MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1,
as Certificate Issuer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and
THE BANK OF NEW YORK,
as Certificate Trustee
____________________________
CERTIFICATE INDENTURE
Dated as of May 17, 2001
____________________________
$155,000,000
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1
RATE REDUCTION CERTIFICATES
ARTICLE I DEFINITIONS
Section 1.01. Definitions
Section 1.02. Compliance Certificates and Opinions
Section 1.03.Form of Documents Delivered to Certificate Trustee
Section 1.04. Acts of Certificateholders
ARTICLE II THE CERTIFICATES
Section 2.01. Terms of the Certificates
Section 2.02. Issuance of Certificates
Section 2.03.Form, Denomination and Execution of Certificates
Section 2.04. Authentication of Certificates
Section 2.05. Temporary Certificates
Section 2.06.Registration of Transfer and Exchange of Certificates
Section 2.07.Certificateholders' Lists and Reports by Certificate
Trustee
Section 2.08.Mutilated, Destroyed, Lost or Stolen Certificates
Section 2.09. Persons Deemed Owners
Section 2.10. Cancellation
Section 2.11. Limitation of Liability for Payments
Section 2.12. Book-Entry and Definitive Certificates
Section 2.13. Tax Treatment
ARTICLE III COVENANTS
Section 3.01. Compliance with Declaration of Trust
Section 3.02. No Additional Certificates
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Accounts
Section 4.02. Distributions from Certificate Accounts
Section 4.03. Statements to Certificateholders
Section 4.04. Investment of Special Payment Moneys
Section 4.05. Reduction in Principal
ARTICLE V DEFAULTS
Section 5.01. Events of Default
Section 5.02. Incidents of Sale of Notes
Section 5.03.Judicial Proceedings Instituted by Certificate
Trustee; Certificate Trustee May Bring Suit
Section 5.04. Control by Certificateholders
Section 5.05. Waiver of Past Defaults
Section 5.06.Right of Certificateholders To Receive Payments Not To
Be Impaired
Section 5.07.Certificateholders May Not Bring Suit Except Under
Certain Conditions
Section 5.08. Remedies Cumulative
ARTICLE VI THE CERTIFICATE TRUSTEE
Section 6.01. Notice of Defaults
Section 6.02. Certain Rights of Certificate Trustee
Section 6.03.Not Responsible for Recitals or Issuance of Ce
rtificates
Section 6.04. May Hold Certificates
Section 6.05. Money Held in Trust
Section 6.06.Compensation and Reimbursement; Indemnification
Section 6.07.Corporate Certificate Trustee Required; Eligibility
Section 6.08.Resignation and Removal; Appointment of Successor
Section 6.09. Acceptance of Appointment by Successor
Section 6.10.Merger, Conversion, Consolidation or Succession to
Business
Section 6.11. Maintenance of Agencies
Section ▇.▇▇.▇▇▇▇▇ for Certificate Payments To Be Held in Trust
Section 6.13.Registration of Notes and Eligible Investments in
Certificate Trustee's Name
Section 6.14.Representations and Warranties of Certificate Trustee
Section 6.15. Withholding Taxes; Information Reporting
ARTICLE VII SUPPLEMENTAL CERTIFICATE INDENTURES
Section 7.01.Supplemental Certificate Indentures Without Consent of
Certificateholders
Section 7.02.Supplemental Certificate Indentures With Consent of
Certificateholders
Section 7.03. Documents Affecting Immunity or Indemnity
Section 7.04.Execution of Supplemental Certificate Indentures
Section 7.05. Effect of Supplemental Certificate Indentures
Section 7.06. Conformity with Trust Indenture Act
Section 7.07.Reference in Certificates to Supplemental Certificate
Indentures
Section 7.08. Delaware Trustee
ARTICLE VIIIAMENDMENTS AND SUPPLEMENTS TO NOTES, NOTE INDENTURE AND
OTHER BASIC DOCUMENTS
Section 8.01.Amendments and Supplements to Notes, Note Indenture
and Other Basic Documents
ARTICLE IX SATISFACTION AND DISCHARGE
Section 9.01.Satisfaction and Discharge of Certificate Indenture
ARTICLE X MISCELLANEOUS PROVISIONS
Section 10.01.Commonwealth Pledge; Certificates and Notes Not
Obligations of The Commonwealth of Massachusetts,
Agencies or Seller
Section 10.02. Limitation on Rights of Certificateholders
Section 10.03. No Recourse to Certificate Issuer
Section 10.04. Certificates Nonassessable and Fully Paid
Section 10.05. Notices
Section 10.06. Governing Law
Section 10.07. Severability of Provisions
Section 10.08. Conflict With Trust Indenture Act
Section 10.09. Effect of Headings and Table of Contents
Section 10.10. Successors and Assigns; Delegation
Section 10.11. Benefits of Certificate Indenture
Section 10.12. Legal Holidays
Section 10.13. Counterparts
Section 10.14. The Delaware Trustee
Section 10.15. Nonpetition Covenants
CERTIFICATE INDENTURE, dated as of May 17, 2001, between MASSACHUSETTS
RRB SPECIAL PURPOSE TRUST WMECO-1, a Delaware business trust (the
"Certificate Issuer") formed under the Declaration of Trust, THE BANK OF NEW
YORK (DELAWARE), as Delaware trustee (the "Delaware Trustee"), and THE BANK
OF NEW YORK, as certificate trustee (the "Certificate Trustee").
