) in the event that the Trustee is also acting as Paying Agent,
authenticating agent or Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article VI shall also be afforded to
such Paying Agent, authenticating agent or Registrar;
(l) the Trustee shall not be charged with knowledge of an Event of
Default unless a Responsible Officer obtains actual knowledge of such event
or the Trustee receives written notice of such event from the Issuer, the
Servicer or a majority of the Holders of Bonds of the Class or Classes so
affected; and
(m) without limiting its rights under bankruptcy law, when the
Trustee incurs expenses or renders services in connection with the insolvency
or bankruptcy of any party hereto or with the Basic Documents to which it is
a party, such expenses (including the fees and expenses of its counsel) and
the compensation for such services are intended to constitute expenses of
administration under any bankruptcy or insolvency law.
Section 6.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Bonds and
may otherwise deal with the Issuer or its affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee
must comply with Sections Corporate Trustee Required; Eligibility. and
Preferential Collection of Claims Against Issuer. The Trustee shall comply
with Trust Indenture Act 311(a), excluding any creditor relationship listed
in Trust Indenture Act 311(b). A Trustee who has resigned or been removed
shall be subject to Trust Indenture Act 311(a) to the extent provided
therein..
Section 6.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Bonds, it shall not be accountable for the Issuer's use
of the proceeds from the Bonds, and it shall not be responsible for any
statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Bonds or in the Bonds other than the
Trustee's certificate of authentication.
Section 6.05. Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Holder of Bonds and to the Rating
Agencies notice of the Default within 30 days after it has such actual
knowledge.
Section 6.06. Statements to Bondholders.
(a) So long as the Trustee is the Registrar and Paying Agent, it
shall deliver to each Bondholder such information in its possession as may be
required to enable such Holder to prepare its federal and state income tax
returns.
(b) On or prior to each Payment Date therefor, the Trustee will
deliver to each Holder of Bonds on such Payment Date a statement as provided
and prepared by the Servicer which will include (to the extent applicable)
the following information as to the Bonds with respect to such Payment Date
or the period since the previous Payment Date, as applicable:
(i) the amount of the payment to Bondholders allocable to
principal (such amount to be expressed as an aggregate dollar amount and
as a dollar amount per $1,000 of original principal amount);
(ii) the amount of the payment to Bondholders allocable to interest
(such amount to be expressed as an aggregate dollar amount and as a
dollar amount per $1,000 of original principal amount);
(iii) the Outstanding Amount of the Bonds, after giving effect
to payments allocated to principal reported under (i) above;
(iv) the difference, if any, between the Outstanding Amount of the
Bonds and the Projected Principal Balance as of such Payment Date, after
giving effect to payments to be made on such Payment Date;
(v) the balance of amounts on deposit in the Reserve Subaccount
after giving effect to payments or allocations made or to be made on
such Payment Date;
(vi) the balance of amounts on deposit in the Overcollateralization
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(vii) the balance of amounts on deposit in the Capital
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date;
(viii) the balance of amounts on deposit in the Interest Reserve
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date; and
(ix) the balance of amounts on deposit in the Servicer Advance
Subaccount after giving effect to payments or allocations made or to be
made on such Payment Date.
On each date on which the Trustee distributes any such report to the Holders
of the Bonds of any Class, the Trustee shall also distribute such report to
each Rating Agency.
(c) The Issuer shall send a copy of each Certificate of Compliance
delivered to it pursuant to Section 3.03 of the Servicing Agreement and each
Annual Accountant's Report delivered to it pursuant to Section 3.04 of the
Servicing Agreement to the Trustee, the Bondholders and the Rating Agencies.
(d) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was a Holder of any Class of Bonds and received a payment thereon, a
statement containing the sum of the amounts determined pursuant to
clause (b)(i) or (ii) above with respect to such Class of Bonds for such
calendar year, or, in the event such Person was a Holder of such Class of
Bonds during a portion of such calendar year, for the applicable portion of
such year, and such other items as are readily available to the Trustee and
that a Bondholder shall reasonably request as necessary for the purpose of
such Bondholder 's preparation of its federal income tax returns.
Section 6.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred or
made by it, including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify, defend and hold
harmless the Trustee and any of its affiliates, officials, officers,
directors, employees, consultants, counsel and agents (the "Indemnified
Persons") from and against any and all losses, claims, actions, suits, taxes,
damages, expenses (including, without limitation, legal fees and expenses)
and liabilities (including liabilities under state or federal securities
laws) of any kind and nature whatsoever (collectively, "Expenses"), to the
extent that such Expenses arise out of or are imposed upon or asserted
against such Indemnified Persons with respect to the creation,
administration, operation, enforcement or termination of this trust and the
performance by the Trustee of its duties hereunder, the failure of the Issuer
or any other Person (other than the Person being indemnified) to perform its
obligations hereunder or under any of the Basic Documents, or otherwise in
connection with the Basic Documents or the transactions contemplated thereby,
provided, however, that the Issuer is not required to indemnify any
Indemnified Person for any Expenses that result from the willful misconduct
or gross negligence of such Indemnified Person and, provided, further, that
any Expenses payable to any Indemnified Person hereunder shall be paid to the
Trustee for deposit into and distribution from the Collection Account in
accordance with Article Accounts, Disbursements and Releases. The willful
misconduct or negligence of any Trustee shall not affect the rights of any
predecessor or successor Trustee hereunder. The Issuer shall not be required
to indemnify an Indemnified Person for any amount paid or payable by such
Indemnified Person pursuant to this
in the settlement of any action, proceeding or investigation
without the written consent of the Issuer, 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 Issuer under this
notify the Issuer in writing of such involvement. Failure by an
Indemnified Person to so notify the Issuer shall relieve the Issuer from the
obligation to indemnify and hold harmless such Indemnified Person under this
, only to the extent that the
Issuer 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 reference., the Issuer shall be
entitled to assume the defense of any such
action, proceeding or investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel
of the Issuer's choice at the Issuer's expense to represent the Indemnified
Person in any action, proceeding or investigation for which a claim of
indemnification is made against the Issuer under this
(in which case the Issuer shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding the Issuer'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 Issuer shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the Issuer 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 Issuer 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 Issuer, (iii) the Issuer 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 Issuer shall authorize the Indemnified Person to
employ separate counsel at the expense of the Issuer. Notwithstanding the
foregoing, the Issuer shall not be obligated to pay for the fees, costs and
expenses of more than one separate counsel for the Indemnified Persons (in
addition to local counsel). The Issuer 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 (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. Indemnification under this 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.
The Issuer's payment obligations to the Trustee pursuant to this Section
shall survive the discharge of this Indenture or the earlier resignation or
removal of the Trustee. When the Trustee incurs expenses after the
occurrence of a Default specified in the filing of a decree or order for
relief by a court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Collateral in an involuntary case under
any applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Collateral, or ordering the winding-up or liquidation
of the Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or or 0 with respect to the
Issuer, the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law.
Section 6.08. Corporate Trustee Required; Eligibility.
(a) The Trustee shall at all times be eligible to act as a trustee
under Trust Indenture Act 310(a) and Section 26(a)(i) of the Investment
Company Act of 1940, shall have a combined capital and surplus of at
least $50,000,000 and shall have a long-term debt rating of at least A by
Xxxxx'x and Standard & Poor's. If such entity publishes reports of
conditions at least annually, pursuant to law or to the requirements of
federal, State or territorial supervising or examining authority, then for
the purposes of this Section 6.08, the combined capital and surplus of such
entity shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. The Trustee shall comply
with Trust Indenture Act 310(b), including the optional provision permitted
by the second sentence of Trust Indenture Act 310(b)(9); provided, however,
that there shall be excluded from the operation of Trust Indenture Act
310(b)(1) any indenture or indentures under which other securities of the
Issuer are outstanding if the requirements for such exclusion set forth in
Trust Indenture Act 310(b)(1) are met.
(b) In determining whether the Trustee has a conflicting interest
under Trust Indenture Act 310(b) and this Section, each other Class of
Bonds will be treated as having been issued under an indenture other than
this Indenture.
(c) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.08, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.09.
Section 6.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective (i) until
the acceptance of appointment by the successor Trustee under Section 6.10 and
(ii) other than in the case of paragraph (b) below, unless a successor
Trustee has been appointed and has accepted such appointment and the Rating
Agency Condition shall have been satisfied.
(b) The Trustee may resign at any time in the case of a
conflicting interest as determined in accordance with Section 6.08(b) by
giving written notice thereof to the Issuer, the Registrar, the Paying Agent
and any authenticating agent. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Issuer within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time in the case of a
conflicting interest as determined in accordance with Section 6.08(b) by Act
of Bondholders holding Bonds representing not less than a majority of the
Outstanding Amount of the Bonds delivered to the Trustee and to the Issuer.
(d) Upon 30 days' written notice, the Trustee (i) may resign with
respect to the Bonds as a whole by giving such written notice to the Issuer,
the Registrar, the Paying Agent and any authenticating agent or (ii) may be
removed with respect to the Bonds as a whole by Act of Bondholders holding
Bonds representing not less than a majority of the Outstanding Amount of
Bonds delivered to the Issuer. If an instrument of acceptance by a successor
Trustee with respect to the Bonds as a whole shall not have been delivered to
the Issuer within 90 days after the giving of such notice of resignation or
Act by the Bondholders as a whole for removal of the Trustee, the Issuer may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Bonds as a whole.
(e) If at any time:
(i) the Trustee shall fail to comply with Trust Indenture Act
310 after written request therefor by the Issuer or by any Holder of
Bonds who has been a bona fide Holder of Bonds for at least six months;
or
(ii) the Trustee shall cease to be eligible under Section 6.08 and
shall fail to resign after written request therefor by the Issuer or by
any Bondholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Trustee shall fail to perform its obligations hereunder in
any material respect and shall not have cured such failure within 30
days after written notice thereof from the Issuer or any Bondholder;
then, in any case, (x) the Issuer may remove the Trustee or (y) any Holder of
Bonds who has been a bona fide Holder of Bonds for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any
reason, the Issuer shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of the
Bondholders representing not less than a majority of the Outstanding Amount
of the Bonds delivered to the Issuer and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed as provided above. If no successor Trustee shall have been so
appointed as provided above and accepted appointment in the manner
hereinafter provided, any Holder of Bonds who has been a bona fide Holder of
Bonds for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders as their names and addresses appear in the Register and to each
Rating Agency and the Issuer. Each notice shall include the name of such
successor Trustee and the address of the corporate trust office of such
successor Trustee.
(h) The Issuer shall notify the Rating Agencies of any resignation
and removal of the Trustee and appointment of a successor Trustee under this
Section 6.09.
Section 6.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Issuer and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Issuer, the
retiring Trustee and such successor Trustee shall execute and deliver any and
all instruments containing such provisions as shall be necessary or desirable
to transfer and confirm to, and for more fully and certainly vesting in, such
successor Trustee all such rights, powers and trusts. No Trustee hereunder
shall be liable for the acts or omissions of any successor Trustee.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article and any and all amounts due and payable to the predecessor
Trustee have been paid.
Section 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Bonds shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Bonds so authenticated
with the same effect as if such successor Trustee had itself authenticated
such Bonds.
Section 6.12. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Trustee
shall have the power and may execute and deliver all instruments to appoint
one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Collateral, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Bondholders, such title to the Collateral, or any part hereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. The
Trustee shall give prompt written notice to the Bondholders of the
appointment of any co-trustee or separate trustee.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-
trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including
the holding of title to the Collateral or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture
and the conditions of this Article The Trustee. Each separate trustee and co-
trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or co-
trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.13. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with Trust Indenture Act 311(a), excluding any
creditor relationship listed in Trust Indenture Act 311(b). A Trustee who
has resigned or been removed shall be subject to Trust Indenture Act 311(a)
to the extent provided therein.
Section 6.14. Registration of Eligible Investments in Trustee's Name.
The Trustee agrees that all Eligible Investments, if any, shall be issued in
the name of the Trustee or its nominee, on behalf of the Issuer, and held by
the Trustee, or, if not so held, the Trustee or its nominee, on behalf of the
Issuer, shall be reflected as the owner of such Eligible Investments, as the
case may be, in the register of the issuer of such Eligible Investments. In
no event shall the Trustee invest in, or hold, Eligible Investments in a
manner that would cause the Trustee not to have the ownership interest or
first priority security interest in such Eligible Investments under the
applicable provisions of the Uniform Commercial Code in effect in the
location where the Trustee holds such Eligible Investments or other
applicable law then in effect.
Section 6.15. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a banking corporation validly existing in good
standing under the laws of New York; and
(b) the Trustee has full power (including trust powers), authority
and legal right to execute, deliver and perform this Indenture and the Basic
Documents to which the Trustee is a party and has taken all necessary action
to authorize the execution, delivery, and performance by it of this Indenture
and such Basic Documents.
(c) when delivered by the Trustee, the Bonds will have been duly
authenticated by the Trustee.
Section 6.16. Covenants of the Trustee. The Trustee hereby covenants
and agrees as follows:
(a) the Trustee will establish the Collection Account as a
Securities Account;
(b) the financial institution that is the Trustee, acting as
Securities Intermediary, will identify the Collection Account in its records
as a Securities Account of the Trustee and will identify the Trustee in such
records as the Person having the Security Entitlement against the Securities
Intermediary with respect to the Securities Account and all Security
Entitlements carried in the Securities Account;
(c) the financial institution that is the Trustee, acting as
Securities Intermediary, will maintain accurate and complete records of the
Financial Assets in the Securities Account such that the Collateral is
objectively determinable;
(d) the financial institution that is the Trustee, acting as
Securities Intermediary, will in the ordinary course of its business,
maintain securities accounts for its customers, will act in that capacity in
holding the Securities Account under this Indenture and will at all times be
located in and maintain its books and records relating to all of these
securities in the State of New York;
(e) the financial institution that is the Trustee, acting as
Securities Intermediary, will treat all Eligible Investments as Financial
Assets and will duly hold the Eligible Investments in the Securities Account;
and
(f) the financial institution that is the Trustee, acting as
Securities Intermediary, will not agree to comply with entitlement orders of
any Person other than the Trustee with respect to the Securities Account or
any Security Entitlements carried in the Securities Account and agrees to
comply with entitlement orders of the Trustee without the consent of any
other Person.
ARTICLE VII
Bondholders' Lists and Reports
Section 7.01. Issuer To Furnish Trustee Names and Addresses of
Bondholders. The Registrar on behalf of the Issuer will furnish or cause to
be furnished to the Trustee within 15 days after each Record Date, and at
such other times as the Trustee may request in writing, within 30 days after
receipt by the Issuer of any such request, a list, in such form as the
Trustee may reasonably require, of all information in the possession or
control of the Issuer as to the names and addresses of the Bondholders, in
each case as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Trustee is the Registrar,
no such list shall be required to be furnished.
Upon the written request of any Bondholder or Bondholders of record
holding Bonds evidencing not less than ten percent of the aggregate
Outstanding Amount of Bonds, the Trustee shall afford such Bondholder or
Bondholders access during business hours to the current list of Bondholders
for purposes of communicating with other Bondholders with respect to their
rights under this Indenture.
Section 7.02. Preservation of Information; Communications to
Bondholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Bonds
contained in the most recent list furnished to the Trustee as provided in
Issuer To Furnish Trustee Names and Addresses of Bondholders. The Registrar
on behalf of the Issuer will furnish or cause to be furnished to the Trustee
within 15 days after each Record Date, and at such other times as the Trustee
may request in writing, within 30 days after receipt by the Issuer of any
such request, a list, in such form as the Trustee may reasonably require, of
all information in the possession or control of the Issuer as to the names
and addresses of the Bondholders, in each case as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Trustee is the Registrar, no such list shall be required to be
furnished. and the names and addresses of Holders of Bonds received by the
Trustee in its capacity as Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in such Issuer To Furnish Trustee Names
and Addresses of Bondholders. The Registrar on behalf of the Issuer will
furnish or cause to be furnished to the Trustee within 15 days after each
Record Date, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, a list, in
such form as the Trustee may reasonably require, of all information in the
possession or control of the Issuer as to the names and addresses of the
Bondholders, in each case as of a date not more than 10 days prior to the
time such list is furnished; provided, however, that so long as the Trustee
is the Registrar, no such list shall be required to be furnished. upon
receipt of a new list so furnished.
(b) Bondholders may communicate pursuant to Trust Indenture
Act 312(b) with other Bondholders with respect to their rights under this
Indenture or under the Bonds.
(c) The Issuer, the Trustee and the Registrar shall have the
protection of Trust Indenture Act 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) so long as the Issuer is required to file such documents with
the Commission, file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act;
(ii) file with the Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(iii) supply to the Trustee (and the Trustee shall transmit by
mail to all Bondholders described in Trust Indenture Act 313(c)) such
summaries of any information, documents and reports required to be filed
by the Issuer pursuant to clauses 0 and 0 of this The Issuer shall: as
may be required by rules and regulations prescribed from time to time by
the Commission; and
(iv) pursuant to Trust Indenture Act 314(a)(4), the Issuer shall
furnish to the Trustee, not less often than annually and prior to
January 31 of each year, commencing January 31, 2002, a certificate as
to the Issuer's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 7.03(a), such compliance shall
be determined without regard to any period of grace or requirement of
notice provided under this Indenture. In addition, the Trustee shall
forward such certificate to the Bondholders.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Trustee. If required by Trust Indenture Act
313(a), within 60 days after December 31 of each year, commencing December
31, 2001, the Trustee shall mail to each Holder of Bonds as required by Trust
Indenture Act 313(c) a brief report dated as of such date that complies
with Trust Indenture Act 313(a). The Trustee also shall comply with Trust
Indenture Act 313(b).
A copy of each report at the time of its mailing to Bondholders shall be
filed by the Trustee with the Commission and each stock exchange, if any, on
which the Bonds are listed. The Issuer shall notify the Trustee if and when
the Bonds are listed on any stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to
or receivable by the Trustee pursuant to this Indenture, and the Fee and
Indemnity Agreement. The Trustee shall apply all such money received by it
as provided in this Indenture. Except as otherwise expressly provided in
this Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Collateral,
the Trustee may take such action as may be appropriate to enforce such
payment or performance, subject to Article The Trustee, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Remedies.
Section 8.02. Collection Account.
(a) Prior to the Issuance Date, the Issuer shall open, at the
Trustee's Corporate Trust Office, or at another Eligible Institution, one or
more segregated trust accounts in the Trustee's name for the deposit of
amounts remitted to the Trustee for deposit therein on the Issuance Date, RRB
Charge Payments and other amounts remitted under the Servicing Agreement
(collectively, the "Collection Account"). The Trustee shall hold the
Collection Account for the benefit of Bondholders, the Trustee and the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement. The
Collection Account will consist of six subaccounts (which need not be
separate bank accounts): a general subaccount (the "General Subaccount"), a
reserve subaccount (the "Reserve Subaccount"), an overcollateralization
subaccount (the "Overcollateralization Subaccount"), a capital subaccount
(the "Capital Subaccount"), an interest reserve subaccount (the "Interest
Reserve Subaccount") and a servicer advance subaccount (the "Servicer Advance
Subaccount"). All amounts in the Collection Account not allocated to any
other subaccount shall be allocated to the General Subaccount. Prior to the
initial Payment Date, all amounts in the Collection Account (other than funds
deposited into the Capital Subaccount, the Interest Reserve Subaccount and
the Servicer Advance Subaccount, together with interest earnings thereon)
shall be allocated to the General Subaccount. All references to the
Collection Account shall be deemed to include reference to all subaccounts
contained therein. Withdrawals from and deposits to each of the foregoing
subaccounts of the Collection Account shall be made as set forth in this
Collection Account.. The Collection Account shall at all times be maintained
in an Eligible Deposit Account and only the Trustee shall have access to the
Collection Account for the purpose of making deposits in and withdrawals from
the Collection Account in accordance with this Indenture. Funds in the
Collection Account shall not be commingled with any other moneys. Except as
provided in General Provisions Regarding the Collection Account., all moneys
deposited from time to time in the Collection Account, all deposits therein
pursuant to this Indenture, and all investments made in Eligible Investments
with such moneys, including all income or other gain from such investments,
shall be held by the Trustee in the Collection Account as part of the
Collateral as herein provided.
(b) The Trustee shall have sole dominion and exclusive control
over all moneys in the Collection Account and shall apply such amounts
therein as provided in this Collection Account..
(c) All RRB Charge Payments and other remittances under the
Servicing Agreement shall be deposited in the General Subaccount as provided
in Section 4.03 of the Servicing Agreement. All deposits to and withdrawals
from the Collection Account and all allocations to the subaccounts of the
Collection Account shall be made by the Trustee in accordance with the
written instructions provided by the Servicer in the Quarterly Servicer
Certificate or as otherwise provided herein.
(d) On any Business Day upon which the Trustee receives a written
request from the Administrator stating that any Operating Expense payable by
the Issuer (but only as described in clauses all amounts owed by the Issuer
to the Trustee or to any other Person indemnified hereunder or under the Fee
and Indemnity Agreement (including indemnity payments and legal fees and
expenses) shall be paid, as incurred, first to the Trustee (subject to
Section 6.07) and second to such other Person; provided, however, that the
amount paid by the Trustee on behalf of the Issuer pursuant to this clause
(i) to (A) the Trustee shall not in the aggregate (from the Issuance Date)
exceed $10 million and (B) the other Persons indemnified hereunder or under
the Fee and Indemnity Agreement shall not in the aggregate (from the Issuance
Date) exceed $5 million, unless, in each case, each Rating Agency shall have
been given ten days prior notice thereof and Standard & Poor's shall have
notified the Servicer, the Issuer and the Trustee in writing that such action
will not result in a reduction or withdrawal of the then current rating by
such Rating Agency of any Class of Bonds; through so long as no Default or
Event of Default shall have occurred and be continuing or would result from
such payment, all other Operating Expenses shall be paid to the Persons
entitled thereto (other than the Persons referred to in clause (i) above);
provided, however, that the amount of such other Operating Expenses paid by
the Trustee from, but not including, the previous Payment Date to, and
including, the current Payment Date shall not in the aggregate exceed
$100,000;) will become due and payable prior to the next succeeding Payment
Date, and setting forth the amount and nature of such Operating Expenses, as
well as any supporting documentation that the Trustee may reasonably request,
the Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from amounts on
deposit in the General Subaccount, the Reserve Subaccount, the
Overcollateralization Subaccount and the Capital Subaccount, in that order
and only to the extent required to make such payment.
On each Payment Date or, for any amount payable under clauses all
amounts owed by the Issuer to the Trustee or to any other Person indemnified
hereunder or under the Fee and Indemnity Agreement (including indemnity
payments and legal fees and expenses) shall be paid, as incurred, first to
the Trustee (subject to Section 6.07) and second to such other Person;
provided, however, that the amount paid by the Trustee on behalf of the
Issuer pursuant to this clause (i) to (A) the Trustee shall not in the
aggregate (from the Issuance Date) exceed $10 million and (B) the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement shall
not in the aggregate (from the Issuance Date) exceed $5 million, unless, in
each case, each Rating Agency shall have been given ten days prior notice
thereof and Standard & Poor's shall have notified the Servicer, the Issuer
and the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds; through so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause (i) above); provided, however, that the amount
of such other Operating Expenses paid by the Trustee from, but not including,
the previous Payment Date to, and including, the current Payment Date shall
not in the aggregate exceed $100,000;, on any Business Day, the Trustee shall
apply all amounts on deposit in the Collection Account (other than amounts on
deposit in the Servicer Advance Subaccount, which shall be applied only in
accordance with On any Business Day upon which the Trustee receives a written
request from the Servicer stating that (A) the Servicer is obligated under
Section 5.02(d) of the Servicing Agreement to institute any action or
proceeding on behalf of Bondholders to compel performance by the NHPUC or the
State of New Hampshire of any of their obligations or duties under the
Statute, the Finance Order or any Advice Letter, (B) in order to satisfy such
obligations, the Servicer must incur Operating Expenses that are payable from
RRB Charge Collections in accordance with Section 5.02(d) of the Servicing
Agreement, (C) the Servicer is obligated under Section 5.02(d) of the
Servicing Agreement to advance its own funds to pay such Operating Expenses
because payment of such Operating Expenses pursuant to Section 8.02(d) has
been delayed and (D) the Servicer is unable to advance its own funds to pay
such Operating Expenses, and setting forth the amount and nature of such
Operating Expenses, as well as any supporting documentation that the Trustee
may reasonably request, the Trustee, upon receipt of such information, will
make payment on account of such Operating Expenses on or before the date such
payment is due from amounts on deposit in the Servicer Advance Subaccount,
only to the extent required to make such payment. Amounts paid on account of
any Operating Expenses pursuant to this Section 8.02(j) shall not be
replenished to the Servicer Advance Subaccount, and the Operating Expenses on
account of which such amounts were paid shall remain payable as Operating
Expenses advanced by the Servicer in accordance with Section 5.02(d) of the
Servicing Agreement and Section 8.02(d). ), including all net earnings
thereon (other than on amounts in the Capital Subaccount or the Servicer
Advance Subaccount), to pay the following amounts, in accordance with the
Quarterly Servicer Certificate, in the following priority (provided that, in
accordance with If on any Payment Date, or for any amounts payable under
clauses (i) through (iv) above, on any Business Day, funds on deposit in the
General Subaccount are insufficient to make the payments contemplated by
clauses (i) through (vi) of Section 8.02(d), the Trustee shall (i) first,
draw from amounts on deposit in the Reserve Subaccount, (ii) second, draw
from amounts on deposit in the Overcollateralization Subaccount, (iii) third,
draw from amounts on deposit in the Capital Subaccount and (iv) fourth, draw
from amounts on deposit in the Interest Reserve Subaccount, in each case, up
to the amount of such shortfall in order to make the payments contemplated by
clauses (i) through (vi) of Section 8.02(d); provided, however, that the
Trustee shall draw from amounts on deposit in the Interest Reserve Subaccount
pursuant to clause (iv) of this Section 8.02(e) only to make the payments
contemplated by clause (v) of Section 8.02(d). In addition, if on any
Payment Date funds on deposit in the General Subaccount are insufficient to
make the allocations contemplated by clauses (viii), (ix) and (x) of Section
8.02(d), the Trustee shall draw from amounts on deposit in the Reserve
Subaccount to make such allocations., amounts on deposit in the Interest
Reserve Subaccount shall be applied only to make the payments contemplated by
clause 0):
(i) all amounts owed by the Issuer to the Trustee or to any other
Person indemnified hereunder or under the Fee and Indemnity Agreement
(including indemnity payments and legal fees and expenses) shall be
paid, as incurred, first to the Trustee (subject to Compensation and
Indemnity. The Issuer shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee for all
reasonable out-of-pocket expenses, disbursements and advances incurred
or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Issuer shall
indemnify, defend and hold harmless the Trustee and any of its
affiliates, officials, officers, directors, employees, consultants,
counsel and agents (the "Indemnified Persons") from and against any and
all losses, claims, actions, suits, taxes, damages, expenses (including,
without limitation, legal fees and expenses) and liabilities (including
liabilities under state or federal securities laws) of any kind and
nature whatsoever (collectively, "Expenses"), to the extent that such
Expenses arise out of or are imposed upon or asserted against such
Indemnified Persons with respect to the creation, administration,
operation, enforcement or termination of this trust and the performance
by the Trustee of its duties hereunder, the failure of the Issuer or any
other Person (other than the Person being indemnified) to perform its
obligations hereunder or under any of the Basic Documents, or otherwise
in connection with the Basic Documents or the transactions contemplated
thereby, provided, however, that the Issuer is not required to indemnify
any Indemnified Person for any Expenses that result from the willful
misconduct or gross negligence of such Indemnified Person and, provided,
further, that any Expenses payable to any Indemnified Person hereunder
shall be paid to the Trustee for deposit into and distribution from the
Collection Account in accordance with Article Accounts, Disbursements
and Releases. The willful misconduct or negligence of any Trustee shall
not affect the rights of any predecessor or successor Trustee hereunder.