RECITALS
The Note Issuer intends to issue its WMECO Funding LLC Notes (the
"Notes") with an aggregate principal amount of $155,000,000, consisting of
Class A-1, pursuant to the Note Indenture. In order to finance the purchase
of the Notes pursuant to the Note Purchase Agreement relating to the Notes,
the Certificate Issuer shall issue, pursuant to this Certificate Indenture,
its Massachusetts RRB Special Purpose Trust WMECO-1 Rate Reduction
Certificates (the "Certificates") with an aggregate principal amount of
$155,000,000, consisting of Class A-1, each of which shall represent a
fractional undivided beneficial interest in the corresponding Class of Notes
and the proceeds thereof.
The Certificate Issuer has duly authorized the execution and delivery of
this Certificate Indenture to provide the terms and conditions for the
issuance of the Certificates. The Certificate Issuer is entering into this
Certificate Indenture, and the Certificate Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
GRANTING CLAUSE
The Certificate Issuer hereby Grants to the Certificate Trustee on the
Issuance Date, as Certificate Trustee for the benefit of the Holders of the
Certificates, all of the Certificate Issuer's right, title and interest in
and to the Notes acquired pursuant to the Note Purchase Agreement, together
with all payments thereon and proceeds thereof, the Statutory Lien, and other
property constituting the Trust Property relating to each such Class of
Notes, all as provided in this Certificate Indenture.
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the
Certificates, and to secure compliance with the provisions of this
Certificate Indenture with respect to the Certificates, all as provided in
this Certificate Indenture. This Certificate Indenture constitutes a
security agreement within the meaning of the UCC to the extent that, under
Massachusetts law, the provisions of the UCC are applicable hereto.
The Certificate Trustee, as trustee on behalf of the Holders of the
Certificates, acknowledges such ▇▇▇▇▇, 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 Certificates are to be issued, countersigned and delivered
and that all of the Trust Property is to be held and applied, subject to the
further covenants, conditions, releases, uses and trusts hereinafter set
forth, and the Certificate Issuer, for itself and any successor, does hereby
covenant and agree to and with the Certificate Trustee and its successors in
said trust, for the benefit of the Holders, as follows:
ARTICLE I
Definitions
Section 1.01. Definitions.
(a) For all purposes of this Certificate Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) 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;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular;
(vi) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Certificate Indenture as a whole and not to
any particular Article, Section or other subdivision;
(vii) all references in this Certificate Indenture to
designated "Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this Certificate
Indenture; and
(viii) Whenever this Certificate Indenture refers to a provision
of the Trust Indenture Act, the provision is incorporated by reference
in and made a part of this Certificate Indenture. The following Trust
Indenture Act terms used in this Certificate Indenture have the
following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Certificates.
"indenture security holder" means a Certificateholder.
"indenture to be qualified" means this Certificate Indenture.
"indenture trustee" or "institutional trustee" means the
Certificate Trustee.
"obligor" on the indenture securities means the Certificate Issuer
and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Certificate 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 meaning
assigned to them by such definitions.
"Act," when used with respect to any Certificateholder, has the meaning
specified in Section 1.04.
"Agencies" means collectively the Massachusetts Development Finance
Agency and the Massachusetts Health and Educational Facilities Authority.
"Authentication Agent" means the authentication agent appointed pursuant
to Section 6.11.
"Authorized Agent" means any Paying Agent, Authentication Agent or
Certificate Registrar.
"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 Certificate Trustee on
the Issuance Date (as such list may be modified or supplemented from time to
time thereafter).
"Avoidable Tax" has the meaning set forth in Section 6.08(f).
"Book-Entry Certificates" means, with respect to any Certificate, a
beneficial interest in such Certificate, ownership and transfers of which
shall be made through book entries by a Clearing Agency as described in
Section 2.12.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in New York, New York, Boston,
Massachusetts, Hartford, Connecticut or Wilmington, Delaware are authorized
or obligated by law, regulation or executive order to remain closed.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del.C., 3801 et seq., as the same may be amended from
time to time and any successor statute.
"Certificate Account" means, with respect to any Class of Certificates,
the account or accounts created and maintained with respect to such Class of
Certificates pursuant to Section 4.01(a).
"Certificate 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 Certificates established hereunder.
"Certificate Owner" means the Person who owns a Book-Entry Certificate.
"Certificate Register" has the meaning set forth in Section 2.06.
"Certificate Registrar" means, initially, the Certificate Trustee,
pursuant to Section 2.06, and any successor registrar that meets the
eligibility standards specified in Section 6.11(b).
"Certificate Trustee" means The Bank of New York, as Certificate Trustee
under this Certificate Indenture, and its successors in interest, and any
successor Certificate Trustee appointed as provided herein.
"Certificate Trustee Expenses" has the meaning set forth in Section
6.06.
"Certificate Trustee Indemnified Persons" has the meaning set forth in
Section 6.06.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate is registered on the Certificate Register.
"Certificates" has the meaning set forth in Section 2.01(a).
"Class" means any one of the classes of Certificates; and, with respect
to the Notes, any one of the classes of Notes.
"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.
"Commonwealth Pledge" has the meaning set forth in Section 10.01(a).
"Corporate Trust Office" means the principal office of the Certificate
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Certificate
Indenture is located at the address provided in Section 10.05, or at such
other address as the Certificate Trustee may designate from time to time by
notice to the Certificateholders and the Certificate Issuer, or the principal
corporate trust office of any successor Certificate Trustee (the address of
which the successor Certificate Trustee will notify the Certificateholders
and the Certificate Issuer).
"Declaration of Trust" means the Declaration of Trust, relating to the
creation of the Certificate Issuer, dated as of May 15, 2001 by The Bank of
New York (Delaware), as Delaware Trustee, and the Massachusetts Development
Finance Agency and the Massachusetts Health and Educational Facilities
Authority, acting jointly as settlors thereunder pursuant to the Statute, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Definitive Certificates" has the meaning set forth in Section 2.12(a).
"Distribution Date" means, with respect to the Certificates, a Payment
Date with respect to the Notes.
"DTC Agreement" means the agreement between the Certificate Trustee, on
behalf of the Certificate Issuer, and The Depository Trust Company, as the
initial Clearing Agency, dated as of May 17, 2001, relating to the
Certificates, 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,
▇▇▇▇▇'▇ 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
Certificate 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), (i) which has either a long-term unsecured debt rating of AAA
by Standard & Poor's and Fitch and Aaa by ▇▇▇▇▇'▇ or a certificate of deposit
rating of A-1+ by Standard & Poor's, F1+ by Fitch and P-1 by ▇▇▇▇▇'▇, or any
other long-term, short-term or certificate of deposit rating acceptable to
Standard & Poor's, ▇▇▇▇▇'▇ and Fitch and (ii) whose deposits are insured by
the FDIC. If so qualified under clause (b) above, the Certificate 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 of
America 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, ▇▇▇▇▇'▇ 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, ▇▇▇▇▇'▇ 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, ▇▇▇▇▇'▇ and Fitch (if rated by Fitch) in the
highest investment category granted thereby (including funds for which
the Certificate 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 ▇▇▇▇▇'▇,
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 ▇▇▇▇▇'▇,
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 ▇▇▇▇▇'▇ 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" means, with respect to the Certificates, (i) a Note
Event of Default, or (ii) a breach by The Commonwealth of Massachusetts of
the Commonwealth Pledge.