The Issuer shall not be required to indemnify an Indemnified Person for
any amount paid or payable by such Indemnified Person pursuant to this
in the settlement of any
action, proceeding or investigation without the written consent of the
Issuer, 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 Issuer under this ,
notify the Issuer in writing of such involvement. Failure by an
Indemnified Person to so notify the Issuer shall relieve the Issuer from
the obligation to indemnify and hold harmless such Indemnified Person
under this , only to the
extent that the Issuer 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 , the Issuer shall be
entitled to assume the defense of any such action, proceeding or
investigation. Upon assumption by the Issuer 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 Issuer shall be entitled to appoint counsel of the
Issuer's choice at the Issuer's expense to represent the Indemnified
Person in any action, proceeding or investigation for which a claim of
indemnification is made against the Issuer under this
(in which case the Issuer shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the Indemnified Person except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
Indemnified Person. Notwithstanding the Issuer'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 Issuer shall bear
the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the Issuer 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 Issuer 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 Issuer, (iii) the Issuer 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 Issuer shall authorize the
Indemnified Person to employ separate counsel at the expense of the
Issuer. Notwithstanding the foregoing, the Issuer shall not be
obligated to pay for the fees, costs and expenses of more than one
separate counsel for the Indemnified Persons (in addition to local
counsel). The Issuer 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 (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. Indemnification
under this 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.) and second to such other
Person; provided, however, that the amount paid by the Trustee on behalf
of the Issuer pursuant to this clause (i) to (A) the Trustee shall not
in the aggregate (from the Issuance Date) exceed $10 million and (B) the
other Persons indemnified hereunder or under the Fee and Indemnity
Agreement shall not in the aggregate (from the Issuance Date) exceed $5
million, unless, in each case, each Rating Agency shall have been given
ten days prior notice thereof and Standard & Poor's shall have notified
the Servicer, the Issuer and the Trustee in writing that such action
will not result in a reduction or withdrawal of the then current rating
by such Rating Agency of any Class of Bonds;
(ii) the Servicing Fee for such Payment Date and all unpaid
Servicing Fees from prior Payment Dates shall be paid to the Servicer;
(iii) the Administration Fee and all unpaid Administration Fees
from prior Payment Dates shall be paid to the Administrator;
(iv) so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause 0); provided, however, that the amount of
such other Operating Expenses paid by the Trustee from, but not
including, the previous Payment Date to, and including, the current
Payment Date shall not in the aggregate exceed $100,000;
(v) (A) any overdue Quarterly Interest (together with, to the
extent lawful, interest on such overdue Quarterly Interest at the
applicable Bond Interest Rate) and (B) Quarterly Interest for such
Payment Date shall be paid to the Bondholders;
(vi) (A) principal due and payable on the Bonds (x) as a result of
an Event of Default or (y) on the Final Maturity Date of the Bonds,
shall be paid to the Bondholders and (B) Quarterly Principal for such
Payment Date shall be paid to the Bondholders;
(vii) unpaid Operating Expenses shall be paid to the Persons
entitled thereto;
(viii) the amount, if any, by which the Required Interest
Reserve Level, with respect to all Outstanding Bonds, exceeds the amount
in the Interest Reserve Subaccount as of such Payment Date shall be
allocated to the Interest Reserve Subaccount;
(ix) the amount, if any, by which the Required Capital Level, with
respect to all Outstanding Bonds, exceeds the amount in the Capital
Subaccount (disregarding any interest earnings held in the Capital
Subaccount which have not been remitted to the Issuer) as of such
Payment Date shall be allocated to the Capital Subaccount;
(x) the amount, if any, by which the Required
Overcollateralization Level, with respect to all Outstanding Bonds,
exceeds the amount in the Overcollateralization Subaccount as of such
Payment Date shall be allocated to the Overcollateralization Subaccount;
and
(xi) the balance, if any, shall be allocated to the Reserve
Subaccount for distribution on subsequent Payment Dates.
After principal of and interest on all Bonds, and all of the other
foregoing amounts, have been paid in full, the balance, if any, shall be paid
to the Issuer, free from the Lien of this Indenture.
In the case of any deficiency in the amount required under clause 0,
amounts available to make payments under clause 0 will be allocated among
each Class of Bonds pro rata based upon the respective amounts of interest
owed on the Bonds of each Class, and allocated and paid to holders within
each Class pro rata based upon the respective principal amount of Bonds held.
In the case of any deficiency in the amount required under clause 0, amounts
available to make payments under clause 0 will be allocated among each Class
of Bonds pro rata based upon the respective principal amount of Bonds due (in
the case of clause 0(A)(x) above) or scheduled to be paid (in the case of
clauses 0(A)(y) and 0(B) above, based on the priorities set forth in Expected
Amortization Schedule for Principal. Unless an Event of Default shall have
occurred and be continuing and the unpaid principal amount of all Bonds and
accrued interest thereon has been declared to be due and payable, on each
Payment Date, the Trustee shall pay to the Bondholders of record as of the
related Record Date amounts payable pursuant to On any Business Day upon
which the Trustee receives a written request from the Administrator stating
that any Operating Expense payable by the Issuer (but only as described in
clauses (i) through (iv) below) will become due and payable prior to the next
succeeding Payment Date, and setting forth the amount and nature of such
Operating Expenses, as well as any supporting documentation that the Trustee
may reasonably request, the Trustee, upon receipt of such information, will
make payment of such Operating Expenses on or before the date such payment is
due from amounts on deposit in the General Subaccount, the Reserve
Subaccount, the Overcollateralization Subaccount and the Capital Subaccount,
in that order and only to the extent required to make such payment. as
principal, in the following order and priority: (1) to the holders of the
Class A-1 Bonds, until the Outstanding Amount of such Class of Bonds thereof
has been reduced to zero; (2) to the holders of the Class A-2 Bonds, until
the Outstanding Amount of such Class of Bonds thereof has been reduced to
zero; and (3) to the holders of the Class A-3 Bonds, until the Outstanding
Amount of such Class of Bonds thereof has been reduced to zero; provided,
however, that in no event shall a principal payment pursuant to this
on any Class on a Payment Date be greater than the amount that reduces the
Outstanding Amount of such Class of Bonds to the amount specified in the
Expected Amortization Schedule for such Payment Date. Partial payments of
any scheduled amortization payment shall be allocated within any Class of
Bonds pro rata. and according to the expected amortization schedule for such
Class), and allocated and paid to the holders within each Class pro rata
based upon the principal amount of Bonds held.
The final payment with respect to any Bond, however, will be made only
upon presentation and surrender of such Xxxx at the office or agency of the
Trustee specified in the notice given by the Trustee with respect to such
final payment.
(e) If on any Payment Date, or for any amounts payable under
clauses 0 through 0, on any Business Day, funds on deposit in the General
Subaccount are insufficient to make the payments contemplated by clauses 0
through 0 of On any Business Day upon which the Trustee receives a written
request from the Administrator stating that any Operating Expense payable by
the Issuer (but only as described in clauses all amounts owed by the Issuer
to the Trustee or to any other Person indemnified hereunder or under the Fee
and Indemnity Agreement (including indemnity payments and legal fees and
expenses) shall be paid, as incurred, first to the Trustee (subject to
Section 6.07) and second to such other Person; provided, however, that the
amount paid by the Trustee on behalf of the Issuer pursuant to this clause
(i) to (A) the Trustee shall not in the aggregate (from the Issuance Date)
exceed $10 million and (B) the other Persons indemnified hereunder or under
the Fee and Indemnity Agreement shall not in the aggregate (from the Issuance
Date) exceed $5 million, unless, in each case, each Rating Agency shall have
been given ten days prior notice thereof and Standard & Poor's shall have
notified the Servicer, the Issuer and the Trustee in writing that such action
will not result in a reduction or withdrawal of the then current rating by
such Rating Agency of any Class of Bonds; through so long as no Default or
Event of Default shall have occurred and be continuing or would result from
such payment, all other Operating Expenses shall be paid to the Persons
entitled thereto (other than the Persons referred to in clause (i) above);
provided, however, that the amount of such other Operating Expenses paid by
the Trustee from, but not including, the previous Payment Date to, and
including, the current Payment Date shall not in the aggregate exceed
$100,000;) will become due and payable prior to the next succeeding Payment
Date, and setting forth the amount and nature of such Operating Expenses, as
well as any supporting documentation that the Trustee may reasonably request,
the Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from amounts on
deposit in the General Subaccount, the Reserve Subaccount, the
Overcollateralization Subaccount and the Capital Subaccount, in that order
and only to the extent required to make such payment., the Trustee shall (i)
first, draw from amounts on deposit in the Reserve Subaccount, (ii) second,
draw from amounts on deposit in the Overcollateralization Subaccount,
(iii) third, draw from amounts on deposit in the Capital Subaccount and (iv)
fourth, draw from amounts on deposit in the Interest Reserve Subaccount, in
each case, up to the amount of such shortfall in order to make the payments
contemplated by clauses 0 through 0 of On any Business Day upon which the
Trustee receives a written request from the Administrator stating that any
Operating Expense payable by the Issuer (but only as described in clauses all
amounts owed by the Issuer to the Trustee or to any other Person indemnified
hereunder or under the Fee and Indemnity Agreement (including indemnity
payments and legal fees and expenses) shall be paid, as incurred, first to
the Trustee (subject to Section 6.07) and second to such other Person;
provided, however, that the amount paid by the Trustee on behalf of the
Issuer pursuant to this clause (i) to (A) the Trustee shall not in the
aggregate (from the Issuance Date) exceed $10 million and (B) the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement shall
not in the aggregate (from the Issuance Date) exceed $5 million, unless, in
each case, each Rating Agency shall have been given ten days prior notice
thereof and Standard & Poor's shall have notified the Servicer, the Issuer
and the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds; through so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause (i) above); provided, however, that the amount
of such other Operating Expenses paid by the Trustee from, but not including,
the previous Payment Date to, and including, the current Payment Date shall
not in the aggregate exceed $100,000;) will become due and payable prior to
the next succeeding Payment Date, and setting forth the amount and nature of
such Operating Expenses, as well as any supporting documentation that the
Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before the
date such payment is due from amounts on deposit in the General Subaccount,
the Reserve Subaccount, the Overcollateralization Subaccount and the Capital
Subaccount, in that order and only to the extent required to make such
payment.; provided, however, that the Trustee shall draw from amounts on
deposit in the Interest Reserve Subaccount pursuant to clause (iv) of this
only to make the payments
contemplated by clause 0 of On any Business Day upon which the Trustee
receives a written request from the Administrator stating that any Operating
Expense payable by the Issuer (but only as described in clauses all amounts
owed by the Issuer to the Trustee or to any other Person indemnified
hereunder or under the Fee and Indemnity Agreement (including indemnity
payments and legal fees and expenses) shall be paid, as incurred, first to
the Trustee (subject to Section 6.07) and second to such other Person;
provided, however, that the amount paid by the Trustee on behalf of the
Issuer pursuant to this clause (i) to (A) the Trustee shall not in the
aggregate (from the Issuance Date) exceed $10 million and (B) the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement shall
not in the aggregate (from the Issuance Date) exceed $5 million, unless, in
each case, each Rating Agency shall have been given ten days prior notice
thereof and Standard & Poor's shall have notified the Servicer, the Issuer
and the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds; through so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause (i) above); provided, however, that the amount
of such other Operating Expenses paid by the Trustee from, but not including,
the previous Payment Date to, and including, the current Payment Date shall
not in the aggregate exceed $100,000;) will become due and payable prior to
the next succeeding Payment Date, and setting forth the amount and nature of
such Operating Expenses, as well as any supporting documentation that the
Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before the
date such payment is due from amounts on deposit in the General Subaccount,
the Reserve Subaccount, the Overcollateralization Subaccount and the Capital
Subaccount, in that order and only to the extent required to make such
payment.. In addition, if on any Payment Date funds on deposit in the
General Subaccount are insufficient to make the allocations contemplated by
clauses 0, 0 and 0 of On any Business Day upon which the Trustee receives a
written request from the Administrator stating that any Operating Expense
payable by the Issuer (but only as described in clauses all amounts owed by
the Issuer to the Trustee or to any other Person indemnified hereunder or
under the Fee and Indemnity Agreement (including indemnity payments and legal
fees and expenses) shall be paid, as incurred, first to the Trustee (subject
to Section 6.07) and second to such other Person; provided, however, that the
amount paid by the Trustee on behalf of the Issuer pursuant to this clause
(i) to (A) the Trustee shall not in the aggregate (from the Issuance Date)
exceed $10 million and (B) the other Persons indemnified hereunder or under
the Fee and Indemnity Agreement shall not in the aggregate (from the Issuance
Date) exceed $5 million, unless, in each case, each Rating Agency shall have
been given ten days prior notice thereof and Standard & Poor's shall have
notified the Servicer, the Issuer and the Trustee in writing that such action
will not result in a reduction or withdrawal of the then current rating by
such Rating Agency of any Class of Bonds; through so long as no Default or
Event of Default shall have occurred and be continuing or would result from
such payment, all other Operating Expenses shall be paid to the Persons
entitled thereto (other than the Persons referred to in clause (i) above);
provided, however, that the amount of such other Operating Expenses paid by
the Trustee from, but not including, the previous Payment Date to, and
including, the current Payment Date shall not in the aggregate exceed
$100,000;) will become due and payable prior to the next succeeding Payment
Date, and setting forth the amount and nature of such Operating Expenses, as
well as any supporting documentation that the Trustee may reasonably request,
the Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from amounts on
deposit in the General Subaccount, the Reserve Subaccount, the
Overcollateralization Subaccount and the Capital Subaccount, in that order
and only to the extent required to make such payment., the Trustee shall draw
from amounts on deposit in the Reserve Subaccount to make such allocations.
(f) Payments to Holders of Bonds shall be by check sent by first-
class mail to the address of such Holder appearing on the Register at the
relevant Record Date or, upon written application of a Holder of Bonds of any
Class in the original principal amount of $1,000,000 or more to the Trustee
made at any time not later than such Record Date or continuing in effect from
a prior request, by wire transfer in immediately available funds to the
account of such Holder at such bank located in New York, New York having wire
transfer capability as may be designated by such Holder; provided, however,
that the final payment in respect of any Bond shall be made only as provided
in On any Business Day upon which the Trustee receives a written request from
the Administrator stating that any Operating Expense payable by the Issuer
(but only as described in clauses all amounts owed by the Issuer to the
Trustee or to any other Person indemnified hereunder or under the Fee and
Indemnity Agreement (including indemnity payments and legal fees and
expenses) shall be paid, as incurred, first to the Trustee (subject to
Section 6.07) and second to such other Person; provided, however, that the
amount paid by the Trustee on behalf of the Issuer pursuant to this clause
(i) to (A) the Trustee shall not in the aggregate (from the Issuance Date)
exceed $10 million and (B) the other Persons indemnified hereunder or under
the Fee and Indemnity Agreement shall not in the aggregate (from the Issuance
Date) exceed $5 million, unless, in each case, each Rating Agency shall have
been given ten days prior notice thereof and Standard & Poor's shall have
notified the Servicer, the Issuer and the Trustee in writing that such action
will not result in a reduction or withdrawal of the then current rating by
such Rating Agency of any Class of Bonds; through so long as no Default or
Event of Default shall have occurred and be continuing or would result from
such payment, all other Operating Expenses shall be paid to the Persons
entitled thereto (other than the Persons referred to in clause (i) above);
provided, however, that the amount of such other Operating Expenses paid by
the Trustee from, but not including, the previous Payment Date to, and
including, the current Payment Date shall not in the aggregate exceed
$100,000;) will become due and payable prior to the next succeeding Payment
Date, and setting forth the amount and nature of such Operating Expenses, as
well as any supporting documentation that the Trustee may reasonably request,
the Trustee, upon receipt of such information, will make payment of such
Operating Expenses on or before the date such payment is due from amounts on
deposit in the General Subaccount, the Reserve Subaccount, the
Overcollateralization Subaccount and the Capital Subaccount, in that order
and only to the extent required to make such payment.. The foregoing
notwithstanding, any payments made to Cede & Co., as the nominee of the
initial Clearing Agency, shall be made by wire transfer of immediately
available funds.
(g) On any Optional Redemption Date or Mandatory Redemption Date,
the Trustee shall pay to the Bondholders the Optional Redemption Price or
Mandatory Redemption Price, as the case may be, which the Trustee has
received.
(h) On the last day of each month, if the amount in the Capital
Subaccount exceeds the Required Capital Level, the Trustee shall pay to the
Issuer, upon receipt of an Issuer Request, free from the Lien of this
Indenture, all amounts in the Capital Subaccount in excess of the Required
Capital Level.
(i) On any Payment Date, if, after giving effect to payments or
allocations made or to be made on such Payment Date, the amount in the
Interest Reserve Subaccount exceeds the Required Interest Reserve Level, the
amount of such excess shall be allocated to the Reserve Subaccount for
distribution on subsequent Payment Dates.
(j) On any Business Day upon which the Trustee receives a written
request from the Servicer stating that (A) the Servicer is obligated under
Section 5.02(d) of the Servicing Agreement to institute any action or
proceeding on behalf of Bondholders to compel performance by the NHPUC or the
State of New Hampshire of any of their obligations or duties under the
Statute, the Finance Order or any Advice Letter, (B) in order to satisfy such
obligations, the Servicer must incur Operating Expenses that are payable from
RRB Charge Collections in accordance with Section 5.02(d) of the Servicing
Agreement, (C) the Servicer is obligated under Section 5.02(d) of the
Servicing Agreement to advance its own funds to pay such Operating Expenses
because payment of such Operating Expenses pursuant to Section 8.02(d) has
been delayed and (D) the Servicer is unable to advance its own funds to pay
such Operating Expenses, and setting forth the amount and nature of such
Operating Expenses, as well as any supporting documentation that the Trustee
may reasonably request, the Trustee, upon receipt of such information, will
make payment on account of such Operating Expenses on or before the date such
payment is due from amounts on deposit in the Servicer Advance Subaccount,
only to the extent required to make such payment. Amounts paid on account of
any Operating Expenses pursuant to this Error! Not a valid bookmark self-
reference. shall not be replenished to the Servicer Advance Subaccount, and
the Operating Expenses on account of which such amounts were paid shall
remain payable as Operating Expenses advanced by the Servicer in accordance
with Section 5.02(d) of the Servicing Agreement and On any Business Day upon
which the Trustee receives a written request from the Administrator stating
that any Operating Expense payable by the Issuer (but only as described in
clauses all amounts owed by the Issuer to the Trustee or to any other Person
indemnified hereunder or under the Fee and Indemnity Agreement (including
indemnity payments and legal fees and expenses) shall be paid, as incurred,
first to the Trustee (subject to Section 6.07) and second to such other
Person; provided, however, that the amount paid by the Trustee on behalf of
the Issuer pursuant to this clause (i) to (A) the Trustee shall not in the
aggregate (from the Issuance Date) exceed $10 million and (B) the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement shall
not in the aggregate (from the Issuance Date) exceed $5 million, unless, in
each case, each Rating Agency shall have been given ten days prior notice
thereof and Standard & Poor's shall have notified the Servicer, the Issuer
and the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds; through so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause (i) above); provided, however, that the amount
of such other Operating Expenses paid by the Trustee from, but not including,
the previous Payment Date to, and including, the current Payment Date shall
not in the aggregate exceed $100,000;) will become due and payable prior to
the next succeeding Payment Date, and setting forth the amount and nature of
such Operating Expenses, as well as any supporting documentation that the
Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before the
date such payment is due from amounts on deposit in the General Subaccount,
the Reserve Subaccount, the Overcollateralization Subaccount and the Capital
Subaccount, in that order and only to the extent required to make such
payment.. On the last day of each month, the Trustee shall pay to the
Issuer, upon receipt of an Issuer Request, free from the Lien of this
Indenture, all amounts on deposit in the Servicer Advance Subaccount that
represent net investment earnings on the Servicer Advance Subaccount.
Amounts on deposit in the Servicer Advance Subaccount shall be applied only
in accordance with this On any Business Day upon which the Trustee receives a
written request from the Servicer stating that (A) the Servicer is obligated
under Section 5.02(d) of the Servicing Agreement to institute any action or
proceeding on behalf of Bondholders to compel performance by the NHPUC or the
State of New Hampshire of any of their obligations or duties under the
Statute, the Finance Order or any Advice Letter, (B) in order to satisfy such
obligations, the Servicer must incur Operating Expenses that are payable from
RRB Charge Collections in accordance with Section 5.02(d) of the Servicing
Agreement, (C) the Servicer is obligated under Section 5.02(d) of the
Servicing Agreement to advance its own funds to pay such Operating Expenses
because payment of such Operating Expenses pursuant to Section 8.02(d) has
been delayed and (D) the Servicer is unable to advance its own funds to pay
such Operating Expenses, and setting forth the amount and nature of such
Operating Expenses, as well as any supporting documentation that the Trustee
may reasonably request, the Trustee, upon receipt of such information, will
make payment on account of such Operating Expenses on or before the date such
payment is due from amounts on deposit in the Servicer Advance Subaccount,
only to the extent required to make such payment. Amounts paid on account of
any Operating Expenses pursuant to this
shall not be replenished to the Servicer Advance Subaccount, and
the Operating Expenses on account of which such amounts were paid shall
remain payable as Operating Expenses advanced by the Servicer in accordance
with Section 5.02(d) of the Servicing Agreement and On any Business Day upon
which the Trustee receives a written request from the Administrator stating
that any Operating Expense payable by the Issuer (but only as described in
clauses all amounts owed by the Issuer to the Trustee or to any other Person
indemnified hereunder or under the Fee and Indemnity Agreement (including
indemnity payments and legal fees and expenses) shall be paid, as incurred,
first to the Trustee (subject to Section 6.07) and second to such other
Person; provided, however, that the amount paid by the Trustee on behalf of
the Issuer pursuant to this clause (i) to (A) the Trustee shall not in the
aggregate (from the Issuance Date) exceed $10 million and (B) the other
Persons indemnified hereunder or under the Fee and Indemnity Agreement shall
not in the aggregate (from the Issuance Date) exceed $5 million, unless, in
each case, each Rating Agency shall have been given ten days prior notice
thereof and Standard & Poor's shall have notified the Servicer, the Issuer
and the Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any Class of
Bonds; through so long as no Default or Event of Default shall have occurred
and be continuing or would result from such payment, all other Operating
Expenses shall be paid to the Persons entitled thereto (other than the
Persons referred to in clause (i) above); provided, however, that the amount
of such other Operating Expenses paid by the Trustee from, but not including,
the previous Payment Date to, and including, the current Payment Date shall
not in the aggregate exceed $100,000;) will become due and payable prior to
the next succeeding Payment Date, and setting forth the amount and nature of
such Operating Expenses, as well as any supporting documentation that the
Trustee may reasonably request, the Trustee, upon receipt of such
information, will make payment of such Operating Expenses on or before the
date such payment is due from amounts on deposit in the General Subaccount,
the Reserve Subaccount, the Overcollateralization Subaccount and the Capital
Subaccount, in that order and only to the extent required to make such
payment and, upon termination of this Indenture, shall be released from
the Lien of this Indenture in accordance with The Trustee shall, at such time
as there are no Bonds Outstanding, release any remaining portion of the
Collateral that secured the Bonds from the Lien of this Indenture and release
to the Issuer or any other Person entitled thereto any funds then on deposit
in the Collection Account. The Trustee shall release property from the Lien
of this Indenture pursuant to this Section 8.05(b) only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the Trust Indenture Act) Independent Certificates in
accordance with Trust Indenture Act 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.01..
Section 8.03. General Provisions Regarding the Collection Account.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Collection Account
shall be invested in Eligible Investments and reinvested by the Trustee upon
Issuer Order; provided, however, that (i) such Eligible Investments shall not
mature later than the Business Day prior to the next Payment Date and
(ii) such Eligible Investments shall not be sold, liquidated or otherwise
disposed of at a loss prior to the maturity thereof. All income or other
gain from investments of moneys deposited in the Collection Account shall be
deposited by the Trustee in the Collection Account, and any loss resulting
from such investments shall be charged to the Collection Account; provided,
however, that all income or other gain from investments of moneys deposited
in the Capital Subaccount or the Servicer Advance Subaccount shall be
retained in the Capital Subaccount or the Servicer Advance Subaccount, as the
case may be, and any loss resulting from such investments shall be charged to
the Capital Subaccount or the Servicer Advance Subaccount, as the case may
be. The Issuer will not direct the Trustee to make any investment of any
funds or to sell any investment held in the Collection Account unless the
security interest Granted and perfected in such account will continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any
direction to the Trustee to make any such investment or sale, if requested by
the Trustee, the Issuer shall deliver to the Trustee an Opinion of Counsel,
reasonably acceptable to the Trustee, to such effect. In no event shall the
Trustee be liable for the selection of Eligible Investments or for investment
losses incurred thereon. The Trustee shall have no liability in respect of
losses incurred as a result of the liquidation of any Eligible Investment
prior to its stated maturity or the failure of the Issuer to provide timely
written investment direction. The Trustee shall have no obligation to invest
or reinvest any amounts held hereunder in the absence of written investment
direction pursuant to an Issuer Order. If the rating of the Eligible
Institution, which may be the Trustee's Corporate Trust Office, falls below
the rating requirements set forth in clause (b)(i) of the definition of
Eligible Institution, the Trustee shall notify the Issuer and the Bond Issue
shall, within one month after notice of such rating change, cause the
Collection Account to be transferred to an institution meeting the
requirements set forth in clause (b)(i) of the definition of "Eligible
Institution."