"FDIC" means the Federal Deposit Insurance Corporation or any successor.
"Fee and Indemnity Agreement" means the fee and indemnity agreement
dated as of May 17, 2001, among the Note Issuer, the Note Trustee, the
Delaware Trustee, the Certificate Trustee, the Certificate Issuer and the
Agencies, as amended and supplemented from time to time.
"Final Termination Date" means, with respect to any Class of
Certificates, the Final Maturity Date of the related Class of Notes.
"Grant" means mortgage, pledge, collaterally assign and ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest pursuant to this Certificate Indenture. A Grant
of the Trust Property or of any other agreement or instrument shall include
all rights, powers and options (but none of the obligations) of the Granting
Person thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for payments in respect of the Trust
Property 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
Person or otherwise and generally to do and receive anything that the
Granting Person is or may be entitled to do or receive thereunder or with
respect thereto.
"Interest Rate" has the meaning set forth in Section 2.01(b).
"Minimum Denomination" means $1,000 or any integral multiple of $1.00 in
excess thereof; provided, however, that one Certificate of each Class may be
of a smaller denomination.
"Note Event of Default" means, with respect to the Notes, any Event of
Default (as such term is defined in the Note Indenture).
"Note Indenture" means the Note Indenture dated as of May 17, 2001
between the Note Issuer and the Note Trustee, as amended and supplemented
from time to time.
"Note Issuer" means WMECO Funding LLC, a Delaware limited liability
company, and its successors in interest.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
May 17, 2001, between the Note Issuer and the Certificate Issuer, as the same
may be amended or supplemented from time to time.
"Note Trustee" means the Person acting as Note Trustee under the Note
Indenture.
"Notes" has the meaning set forth in the recitals to this Certificate
Indenture.
"Officer's Certificate" means a certificate signed by any Authorized
Representative of the Certificate Issuer, under the circumstances described
in, and otherwise complying with, the applicable requirements of
Section 1.02, and delivered to the Certificate Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Certificate Indenture, be
an employee of or counsel to the Certificate Issuer and who shall be
reasonably satisfactory to the Certificate Trustee, and which opinion or
opinions shall be addressed to the Certificate Trustee shall comply with any
applicable requirements of Section 1.02, and shall be in form and substance
reasonably satisfactory to the Certificate Trustee.
"Original Principal Amount" means, with respect to any Certificate, the
amount set forth as such on the face of such Certificate on the date of its
issuance.
"Outstanding" means, as of the date of determination, all Certificates
theretofore authenticated and delivered under this Certificate Indenture
except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
(ii) Certificates or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the
Certificate Trustee or any Paying Agent in trust for the Holders of such
Certificates (provided, however, that if such Certificates are to be
redeemed, notice of such redemption has been duly given pursuant to this
Certificate Indenture or provision therefor, reasonably satisfactory to
the Certificate Trustee, has been made); and
(iii) Certificates in exchange for or in lieu of other
Certificates that have been authenticated and delivered pursuant to this
Certificate Indenture unless proof satisfactory to the Certificate
Trustee is presented that any such Certificates are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Certificates or any Class thereof have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or under any Basic Document, Certificates owned by the Note Issuer,
the Certificate Issuer, any other obligor upon the Certificates, 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
Certificate Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Certificates that a Responsible Officer of the Certificate Trustee actually
knows to be so owned shall be so disregarded. Certificates so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Certificate Trustee the pledgee's
right so to act with respect to such Certificates and that the pledgee is not
the Note Issuer, any other obligor upon the Certificates, the Certificate
Issuer, the Seller, or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Certificates, or, if the context requires, all Certificates of a Class,
Outstanding at the date of determination.
"Paying Agent" means the Certificate Trustee or any other Person that
meets the eligibility standards specified in Section 6.11(b) and is
authorized by the Certificate Issuer (with the prior written approval of the
Note Issuer) to make distributions of principal of or interest with respect
to the Certificates.
"Payment" means, with respect to the Notes, any payment (other than a
Special Payment but including any Redemption Payment) of principal of or
interest thereon.