(b) Subject to The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:, the Trustee shall not in any way be held liable by
reason of any insufficiency in the Collection Account resulting from any loss
on any Eligible Investment included therein except for losses attributable to
the Trustee's failure to make payments on such Xxxxxxxx Investments issued by
the Trustee, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give written investment
directions for any funds on deposit in the Collection Account to the Trustee
by 11:00 a.m. Eastern Time (or such other time as may be agreed by the Issuer
and Trustee) on any Business Day; or (ii) a Default or Event of Default shall
have occurred and be continuing with respect to the Bonds but the Bonds shall
not have been declared due and payable pursuant to Acceleration of Maturity;
Rescission and Annulment. If an Event of Default, other than an Event of
Default pursuant to a breach of the State Pledge by the State of New
Hampshire., should occur and be continuing, then and in every such case, the
Trustee may and, upon the written direction of the Holders of Bonds
representing not less than a majority of the Outstanding Amount of the Bonds,
shall declare all the Bonds to be immediately due and payable, by a notice in
writing to the Issuer and upon any such declaration the unpaid principal
amount of the Bonds, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and payable.;
then the Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Collection Account in one or more investments described
under paragraph (d) of the definition of Eligible Investments.
Section 8.04. Reduction in Principal. Any reduction in the principal
amount of any Bond effected by any payment in respect of principal thereof
shall be binding upon all Holders of such Bond and of any Bond issued upon
the registration or transfer thereof or in lieu thereof, whether or not noted
thereon.
Section 8.05. Release of Collateral.
(a) The Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the Lien of
this Indenture, or convey the Trustee's interest in the same, in a manner and
under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Trustee as
provided in this Article Accounts, Disbursements and Releases shall be bound
to ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
(b) The Trustee shall, at such time as there are no Bonds
Outstanding, release any remaining portion of the Collateral that secured the
Bonds from the Lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Collection Account.
The Trustee shall release property from the Lien of this Indenture pursuant
to this only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the Trust Indenture Act) Independent Certificates in
accordance with Trust Indenture Act 314(c) and 314(d)(1) meeting the
applicable requirements of Compliance Certificates and Opinions, etc..
Notwithstanding anything to the contrary contained in this Indenture, upon
termination of this Indenture, amounts on deposit in the Servicer Advance
Subaccount shall be released from the Lien of this Indenture in accordance
with this The Trustee shall, at such time as there are no Bonds Outstanding,
release any remaining portion of the Collateral that secured the Bonds from
the Lien of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Collection Account. The
Trustee shall release property from the Lien of this Indenture pursuant to
this only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the Trust Indenture Act) Independent Certificates in
accordance with Trust Indenture Act 314(c) and 314(d)(1) meeting the
applicable requirements of Compliance Certificates and Opinions, etc...
Section 8.06. Opinion of Counsel. The Trustee shall receive at least
seven days' notice when requested by the Issuer to take any action pursuant
to The Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the Lien of this
Indenture, or convey the Trustee's interest in the same, in a manner and
under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Trustee as
provided in this Article Accounts, Disbursements and Releases shall be bound
to ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys., accompanied by
copies of any instruments involved, and the Trustee shall also require, as a
condition to such action, an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with and such action will not materially and adversely impair the security
for the Bonds or the rights of the Bondholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the
Collateral. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Trustee in connection with any such action.
Section 8.07. Reports by Independent Accountants. As of the Issuance
Date, the Issuer shall appoint a firm of Independent certified public
accountants of recognized national reputation for purposes of preparing and
delivering the reports or certificates of such accountants required by this
Indenture. In the event such firm requires the Trustee to agree to the
procedures performed by such firm, the Issuer shall direct the Trustee in
writing to so agree; it being understood and agreed that the Trustee will
deliver such letter of agreement in conclusive reliance upon the direction of
the Issuer, and the Trustee makes no independent inquiry or investigation to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures. Upon any resignation by such
firm the Issuer shall provide written notice thereof to the Trustee and shall
promptly appoint a successor thereto that shall also be a firm of Independent
certified public accountants of recognized national reputation. If the
Issuer shall fail to appoint a successor to a firm of Independent certified
public accountants that has resigned within 30 days after such resignation,
the Trustee shall promptly notify the Issuer of such failure in writing. If
the Issuer shall not have appointed a successor within 10 days thereafter the
Trustee shall promptly appoint a successor firm of Independent certified
public accountants of recognized national reputation; provided, however, that
the Trustee shall have no liability with respect to such appointment if the
Trustee acted with due care with respect thereto. The fees of such
Independent certified public accountants and its successor shall be payable
by the Issuer.
ARTICLE IX
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Bondholders.
Without the consent of the Bondholders but with prior notice to the Rating
Agencies, the Issuer and the Trustee, when authorized by an Issuer Order, at
any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to add to the covenants of the Issuer for the benefit of the
Bondholders, or to surrender any right or power herein conferred upon the
Issuer;
(b) to correct or supplement any provision herein or in any
supplemental indenture that may be defective or inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture;
provided, however, that any such action shall not adversely affect in any
material respect the interests of the Bondholders;
(c) to cure any ambiguity or correct any mistake;
(d) to qualify, if necessary, this Indenture (including any
supplemental indenture) under the Trust Indenture Act, or under any similar
federal statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act,
excluding, however, the provisions referred to in Trust Indenture Act
316(a)(2) as in effect at the date as of which this instrument was executed
or any corresponding provision in any similar federal statute hereafter
enacted;
(e) to provide for any interest rate swap transactions with
respect to any floating rate series or class of bonds or any series or class
with specified credit enhancement; but:
(i) such action shall not, as evidenced by an opinion of counsel,
adversely affect in any material respect the interests of any Bondholder
or other swap counterparty; and
(ii) the Rating Agency Condition shall have been satisfied; or
(f) to authorize the appointment of any listing agent, transfer agent
or Paying Agent or Registrar for any class of bonds required or advisable in
connection with the listing of any class of bonds on the Luxembourg Stock
Exchange or any other stock exchange, and otherwise to amend the indenture to
incorporate any changes requested or required by any governmental authority,
stock exchange authority, listing agent, transfer agent or Paying Agent or
Registrar for any class of bonds in connection with that listing.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to
the Rating Agencies a notice setting forth in general terms the substance of
such supplemental indenture. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture. If any such supplemental
indenture requires satisfaction of the Rating Agency Condition, the notice
requirements contained in this Supplemental Indentures Without Consent of
Bondholders. Without the consent of the Bondholders but with prior notice to
the Rating Agencies, the Issuer and the Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in
form reasonably satisfactory to the Trustee, for any of the following
purposes: are in addition to the notice requirements that may otherwise
apply.
Section 9.02. Supplemental Indentures with Consent of Bondholders. The
Issuer and the Trustee, when authorized by an Issuer Order, also may, with
prior notice to the Rating Agencies, and with the consent of the Holders of
not less than a majority of the Outstanding Amount of the Bonds of each Class
to be affected, by Act of such Holders delivered to the Issuer and the
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Bonds under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Bond of each Class affected thereby:
(a) change the date of payment of any installment of principal of
or interest on any Bond, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Collateral to payment of principal of or interest on the Bonds, or change any
place of payment where, or the coin or currency in which, any Bond or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Remedies, to the payment of any such
amount due on the Bonds on or after the respective due dates thereof (or, in
the case of optional or mandatory redemption, on or after the Optional
Redemption Date or Mandatory Redemption Date, as applicable);
(b) reduce the percentage of the Outstanding Amount of the Bonds
or of a Class thereof, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided for
in this Indenture;
(c) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount of the Bonds
required to direct the Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Remedies; Priorities.;
(e) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions
of this Indenture or the Basic Documents cannot be modified or waived without
the consent of the Holder of each Outstanding Bond affected thereby;
(f) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of interest or
principal due on any Bond on any Payment Date (including the calculation of
any of the individual components of such calculation) or to affect the rights
of the Holders of Bonds to the benefit of any provisions for the mandatory
redemption of the Bonds contained herein; or
(g) permit the creation of any lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Collateral or, except as otherwise permitted or contemplated herein,
terminate the Lien of this Indenture on any property at any time subject
hereto or deprive the Holder of any Bond of the security provided by the Lien
of this Indenture.
The Trustee may in its discretion determine whether or not any Bonds of
a Class would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Bonds of such
Class, whether theretofore or thereafter authenticated and delivered
hereunder. The Trustee shall not be liable for any such determination made
in good faith.
It shall not be necessary for any Act of Bondholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
The Trustee shall give each Rating Agency five Business Days prior
written notice of any such proposed supplemental indenture. Promptly after
the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to this Section, the Trustee shall mail to the Rating Agencies and
the Holders of the Bonds to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture. If any such supplemental
indenture requires satisfaction of the Rating Agency Condition, the notice
requirements contained in this Supplemental Indentures with Consent of
Bondholders. The Issuer and the Trustee, when authorized by an Issuer Order,
also may, with prior notice to the Rating Agencies, and with the consent of
the Holders of not less than a majority of the Outstanding Amount of the
Bonds of each Class to be affected, by Act of such Holders delivered to the
Issuer and the Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture or of modifying in
any manner the rights of the Holders of the Bonds under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Bond of each Class affected
thereby: are in addition to the notice requirements that may otherwise apply.
Section 9.03. Execution of Supplemental Indentures. In executing any
supplemental indenture permitted by this Article Supplemental Indentures or
the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and subject to Sections Duties of
Trustee. and Rights of Trustee. Subject to the provisions of Trust Indenture
Act 315:, shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith
with respect to each Class of Bonds affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
the Bonds shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and
all purposes. If required by the Trustee, Bonds may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Issuer or the Trustee shall so determine, new Bonds so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Bonds.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article Supplemental Indentures shall conform to the requirements of the
Trust Indenture Act as then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
ARTICLE X
Redemption of Bonds
Section 10.01. Optional Redemption by Issuer. The Issuer may, at its
option, redeem all, but not less than all, of the Bonds on any Payment Date
if, after giving effect to payments that would otherwise be made on such
Payment Date, the Outstanding Amount has been reduced to less than five
percent of the initial principal balance thereof at a price equal to the
outstanding principal amount of the Bonds to be redeemed plus accrued and
unpaid interest thereon at the Bond Interest Rate to the Optional Redemption
Date (such price being called the "Optional Redemption Price"). If the
Issuer shall elect to redeem the Bonds pursuant to this
it shall furnish written notice (which notice shall
state all items listed in Form of Optional Redemption Notice. Notice of
redemption under Section 10.01 shall be given by the Trustee by first-class
mail, postage prepaid, mailed not less than five days nor more than 25 days
prior to the Optional Redemption Date to each Holder of Bonds to be redeemed,
as of the close of business on the Record Date preceding the Optional
Redemption Date at such Holder's address appearing in the Register.) of such
election to the Trustee and the Rating Agencies not later than 25 days prior
to the Optional Redemption Date and shall deposit with the Trustee not later
than one Business Day prior to the Optional Redemption Date the Optional
Redemption Price of the Bonds to be redeemed whereupon all such Bonds shall
be due and payable on the Optional Redemption Date upon the furnishing of a
notice complying with Form of Optional Redemption Notice. Notice of
redemption under Section 10.01 shall be given by the Trustee by first-class
mail, postage prepaid, mailed not less than five days nor more than 25 days
prior to the Optional Redemption Date to each Holder of Bonds to be redeemed,
as of the close of business on the Record Date preceding the Optional
Redemption Date at such Holder's address appearing in the Register.
Section 10.02. Form of Optional Redemption Notice. Notice of redemption
under Optional Redemption by Issuer. The Issuer may, at its option, redeem
all, but not less than all, of the Bonds on any Payment Date if, after giving
effect to payments that would otherwise be made on such Payment Date, the
Outstanding Amount has been reduced to less than five percent of the initial
principal balance thereof at a price equal to the outstanding principal
amount of the Bonds to be redeemed plus accrued and unpaid interest thereon
at the Bond Interest Rate to the Optional Redemption Date (such price being
called the "Optional Redemption Price"). If the Issuer shall elect to redeem
the Bonds pursuant to this , it
shall furnish written notice (which notice shall state all items listed in
Form of Optional Redemption Notice. Notice of redemption under Section 10.01
shall be given by the Trustee by first-class mail, postage prepaid, mailed
not less than five days nor more than 25 days prior to the Optional
Redemption Date to each Holder of Bonds to be redeemed, as of the close of
business on the Record Date preceding the Optional Redemption Date at such
Holder's address appearing in the Register.) of such election to the Trustee
and the Rating Agencies not later than 25 days prior to the Optional
Redemption Date and shall deposit with the Trustee not later than one
Business Day prior to the Optional Redemption Date the Optional Redemption
Price of the Bonds to be redeemed whereupon all such Bonds shall be due and
payable on the Optional Redemption Date upon the furnishing of a notice
complying with Form of Optional Redemption Notice. Notice of redemption
under Section 10.01 shall be given by the Trustee by first-class mail,
postage prepaid, mailed not less than five days nor more than 25 days prior
to the Optional Redemption Date to each Holder of Bonds to be redeemed, as of
the close of business on the Record Date preceding the Optional Redemption
Date at such Holder's address appearing in the Register. to each Holder of
the Bonds pursuant to this . shall
be given by the Trustee by first-class mail, postage prepaid, mailed not less
than five days nor more than 25 days prior to the Optional Redemption Date to
each Holder of Bonds to be redeemed, as of the close of business on the
Record Date preceding the Optional Redemption Date at such Holder's address
appearing in the Register.
All notices of redemption shall state:
(i) the Optional Redemption Date;
(ii) the Optional Redemption Price; and
(iii) the place where such Bonds are to be surrendered for
payment of the Optional Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Maintenance of
Office or Agency. The Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where Bonds may be surrendered
for registration of transfer or exchange. The Issuer hereby initially
appoints the Trustee to serve as its agent for the foregoing purposes.
The Issuer will give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or
agency. If at any time the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Trustee with the address
thereof, such surrenders may be made at the Corporate Trust Office, and
the Issuer hereby appoints the Trustee as its agent to receive all such
surrenders.).
Notice of redemption of the Bonds to be redeemed shall be given by the
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect therein, to any Holder of any Bonds elected for
redemption shall not impair or affect the validity of the redemption of any
other Bond.
Section 10.03. Bonds Payable on Optional Redemption Date or Payment
Date. Notice of redemption having been given as provided in Form of Optional
Redemption Notice. Notice of redemption under Optional Redemption by Issuer.
The Issuer may, at its option, redeem all, but not less than all, of the
Bonds on any Payment Date if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount has been
reduced to less than five percent of the initial principal balance thereof at
a price equal to the outstanding principal amount of the Bonds to be redeemed
plus accrued and unpaid interest thereon at the Bond Interest Rate to the
Optional Redemption Date (such price being called the "Optional Redemption
Price"). If the Issuer shall elect to redeem the Bonds pursuant to this
, it shall furnish written notice
(which notice shall state all items listed in Form of Optional Redemption
Notice. Notice of redemption under Section 10.01 shall be given by the
Trustee by first-class mail, postage prepaid, mailed not less than five days
nor more than 25 days prior to the Optional Redemption Date to each Holder of
Bonds to be redeemed, as of the close of business on the Record Date
preceding the Optional Redemption Date at such Holder's address appearing in
the Register.) of such election to the Trustee and the Rating Agencies not
later than 25 days prior to the Optional Redemption Date and shall deposit
with the Trustee not later than one Business Day prior to the Optional
Redemption Date the Optional Redemption Price of the Bonds to be redeemed
whereupon all such Bonds shall be due and payable on the Optional Redemption
Date upon the furnishing of a notice complying with Form of Optional
Redemption Notice. Notice of redemption under Section 10.01 shall be given
by the Trustee by first-class mail, postage prepaid, mailed not less than
five days nor more than 25 days prior to the Optional Redemption Date to each
Holder of Bonds to be redeemed, as of the close of business on the Record
Date preceding the Optional Redemption Date at such Holder's address
appearing in the Register. to each Holder of the Bonds pursuant to this
. shall be given by the Trustee by
first-class mail, postage prepaid, mailed not less than five days nor more
than 25 days prior to the Optional Redemption Date to each Holder of Bonds to
be redeemed, as of the close of business on the Record Date preceding the
Optional Redemption Date at such Holder's address appearing in the Register.,
the Bonds to be redeemed shall on the Optional Redemption Date become due and
payable at the Optional Redemption Price and (unless the Issuer shall default
in the payment of the Optional Redemption Price) no interest shall accrue on
the Optional Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Optional Redemption
Price.
Section 10.04. Mandatory Redemption by Issuer. If the Seller is
required to repurchase the RRB Property pursuant to Section 5.01(b) of the
Sale Agreement, or elects to repurchase the RRB Property pursuant to Section
5.01(e) of the Sale Agreement, the Issuer shall be required to redeem all
outstanding Bonds on or before the fifth Business Day following the
Repurchase Date (such date of mandatory redemption, the "Mandatory Redemption
Date") for a purchase price equal to the then outstanding principal amount of
the Bonds plus accrued and unpaid interest thereon at the Bond Interest Rate
to the Mandatory Redemption Date (such price being called the "Mandatory
Redemption Price"). If the Issuer is required to redeem the Bonds pursuant
to this , it shall furnish written
notice (which notice shall state all items listed in Form of Mandatory
Redemption Notice. Notice of redemption under Section 10.04 shall be given
by the Trustee by first-class mail, postage prepaid, mailed not less than
five days prior to the Mandatory Redemption Date to each Holder of Bonds to
be redeemed, as of the close of business on the Record Date preceding the
Mandatory Redemption Date at such Holder's address appearing in the
Register.) of such redemption to the Trustee and the Rating Agencies not
later than one Business Day before such Repurchase Date and shall deposit
with the Trustee, not later than 12:00 noon Eastern Time on the Repurchase
Date, the Mandatory Redemption Price of the Bonds to be redeemed whereupon
all such Bonds shall be due and payable on the Mandatory Redemption Date upon
the furnishing of a notice complying with Form of Mandatory Redemption
Notice. Notice of redemption under Section 10.04 shall be given by the
Trustee by first-class mail, postage prepaid, mailed not less than five days
prior to the Mandatory Redemption Date to each Holder of Bonds to be
redeemed, as of the close of business on the Record Date preceding the
Mandatory Redemption Date at such Xxxxxx's address appearing in the Register.
Section 10.05. Form of Mandatory Redemption Notice. Notice of
redemption under Mandatory Redemption by Issuer. If the Seller is required
to repurchase the RRB Property pursuant to Section 5.01(b) of the Sale
Agreement, or elects to repurchase the RRB Property pursuant to Section
5.01(e) of the Sale Agreement, the Issuer shall be required to redeem all
outstanding Bonds on or before the fifth Business Day following the
Repurchase Date (such date of mandatory redemption, the "Mandatory Redemption
Date") for a purchase price equal to the then outstanding principal amount of
the Bonds plus accrued and unpaid interest thereon at the Bond Interest Rate
to the Mandatory Redemption Date (such price being called the "Mandatory
Redemption Price"). If the Issuer is required to redeem the Bonds pursuant
to this , it shall furnish written
notice (which notice shall state all items listed in Form of Mandatory
Redemption Notice. Notice of redemption under Section 10.04 shall be given
by the Trustee by first-class mail, postage prepaid, mailed not less than
five days prior to the Mandatory Redemption Date to each Holder of Bonds to
be redeemed, as of the close of business on the Record Date preceding the
Mandatory Redemption Date at such Holder's address appearing in the
Register.) of such redemption to the Trustee and the Rating Agencies not
later than one Business Day before such Repurchase Date and shall deposit
with the Trustee, not later than 12:00 noon Eastern Time on the Repurchase
Date, the Mandatory Redemption Price of the Bonds to be redeemed whereupon
all such Bonds shall be due and payable on the Mandatory Redemption Date upon
the furnishing of a notice complying with Form of Mandatory Redemption
Notice. Notice of redemption under Section 10.04 shall be given by the
Trustee by first-class mail, postage prepaid, mailed not less than five days
prior to the Mandatory Redemption Date to each Holder of Bonds to be
redeemed, as of the close of business on the Record Date preceding the
Mandatory Redemption Date at such Xxxxxx's address appearing in the Register.
to each Holder of the Bonds pursuant to this shall be given by the Trustee
by first-class mail, postage prepaid, mailed not less than five days prior
to the Mandatory Redemption Date to each Holder of Bonds to be redeemed,
as of the close of business on the Record Date preceding the Mandatory
Redemption Date at such Xxxxxx's address appearing in the Register.
All notices of redemption shall state:
(i) the Mandatory Redemption Date;
(ii) the Mandatory Redemption Price; and
(iii) the place where such Bonds are to be surrendered for
payment of the Mandatory Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Maintenance of
Office or Agency. The Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where Bonds may be surrendered
for registration of transfer or exchange. The Issuer hereby initially
appoints the Trustee to serve as its agent for the foregoing purposes.
The Issuer will give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or
agency. If at any time the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Trustee with the address
thereof, such surrenders may be made at the Corporate Trust Office, and
the Issuer hereby appoints the Trustee as its agent to receive all such
surrenders.).
Notice of redemption of the Bonds to be redeemed shall be given by the
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect therein, to any Holder of any Bonds elected for
redemption shall not impair or affect the validity of the redemption of any
other Bond.
Section 10.06. Bonds Payable on Mandatory Redemption Date or Payment
Date. Notice of redemption having been given as provided in Form of
Mandatory Redemption Notice. Notice of redemption under Mandatory Redemption
by Issuer. If the Seller is required to repurchase the RRB Property pursuant
to Section 5.01(b) of the Sale Agreement, or elects to repurchase the RRB
Property pursuant to Section 5.01(e) of the Sale Agreement, the Issuer shall
be required to redeem all outstanding Bonds on or before the fifth Business
Day following the Repurchase Date (such date of mandatory redemption, the
"Mandatory Redemption Date") for a purchase price equal to the then
outstanding principal amount of the Bonds plus accrued and unpaid interest
thereon at the Bond Interest Rate to the Mandatory Redemption Date (such
price being called the "Mandatory Redemption Price"). If the Issuer is
required to redeem the Bonds pursuant to this it shall furnish written notice
(which notice shall state
all items listed in Form of Mandatory Redemption Notice. Notice of
redemption under Section 10.04 shall be given by the Trustee by first-class
mail, postage prepaid, mailed not less than five days prior to the Mandatory
Redemption Date to each Holder of Bonds to be redeemed, as of the close of
business on the Record Date preceding the Mandatory Redemption Date at such
Holder's address appearing in the Register.) of such redemption to the
Trustee and the Rating Agencies not later than one Business Day before such
Repurchase Date and shall deposit with the Trustee, not later than 12:00 noon
Eastern Time on the Repurchase Date, the Mandatory Redemption Price of the
Bonds to be redeemed whereupon all such Bonds shall be due and payable on the
Mandatory Redemption Date upon the furnishing of a notice complying with Form
of Mandatory Redemption Notice. Notice of redemption under Section 10.04
shall be given by the Trustee by first-class mail, postage prepaid, mailed
not less than five days prior to the Mandatory Redemption Date to each Holder
of Bonds to be redeemed, as of the close of business on the Record Date
preceding the Mandatory Redemption Date at such Xxxxxx's address appearing in
the Register. to each Holder of the Bonds pursuant to this shall be given
by the Trustee by first-class mail, postage prepaid, mailed not less than
five days prior to the Mandatory Redemption Date to each Holder of Bonds to
be redeemed, as of the close of business on the Record Date preceding the
Mandatory Redemption Date at such Holder's address appearing in the Register.,
the Bonds to be redeemed shall on the Mandatory Redemption Date become due
and payable at the Mandatory Redemption Price and (unless the Issuer shall
default in the payment of the Mandatory Redemption Price) no interest shall
accrue on the Mandatory Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Mandatory
Redemption Price.
ARTICLE XI
Miscellaneous
Section 11.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with and (iii) (if required by the Trust Indenture Act) an
Independent Certificate from a firm of certified public accountants meeting
the applicable requirements of this Section, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property
or securities with the Trustee that is to be made the basis for the release
of any property or securities subject to the Lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Upon any application
or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee (i) an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied
with, (ii) an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with and (iii) (if
required by the Trust Indenture Act) an Independent Certificate from a firm
of certified public accountants meeting the applicable requirements of this
Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished. or elsewhere in this Indenture, furnish to the Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the Collateral or other property or securities to
be so deposited.
(ii) Whenever the Issuer is required to furnish to the Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause 0, the Issuer shall also
deliver to the Trustee an Independent Certificate as to the same
matters, if the fair value to the Issuer of the securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal
year of the Issuer, as set forth in the certificates delivered pursuant
to clause 0 and this clause 0, is ten percent or more of the Outstanding
Amount of the Bonds, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Bonds.
(iii) Whenever any property or securities are to be released
from the Lien of this Indenture other than pursuant to Collection
Account., the Issuer shall also furnish to the Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release)
of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause 0, the Issuer shall also
furnish to the Trustee an Independent Certificate as to the same matters
if the fair value of the property or securities and of all other
property, or securities released from the Lien of this Indenture (other
than pursuant to Collection Account.) since the commencement of the then-
current calendar year, as set forth in the certificates required by
clause 0 and this clause 0, equals 10 percent or more of the Outstanding
Amount of the Bonds, but such certificate need not be furnished in the
case of any release of property or securities if the fair value thereof
as set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the then Outstanding Amount of the Bonds.
(v) Notwithstanding Release of Collateral. Subject to Compliance
Certificates and Opinions, etc., the Trustee shall release property from
the Lien of this Indenture only as specified in Collection Account. or
upon receipt of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with Trust Indenture Act 314(c) and 314(d)(l) or an
Opinion of Counsel in lieu of such Independent Certificates to the
effect that the Trust Indenture Act does not require any such
Independent Certificates. or any other provision of this Section, the
Issuer may (A) collect, liquidate, sell or otherwise dispose of the RRB
Property and the RRB Charge as and to the extent permitted or required
by the Basic Documents (B) cause the Trustee to make cash payments out
of the Collection Account as and to the extent permitted or required by
the Basic Documents and (C) exercise its Legal Defeasance Option or its
Covenant Defeasance Option, as applicable pursuant to Article IV.
Section 11.02. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his or her certificate or opinion is based are erroneous. Any such
certificate of an Authorized Officer or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Servicer, the Seller,
the Issuer or the Administrator, stating that the information with respect to
such factual matters is in the possession of the Servicer, the Seller, the
Issuer or the Administrator, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Whenever in this Indenture, in connection with any application
or certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or
as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Trustee's right to rely upon
the truth and accuracy of any statement or opinion contained in any such
document as provided in Article The Trustee.
(d) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 11.03. Acts of Bondholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Bondholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Bondholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Bondholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Duties
of Trustee.) conclusive in favor of the Trustee and the Issuer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
(c) The ownership of Bonds shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Bonds shall bind the
Holder of every Bond issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Bond.