"Payment Date" means, with respect to the Notes, the date or dates
specified as Payment Dates therefor in the Note Indenture.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Record Date" means, with respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date or,
if Definitive Certificates are issued, the close of business on the first day
of the calendar month preceding the calendar month in which such Distribution
Date occurs.
"Redemption Payment" means, with respect to the Notes, any payment of
principal of and interest on the Notes due from the Note Issuer upon the
early redemption of the Notes, other than any such payment due by reason of
the occurrence of a Note Event of Default.
"Request" means a written request by the Certificate Issuer setting
forth the subject matter of the request accompanied by an Officer's
Certificate and an Opinion of Counsel as provided in Section 1.02.
"Responsible Officer" means, with respect to the Certificate Trustee (or
Delaware Trustee, as applicable), 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 Certificate Trustee (or Delaware Trustee, as applicable)
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 Certificate Indenture (or in the case of the Delaware
Trustee, the Declaration of Trust).
"Sale Agreement" means the Transition Property Purchase and Sale
Agreement dated as of May 17, 2001, between the Seller and the Note Issuer,
as amended and supplemented from time to time.
"Scheduled Final Distribution Date" means, with respect to any Class of
Certificates, the Scheduled Maturity Date of the related Class of Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Western Massachusetts Electric Company, a Massachusetts
corporation, and its permitted successors and assigns under the Sale
Agreement.
"Servicer" means Western Massachusetts Electric Company, a Massachusetts
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.
"Servicing Agreement" means the Transition Property Servicing Agreement
dated as of May 17, 2001, between the Servicer and the Note Issuer, as
amended and supplemented from time to time.
"Special Distribution Date" means, with respect to the distribution of
any Special Payment with respect to any Class of Notes, the later of (i) the
date receipt of such Special Payment is confirmed by the Certificate Trustee
and (ii) the date that is the earlier of (A) if the Certificate Trustee shall
have received such Special Payment without prior notice thereof, 20 days
after such receipt is confirmed or (B) unless such Special Payment represents
the proceeds of a sale of such Notes by the Certificate Trustee (in which
event the Special Distribution Date for such proceeds shall be the earliest
date for which it is practicable for the Certificate Trustee to give the 20-
day notice required by Section 4.02(d)), the date that is 20 days after the
Certificate Trustee receives notice from the Note Issuer of the anticipated
payment of such Special Payment; provided, however, that in the event of the
repurchase of the Transition Property by the Seller, the Special Distribution
Date shall mean a date not later than five Business Days after receipt of
such proceeds.
"Special Payment" means, with respect to any Class of Notes, (i) any
payment of principal of or interest on (including any interest accruing upon
default), or any other amount in respect of, the Notes of such Class that is
paid more than five days after the Payment Date applicable thereto or
(ii) any proceeds from the sale of such Notes by the Certificate Trustee
pursuant to Article V hereof or the repurchase of the Transition Property by
the Seller pursuant to Article V of the Sale Agreement.
"Special Record Date" means, with respect to any Special Distribution
Date, the close of business on the 20th day (whether or not a Business Day)
preceding such Special Distribution Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
on the date hereof, unless otherwise specifically provided.
"Trust Property" means, with respect to any Class of Certificates, the
Class of Notes corresponding to such Class of Certificates held as the
property of the Certificate Issuer and all monies at any time paid thereon
and all monies due and to become due thereunder, all rights of the
Certificate Trustee or the Certificate Issuer, as holder of such Class of
Notes, in and to the Collateral and any proceeds thereof, funds from time to
time deposited in the Certificate Account for such Class of Certificates, the
Statutory Lien and any proceeds from the sale by the Certificate Trustee
pursuant to Article V hereof of Notes of such Class.
"Underwriters" means the underwriters who purchase the Certificates from
the Certificate Issuer and sell the Certificates in a public offering.
(b) Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective meanings set forth
in the Note Indenture as in effect on the Issuance Date for all purposes of
this Certificate Indenture.