(e) The Issuer may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Holders of any
Class of Bonds entitled to give any consent, request, demand, authorization,
direction, notice, waiver or other Act. Notwithstanding Trust Indenture Act
316(c), such record date shall be the record date specified in such
Officer's Certificate, which shall be the date not more than 30 days prior to
the first solicitation of Bondholders in connection therewith. If such a
record date is fixed, such consent, request, demand, authorization,
direction, notice, waiver or other Act may be given before or after such
record date, but only the Holders of Bonds of the applicable Class at the
close of business on such record date shall be deemed to be Bondholders of
such Class for the purposes of determining whether Holders of the requisite
aggregate Outstanding Amount of Bonds of such Class have authorized or agreed
or consented to such consent, request, demand, authorization, direction,
notice, waiver or other Act, and for that purpose the aggregate Outstanding
Amount of Bonds of such Class shall be computed as of such record date;
provided, however, that no such consent, request, demand, authorization,
direction, notice, waiver or other Act by the Holders of Bonds of such Class
on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than one
year after the record date.
(f) Except as otherwise provided in the definition of Outstanding,
Bonds of any Class owned by or pledged to any Person shall have an equal and
proportional benefit under the provisions of this Indenture, without
preference, priority or distinction as among all of the Bonds of that Class.
Section 11.04. Notices.
(a) Unless otherwise specifically provided herein, all requests,
notices, directions, consents and waivers required under the terms and
provisions of this Indenture shall be in English and in writing, and any such
notice, direction, consent or waiver may be given by United first class
States mail, reputable overnight courier service, facsimile transmission or
electronic mail (confirmed by telephone, United States first class mail or
reputable overnight courier service in the case of notice by facsimile
transmission or electronic mail) or any other customary means of
communication, and any such requests, 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,
if to the Issuer, to:
PSNH Funding LLC
c/o Public Service Company of New Hampshire
0000 Xxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx (email)
with a copy to:
Public Service Company of New Hampshire
c/o Northeast Utilities Service Company
if by U.S. Mail:
P.O. Box 270
Hartford, CT 06141-0270
if by courier:
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer - Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
E-Mail: xxxxxxx@xx.xxx
if to the Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Unit
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Rating Agencies, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Surveillance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxx@xxxxxxxxxxxx.xxx
Section 11.05. Notices to Bondholders; Waiver. Where this Indenture
provides for notice to Bondholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Bondholder affected by such
event, at such Bondholder 's address as it appears on the Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Bondholders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so mailed to any particular Bondholder shall affect the sufficiency of such
notice with respect to other Bondholders, and any notice that is mailed in
the manner herein provided shall conclusively be presumed to have been duly
given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Bondholders shall be filed with the Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to
mail notice of any event of Bondholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event
of Default.
Section 11.06. State Pledge; Bonds Not Obligation of the State of New
Hampshire, or Seller.
(a) The Issuer hereby finds and determines, and hereby represents
and warrants, that it constitutes a "financing entity" under RSA 369-B:2, and
that the Bonds constitute "rate reduction bonds" under RSA 369-B:2 and that
the Holders of the Bonds are entitled to the rights and benefits thereunder.
Pursuant to RSA 369-B:6, II, the State of New Hampshire pledges, contracts
and agrees with the Issuer and the Holders of the Bonds (the "State Pledge")
as follows:
The state does hereby pledge, contract, and agree with the owners
of RRB property and holders of and trustees for rate reduction
bonds that neither the state, nor any of its agencies, including
the commission, shall limit, alter, amend, reduce, or impair the
RRB charge, RRB property, finance orders, and all rights thereunder
or ownership thereof or security interest therein until the rate
reduction bonds, including all principal, interest, premium, costs
and arrearages thereon, are fully met and discharged, provided
nothing contained in this paragraph shall preclude the limitation,
alteration, amendment, reduction, or impairment if and when
adequate provision shall be made by law for the protection of such
owners, holders and trustees. The state does hereby acknowledge
that such owners, holders and trustees may and will rely on this
pledge, contract, and agreement and that any such limitation,
alteration, amendment, reduction, or impairment without such
adequate provision will irreparably harm such owners, holders and
trustees. The state treasurer and the financing entity are each
authorized to include this pledge, contract, agreement, and
acknowledgment of the state in the documentation relating to the
rate reduction bonds.
(b) The Bonds do not represent an interest in or obligation of the
State of New Hampshire, or any other governmental agency or instrumentality,
or the Seller or any of its affiliates, except that the Bonds are obligations
of PSNH Funding LLC, which is an affiliate of PSNH. None of the Bonds or the
underlying RRB Property will be guaranteed or insured by the State of New
Hampshire, or any other governmental agency or instrumentality, or by the
Seller or its affiliates.
Neither the full faith and credit nor the taxing power of the State of
New Hampshire or any political subdivision thereof or any other governmental
agency or instrumentality is pledged to the payment of the principal of, or
interest on, the Bonds, or to the payments in respect of or in repurchase of
the RRB Property, nor is the State of New Hampshire or any political
subdivision thereof or any other governmental agency or instrumentality in
any manner obligated to make any appropriation for the payment thereof.
Section 11.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of Trust Indenture Act 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
Section 11.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 11.09. Successors and Assigns. All covenants and agreements in
this Indenture and the Bonds by the Issuer shall bind its successors and
assigns, whether so expressed or not.
All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.10. Severability. In case any provision in this Indenture or
in the Bonds shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 11.11. Benefits of Indenture. Nothing in this Indenture or in
the Bonds, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Bondholders, and any
other party secured hereunder, and any other Person with an ownership
interest in any part of the Collateral, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 11.12. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Bonds or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 11.13. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW HAMPSHIRE, 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 11.14. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.15. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee or any other counsel reasonably
acceptable to the Trustee) to the effect that such recording is necessary
either for the protection of the Bondholders or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the
Trustee under this Indenture.
Section 11.16. No Recourse to Certain Persons. No recourse may be
taken, directly or indirectly, with respect to the obligations of the Issuer
or the Trustee on the Bonds or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Trustee in its individual capacity, (ii) any owner of a membership interest
in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Trustee in its individual capacity, any holder of
a membership interest in the Issuer or the Trustee or of any successor or
assign of the Trustee in its individual capacity, except as any such Person
may have expressly agreed (it being understood that the Trustee has no such
obligations in its individual capacity).
Section 11.17. No Recourse to Issuer. Notwithstanding any provision of
this Indenture or any supplemental Indenture to the contrary, Bondholders
shall have no recourse against the Issuer, but shall look only to the
Collateral, with respect to any amounts due to the Bondholders hereunder.
Section 11.18. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Trustee, during the Issuer's
normal business hours, to examine all the books of account, records, reports,
and other papers of the Issuer, to make copies and extracts therefrom, to
cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Trustee's
officers, employees, and Independent certified public accountants, all at
such reasonable times and as often as may be reasonably requested. The
Trustee shall and shall cause its representatives to hold in confidence all
such information except to the extent disclosure may be required by law (and
all reasonable applications for confidential treatment are unavailing) and
except to the extent that the Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder. Notwithstanding
anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes
publicly known, or information obtained by the Trustee from sources other
than the Issuer, provided such parties are rightfully in possession of such
information and do not have an obligation of confidentiality, (ii) disclosure
of any and all information (A) if required to do so by any applicable
statute, law, rule or regulation, (B) pursuant to any subpoena, civil
investigative demand or similar demand or request of any court or regulatory
authority exercising its proper jurisdiction, (C) in any preliminary or final
offering circular, registration statement or contract or other document
pertaining to the transactions contemplated by this Indenture or the Basic
Documents approved in advance by the Issuer or (D) to any affiliate,
independent or internal auditor, agent, employee or attorney of the Trustee
having a need to know the same, provided that such parties agree to be bound
by the confidentiality provisions contained in this Section 11.18, or
(iii) any other disclosure authorized by the Issuer.
Section 11.19. Nonpetition Covenants. Notwithstanding any prior
termination of this Indenture, but subject to the NHPUC's right to order the
sequestration and payment of revenues arising with respect to the RRB
Property notwithstanding any bankruptcy, reorganization or other insolvency
proceedings with respect to the debtor, pledgor or transferor of the RRB
Property pursuant to RSA 369-B:7, VI and RSA 369-B:7, VIII, the Trustee shall
not, prior to the date which is one year and one day after the termination of
this Indenture with respect to the Issuer, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or governmental authority
for the purpose of commencing or sustaining a case against the Issuer 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 Issuer or any substantial part of the property of the
Issuer, or ordering the winding up or liquidation of the affairs of the
Issuer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
PSNH FUNDING LLC
By: /S/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee
By: /S/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Vice President
SCHEDULE 1
Expected Amortization Schedule
Outstanding
Principal
Amount
Class Class Class
Payment Date A-1 A-2 A-3
Closing $75,211,483 $214,649,395 $235,139,122
11/1/01 57,592,606 214,649,395 235,139,122
2/1/02 43,797,063 214,649,395 235,139,122
5/1/02 28,368,117 214,649,395 235,139,122
8/1/02 20,697,824 214,649,395 235,139,122
11/1/02 14,392,034 214,649,395 235,139,122
2/1/03 7,780,415 214,649,395 235,139,122
5/1/03 (0) 214,649,395 235,139,122
8/1/03 0 206,917,868 235,139,122
11/1/03 0 197,869,570 235,139,122
2/1/04 0 189,598,432 235,139,122
5/1/04 0 180,590,351 235,139,122
8/1/04 0 172,246,415 235,139,122
11/1/04 0 162,796,874 235,139,122
2/1/05 0 154,148,908 235,139,122
5/1/05 0 144,473,833 235,139,122
8/1/05 0 135,568,653 235,139,122
11/1/05 0 125,605,470 235,139,122
2/1/06 0 116,266,274 235,139,122
5/1/06 0 106,175,553 235,139,122
8/1/06 0 96,723,253 235,139,122
11/1/06 0 86,167,370 235,139,122
2/1/07 0 76,211,779 235,139,122
5/1/07 0 65,563,711 235,139,122
8/1/07 0 55,515,784 235,139,122
11/1/07 0 44,346,853 235,139,122
2/1/08 0 33,748,007 235,139,122
5/1/08 0 22,498,547 235,139,122
8/1/08 0 11,818,671 235,139,122
11/1/08 0 0 235,139,122
2/1/09 0 0 223,861,093
5/1/09 0 0 211,970,981
8/1/09 0 0 200,623,964
11/1/09 0 0 188,113,319
2/1/10 0 0 176,150,999
5/1/10 0 0 163,545,614
8/1/10 0 0 151,478,734
11/1/10 0 0 138,246,734
2/1/11 0 0 125,549,313
5/1/11 0 0 112,194,918
8/1/11 0 0 99,366,197
11/1/11 0 0 85,367,758
2/1/12 0 0 71,905,110
5/1/12 0 0 57,742,177
8/1/12 0 0 44,103,087
11/1/12 0 0 29,294,415
2/1/13 0 0 14,974,162
5/1/13 0 0 0
SCHEDULE 2
Required Payment Required
Payment Overcollateralization Date Overcollateralization
Closing 0 8/1/07 $1,367,188
11/1/01 $109,375 11/1/07 1,421,875
2/1/02 164,063 2/1/08 1,476,563
5/1/02 218,750 5/1/08 1,531,250
8/1/02 273,438 8/1/08 1,585,938
11/1/02 328,125 11/1/08 1,640,625
2/1/03 382,813 2/1/09 1,695,313
5/1/03 437,500 5/1/09 1,750,000
8/1/03 492,188 8/1/09 1,804,688
11/1/03 546,875 11/1/09 1,859,375
2/1/04 601,563 2/1/10 1,914,063
5/1/04 656,250 5/1/10 1,968,750
8/1/04 710,938 8/1/10 2,023,438
11/1/04 765,625 11/1/10 2,078,125
2/1/05 820,313 2/1/11 2,132,813
5/1/05 875,000 5/1/11 2,187,500
8/1/05 929,688 8/1/11 2,242,188
11/1/05 984,375 11/1/11 2,296,875
2/1/06 1,039,063 2/1/12 2,351,563
5/1/06 1,093,750 5/1/12 2,406,250
8/1/06 1,148,438 8/1/12 2,460,938
11/1/06 1,203,125 11/1/12 2,515,625
2/1/07 1,257,813 2/1/13 2,570,313
5/1/07 1,312,500 5/1/13 2,625,000
EXHIBIT A
FORM OF BOND
REGISTERED
NO. [ ] $ [ ]
SEE REVERSE FOR CERTAIN DEFINITIONS
THE PRINCIPAL OF THIS CLASS A-[ ] BOND WILL BE PAID IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
CLASS A-[ ] XXXX AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
PSNH FUNDING LLC
CLASS A-[ ]
RATE REDUCTION BOND, SERIES 2001-1
BOND SCHEDULED FINAL CUSIP
INTEREST MATURITY DATE MATURITY
RATE DATE
REGISTERED OWNER: Cede & Co.
PRINCIPAL AMOUNT:
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO PSNH FUNDING LLC
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This Bond does not represent an interest in or obligation of the State
of New Hampshire, any governmental agency or instrumentality or Public
Service Company of New Hampshire, a New Hampshire corporation ("PSNH"). None
of the Bond or the underlying RRB Property (as defined in the Indenture) will
be guaranteed or insured by the State of New Hampshire, any other
governmental agency or instrumentality or by PSNH.
Neither the full faith and credit nor the taxing power of the State of
New Hampshire or any political subdivision thereof or any governmental agency
or instrumentality is pledged to the payment of the principal of, or interest
on, this Bond, or to the payments in respect of or in repurchase of the RRB
Property, nor is the State of New Hampshire or any political subdivision
thereof or any governmental agency or instrumentality in any manner obligated
to make any appropriation for the payment thereof.
To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Indenture.
THIS CERTIFIES THAT CEDE & CO., as nominee for The Depository Trust
Company, for value received, is the registered owner of a Principal Amount
(stated above) of nonassessable and fully-paid Bond. PSNH Funding LLC, a
limited liability company formed and existing under the laws of the State of
Delaware (herein referred to as the "Issuer"), for value received, hereby
promises to pay to the person whose name appears as the registered holder of
this Class A-[ ] Bond, which shall initially be Cede & Co., the original
principal amount shown above in quarterly installments on the Payment Dates
and in the amounts specified on the reverse hereof or, if less, the amounts
determined pursuant to Section 8.02 of the Indenture, in each year,
commencing on the date determined as provided on the reverse hereof and
ending on or before the Final Maturity Date and to pay interest, at the Bond
Interest Rate shown above, on each February 1, May 1, August 1 and November 1
or if any such day is not a Business Day, the next succeeding Business Day,
commencing on November 1, 2001 and continuing until the earlier of the
payment of the principal hereof or the Final Maturity Date (each a "Payment
Date"), on the principal amount of this Class A-[ ] Bond. Interest on this
Class A-[ ] Xxxx will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid to but excluding such Payment
Date or, if no interest has yet been paid, from April 25, 2001. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Such principal of and interest on this Class A-[ ] Bond shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Class A-[ ] Bond are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Class A-[ ] Bond shall be
applied first to interest due and payable on this Class A-[ ] Bond as
provided above and then to the unpaid principal of this Class A-[ ] Xxxx,
all in the manner set forth in Section 8.02 of the Indenture.
Subject to and in accordance with the terms of the Indenture, the Issuer
has represented and warranted under the Indenture, that the Issuer
constitutes a "financing entity" under RSA 369-B:2, and that the Bonds
constitute "rate reduction bonds" under RSA 369-B:2 and that the Holders of
the Bonds are entitled to the rights and benefits thereunder. Pursuant to
RSA 369-B:6, II, the State of New Hampshire has pledged and agreed with the
Issuer and the Holders of the Bonds (the "State Pledge") as follows:
The state does hereby pledge, contract, and agree with the owners
of RRB property and holders of and trustees for rate reduction
bonds that neither the state, nor any of its agencies, including
the commission, shall limit, alter, amend, reduce, or impair the
RRB charge, RRB property, finance orders, and all rights thereunder
or ownership thereof or security interest therein until the rate
reduction bonds, including all principal, interest, premium, costs
and arrearages thereon, are fully met and discharged, provided
nothing contained in this paragraph shall preclude the limitation,
alteration, amendment, reduction, or impairment if and when
adequate provision shall be made by law for the protection of such
owners, holders and trustees. The state does hereby acknowledge
that such owners, holders and trustees may and will rely on this
pledge, contract, and agreement and that any such limitation,
alteration, amendment, reduction, or impairment without such
adequate provision will irreparably harm such owners, holders and
trustees. The state treasurer and the financing entity are each
authorized to include this pledge, contract, agreement, and
acknowledgment of the state in the documentation relating to the
rate reduction bonds.
Further, the Issuer has pledged and agreed with the Holders of the Bonds
that it will not act in a manner inconsistent with the State Pledge and will
not take any action that would impair any rights of the Holders of the Bonds
or the RRB Property.
Reference is made to the further provisions of this Class A-[ ] Bond
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Class A-[ ] Bond.
The Holder of this Class A-[ ] Xxxx by the acceptance hereof agrees to
be bound by the terms of the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee whose name appears below by manual signature, this Class A-[ ] Bond
shall not be entitled to any benefit under the Indenture, or any other Basic
Document, or be valid or obligatory for any purpose.
It is expressly agreed and understood by the parties hereto that (a)
this Bond is executed, authenticated and delivered by The Bank of New York,
not individually or personally but solely as Trustee, on behalf of the Issuer
in the exercise of the powers and authority conferred and vested in it, (b)
the representations, undertakings and agreements herein made by the Trustee
on behalf of the Issuer are made and intended not as personal
representations, undertakings and agreements of the Trustee, but are made and
intended for the purpose of binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on The Bank of New
York, individually or personally, to perform any covenant either expressed or
implied herein, except in its capacity as Trustee, all such liability being
expressly waived by all Persons, and (d) under no circumstances shall The
Bank of New York be personally liable for the payment of any indebtedness or
expenses of the Issuer, or be personally liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by
the Issuer under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: [ ], ______
PSNH FUNDING LLC
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: [ ], ______
This is one of the Bonds referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
[REVERSE OF BOND]
This Class A-[ ] Bond is one of a duly authorized issue of Bonds of the
Issuer, designated as its PSNH Funding LLC Rate Reduction Bonds, Series 2001-
1 (herein called the "Bonds"), issuable in one or more Classes, and further
designated as a Class A-[ ] Bond (collectively with all other Class A-[ ]
Bonds of this issue, the "Class A-[ ] Bonds"), all issued under a Indenture
dated as of April 25, 2001 (together with all amendments and supplements
thereto, the "Indenture"), between the Issuer and The Bank of New York, as
Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Trustee and the Holders of the
Bonds. All terms used in this Class A-[ ] Bond that are defined in the
Indenture shall have the meanings assigned to them in the Indenture. This
Class A-[ ] Xxxx does not purport to summarize the Indenture and reference
is made to the Indenture for information with respect to the interests,
rights, benefits, obligations, proceeds, and duties evidenced hereby. A copy
of the Indenture may be examined during normal business hours at the
principal office of the Trustee, and at such other places, if any, designated
by the Trustee, by any Holder upon request.
The Class A-[ ] Bonds and the other Classes of Bonds issued by the
Issuer are and will be equally and ratably secured by the collateral pledged
as security therefor, as provided in the Indenture.
The principal of this Class A-[ ] Bond shall be payable on each Payment
Date only to the extent that amounts in the Collection Account are available
therefor, and only until the outstanding principal balance thereof on such
Payment Date (after giving effect to all payments of principal, if any, made
on such Payment Date) has been reduced to the principal balance specified in
the Expected Amortization Schedule which is attached to the Indenture as
Schedule 1, unless payable earlier either because (x) an Event of Default,
other than an Event of Default pursuant to Section 5.01(g) of the Indenture,
shall have occurred and be continuing, and the Trustee has declared the Bonds
to be immediately due and payable in accordance with Section 5.02 of the
Indenture, (y) the Issuer, at its option, shall have called for the
redemption of the Bonds pursuant to Section 10.01 of the Indenture or (z) the
Issuer shall have called for the redemption of the Bonds pursuant to Section
10.04 of the Indenture if the Seller is required to repurchase the RRB
Property pursuant to Section 5.01(b) of the Sale Agreement. However, actual
principal payments may be made in lesser than expected amounts and at later
than expected times as determined pursuant to Section 8.02 of the Indenture.
The entire unpaid principal amount of this Class A-[ ] Bond shall be due and
payable on the earlier of the Final Maturity Date hereof, the Optional
Redemption Date, if any, and the Mandatory Redemption Date, if any, herefor.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Bonds shall be due and payable, if not then previously paid, on the date on
which an Event of Default shall have occurred and be continuing and the
Trustee has declared the Bonds to be immediately due and payable in the
manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A-[ ] Bonds shall be made pro rata to the Class A-[ ] Bondholders
entitled thereto based on the respective principal amounts of the Class A-[
] Bonds held by them.
Payments of interest on this Class A-[ ] Bond due and payable on each
Payment Date, together with the installment of principal shall be made by
check mailed first-class, postage prepaid, to the Person whose name appears
as the Registered Holder of this Class A-[ ] Bond (or one or more
Predecessor Bonds) on the Register as of the close of business on the Record
Date, or, upon written application of the Registered Holder if this Class A-[
]Bond is in the original principal amount of $1,000,000 or more to the
Trustee made at any time not later than the Record Date or continuing in
effect from a prior request, by wire transfer in immediately available funds
to the account of the Registered Holder at such bank located in New York, New
York having wire transfer capability as may be designated by the Registered
Holder, except that with respect to Bonds registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee, and except for the final
installment of principal payable with respect to this Class A-[ ] Bond on a
Payment Date which shall be payable as provided below. Such checks shall be
mailed to the Person entitled thereto at the address of such Person as it
appears on the Register as of the applicable Record Date without requiring
that this Class A-[ ] Bond be submitted for notation of payment. Any
reduction in the principal amount of this Class A-[ ] Bond (or any one or
more Predecessor Bonds) effected by any payments made on any Payment Date
shall be binding upon all future Holders of this Class A-[ ] Bond and of any
Bond issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-[ ] Bond on a Payment
Date, then the Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the Registered Holder hereof as of the Record Date
preceding such Payment Date by notice mailed no later than five days prior to
such final Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of this Class A-[ ] Xxxx at the
office of the Paying Agent or the office or agency maintained for that
purpose by the Trustee in the City of New York.
The Issuer shall pay interest on overdue installments of interest at the
Bond Interest Rate to the extent lawful.
As provided in the Indenture, the Class A-[ ] Bonds may be redeemed, in
whole but not in part, at the option of the Issuer on any Payment Date at the
Optional Redemption Price if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of the Bonds
has been reduced to less than five percent of the initial principal balance
thereof. In addition, as provided in the Indenture, if the Seller is
required to repurchase the RRB Property pursuant to Section 5.01(b) of the
Sale Agreement, the Issuer will be required to redeem all outstanding Bonds,
including the Class A-[ ] Bonds, on or before the fifth Business Day
following the Repurchase Date (as defined in the Sale Agreement).
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Class A-[ ] Bond may be registered on
the Register upon surrender of this Class A-[ ] Bond for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by (a) a written instrument of
transfer in form satisfactory to the Trustee and the Registrar duly executed
by the Holder hereof or such Xxxxxx's attorney duly authorized in writing,
with such signature guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee program acceptable to the Trustee, and (b)
such other documents as the Trustee may require, and thereupon one or more
new Class A-[ ] Bonds of Minimum Denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be charged for any registration of transfer or
exchange of this Class A-[ ] Bond, but the transferor may be required to pay
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange,
other than exchanges pursuant to Section 2.04 of the Indenture not involving
any transfer.
Each Bondholder , by acceptance of a Bond, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer or the Trustee on the Bonds or under the Indenture
or any certificate or other writing delivered in connection therewith,
against (i) the Trustee in its individual capacity, (ii) any owner of a
membership interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Trustee in its individual
capacity, any holder of a membership interest in the Issuer or the Trustee or
of any successor or assign of the Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Trustee has no such obligations in its individual capacity).
Prior to the due presentment for registration of transfer of this Class
A-[ ] Xxxx, the Issuer, the Trustee, the Registrar, the Paying Agent and any
other agent of the Issuer, the Trustee or the Registrar may treat the Person
in whose name this Class A-[ ] Xxxx is registered (as of the day of
determination) as the owner hereof for the purpose of receiving payments of
principal of and interest on this Class A-[ ] Bond and for all other
purposes whatsoever, whether or not this Class A-[ ] Bond be overdue, and
neither the Issuer, the Trustee, the Registrar, the Paying Agent nor any such
other agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer with the consent of the Holders of Bonds representing a
majority of the Outstanding Amount of all Bonds at the time Outstanding of
each Class to be affected. The Indenture also contains provisions permitting
the Holders of Bonds representing specified percentages of the Outstanding
Amount of the Bonds, on behalf of the Holders of all the Bonds, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Class A-[ ] Bond (or any one of more
Predecessor Bonds) shall be conclusive and binding upon such Holder and upon
all future Holders of this Class A-[ ] Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Class A-[
] Bond. The Indenture also permits the Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of
Holders of the Bonds issued thereunder.
The term "Issuer" as used in this Class A-[ ] Xxxx includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Trustee and the Holders
of Bonds under the Indenture.
The Class A-[ ] Bonds are issuable only in registered form without
coupons in Minimum Denominations of $1,000 original principal amount and
integral multiples thereof as provided in the Indenture, subject to certain
limitations therein set forth.
The Holder, by purchase of this Class A-[ ] Bond, will be deemed to
represent that such purchase will not result in a non-exempt prohibited
transaction under the Internal Revenue Code of 1986, as amended, or the
Employee Retirement Income Security Act of 1974, as amended, and, in each
case, the rules and regulations thereunder.
The Holder, by purchase of this Class A-[ ] Xxxx, will be deemed to
agree to treat this Bond as debt of the Issuer secured by, among other
things, the RRB Property and other related collateral, for all purposes.
THIS CLASS A-[ ] BOND AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW HAMPSHIRE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
No reference herein to the Indenture and no provision of this Class A-[
] Bond or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-[ ] Bond at the times, place, and rate, and in the
coin or currency herein prescribed.
The Holder of this Class A-[ ] Bond by the acceptance hereof agrees
that, notwithstanding any provision of the Indenture to the contrary, the
Holder shall have no recourse against the Issuer, but shall look only to the
Collateral, with respect to any amounts due to the Holder under this Class A-
[ ] Xxxx.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee: _________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________
________________________________________________________________________
(name and address of assignee)
the within Class A-[ ] Bond and all rights thereunder, and hereby
irrevocably constitutes and appoints __________________, attorney, to
transfer said Class A-[ ] Xxxx on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:
Signature Guaranteed:
* NOTE: The signature to this assignment must correspond with
the name of the registered owner as it appears on the face of
the within Class A-[ ] Bond in every particular, without
alteration, enlargement or any change whatsoever