Term Section of
Note
Indenture
Administrator 1.01(a)
Affiliate 1.01(a)
Basic Documents 1.01(a)
Capital Subaccount 1.01(a)
Code 1.01(a)
Collateral 1.01(a)
DTE 1.01(a)
Exchange Act 1.01(a)
Expected Amortization Schedule 1.01(b)
Final Maturity Date 1.01(a)
Financing Order 1.01(b)
Fitch 1.01(a)
Issuance Date 1.01(a)
▇▇▇▇▇'▇ 1.01(a)
Overcollateralization Subaccount 1.01(a)
Rating Agency 1.01(a)
Rating Agency Condition 1.01(a)
Reserve Subaccount 1.01(a)
Scheduled Maturity Date 1.01(a)
Standard & Poor's 1.01(a)
State 1.01(a)
Statute 1.01(a)
Statutory Lien 1.01(a)
Transition Property 1.01(b)
UCC 1.01(a)
(c) When reference is made herein to the Certificates of any Class,
such reference shall mean the Certificates of such Class.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Certificate Issuer to the Certificate Trustee
to take any action under any provision of this Certificate Indenture, the
Certificate Issuer shall furnish to the Certificate Trustee an Officer's
Certificate stating that, in the opinion of the signer thereof, all
conditions precedent, if any, provided for in this Certificate Indenture
relating to the proposed action have been complied with and, if requested by
the Certificate Trustee, an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
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 Certificate Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Any such
application or request by the Certificate Issuer to the Certificate Trustee
shall also be accompanied by evidence reasonably satisfactory to the
Certificate Trustee that the Note Issuer has given its prior written approval
of such application or request.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Certificate Indenture shall include:
(a) a statement that each signatory of such certificate or opinion
has read or caused to be read such covenant or condition and the definitions
herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Certificate Trustee.
Error! Bookmark not defined. 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.
(a) Any certificate or opinion of an Authorized Representative of
the Certificate 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 certificate or opinion is based are erroneous. Any such
certificate of an Authorized Representative 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 Note Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Note Issuer or the Administrator, as the case may
be, unless such officer or 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.
(b) Whenever in this Certificate Indenture, in connection with any
application or certificate or report to the Certificate Trustee, it is
provided that the Certificate Issuer shall deliver any document as a
condition of the granting of such application, or as evidence of the
Certificate 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 Certificate 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 Certificate Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Certificate Indenture, they may, but need not,
be consolidated and form one instrument.
Section 1.04. Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Certificate Indenture to be
given or taken by Certificateholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Certificateholders in person or by their agents duly appointed in writing;
and except as herein otherwise expressly provided such request, demand,
authorization, direction, notice, consent, waiver or other action shall
become effective when such instrument or instruments are delivered to the
Certificate Trustee, and, where it is hereby expressly required, to the
Certificate Issuer and the Note Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Certificateholders 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
Certificate Indenture and (subject to Article VI) conclusive in favor of the
Certificate Trustee, the Certificate Issuer and the Note Trustee, 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 Certificate
Trustee deems sufficient.
(c) The ownership of Certificates shall be proved by the
Certificate Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificates shall bind
the Holder of every Certificate 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 Certificate Trustee, the Certificate Issuer or the
Note Trustee in reliance thereon, whether or not notation of such action is
made upon such Certificate.
(e) The Certificate Issuer may at its option by delivery of an
Officer's Certificate to the Certificate Trustee set a record date to
determine the Holders of any Class of Certificates entitled to give any
consent, request, demand, authorization, direction, notice, waiver or other
Act. Notwithstanding Section 316(c) of the Trust Indenture Act, 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
Certificateholders 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 Certificates of the applicable Class at the close of business on such
record date shall be deemed to be Certificateholders of such Class for the
purposes of determining whether Holders of the requisite aggregate
Outstanding Amount of Certificates 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
Certificates 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 Certificates of such
Class on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Certificate Indenture not later
than one year after the record date.
(f) Except as otherwise provided in the definition of Outstanding,
Certificates of any Class owned by or pledged to any Person shall have an
equal and proportional benefit under the provisions of this Certificate
Indenture, without preference, priority or distinction as among all of the
Certificates of that Class.
ARTICLE II
The Certificates
Section 2.01. Terms of the Certificates.
(a) Authorization; Designation. The issuance of the Certificates
is hereby authorized and the Certificates shall be designated generally as
the Massachusetts RRB Special Purpose Trust WMECO-1 Rate Reduction
Certificates (the "Certificates"), and further designated as Class A-1. Each
such Class shall be in an aggregate principal amount equal to the
corresponding Class of Notes as set forth in the Note Purchase Agreement.
(b) Initial Principal Amount; Certificate Interest Rate; Scheduled
Final Distribution Date; Final Termination Date. The Certificates of each
Class shall have the initial principal amount, bear interest at the rates per
annum (each an "Interest Rate") and shall have Scheduled Final Distribution
Dates and Final Termination Dates as set forth below:
Class Initial Interest Scheduled Final
Principal Rate Final Termination
Amount Distribution Date
Date
A-1 $155,000,000 6.53% June 1, 2013 June 1, 2015
The Interest Rate of the Certificates shall be computed on the basis of
a 360-day year of twelve 30-day months.
Section 2.02. Issuance of Certificates. On the Issuance Date, the
Certificate Issuer, subject to the provisions of this Certificate Indenture
and the Note Purchase Agreement, shall issue, and the Delaware Trustee shall
execute on behalf of the Certificate Issuer and the Certificate Trustee shall
authenticate and deliver, in fully registered form only, the Certificates of
the Class corresponding to the Class of Notes issued on such Issuance Date,
all in accordance with the Note Purchase Agreement. Each Certificate
represents a fractional undivided beneficial interest in a corresponding
Class of Notes and the proceeds thereof. Prior to the execution and
authentication of the Certificates of any Class, the Certificate Trustee
shall have received the following:
(a) The Class of Notes, duly executed by the Note Issuer and
authenticated by the Note Trustee, corresponding to the Class of Certificates
to be issued;
(b) A certificate of an Authorized Representative of the Note
Issuer to the effect that all conditions required to be satisfied under
Section 2.10 of the Note Indenture for the issuance of such Class of Notes
and all conditions required to be satisfied under the Note Purchase Agreement
for the purchase of the Notes by the Certificate Issuer have been satisfied,
together with executed copies of all documents, certificates, opinions,
orders or approvals establishing satisfaction of such conditions;
(c) An order of an Authorized Representative of the Certificate
Issuer (i) directing the Delaware Trustee on behalf of the Certificate Issuer
to execute and deliver this Certificate Indenture to be executed in
connection with the Certificates to be issued hereunder, (ii) directing the
Delaware Trustee on behalf of the Certificate Issuer to execute and deliver
the Note Purchase Agreement and (iii) directing the Delaware Trustee to
execute and deliver on behalf of the Certificate Issuer, and the Certificate
Trustee to authenticate, as Authentication Agent, global Certificates, 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 Certificates to DTC
in New York, New York so that the Certificates may be credited to or upon the
order of the Underwriters named in said order for the purchase price
specified therein and directing the application of the proceeds thereof;
(d) An Opinion of Counsel, portions of which may be delivered by
counsel to the Certificate Issuer and portions of which may be delivered by
counsel to the Certificate Trustee or other counsel satisfactory to the
Certificate Trustee, dated the Issuance Date in each case subject to the
customary exceptions, qualifications and assumptions contained therein (which
may include, for the purpose of the Issuance Date, the assumption that the
Financing Order has been duly authorized by the DTE and is in full force and
effect), to the effect that:
(i) the Certificate Issuer has the business trust power and
authority to execute and deliver this Certificate Indenture and to issue
the Certificates, and this Certificate Indenture has been duly
authorized, executed and delivered by the Certificate Issuer and
Delaware Trustee;
(ii) this Certificate Indenture constitutes a valid and binding
agreement of the Certificate Issuer and Delaware Trustee, enforceable in
accordance with its terms except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), including that the availability of
specific enforcement or injunctive relief is subject to the discretion
of the court before which any such proceeding is brought;
(iii) all instruments furnished to the Certificate Trustee as
conditions precedent to the delivery of the Certificates conform to the
requirements of this Certificate Indenture and constitute all documents
required to be delivered thereunder to authorize the Certificate Trustee
to execute, authenticate and deliver the Certificates;
(iv) the Certificates to be issued have been duly authorized and
executed and, when authenticated in accordance with the provisions of
this Certificate Indenture and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement dated May 14, 2001,
among the Seller, the Note Issuer and ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as the representatives of the several underwriters
named therein, will represent valid, fully paid and nonassessable
undivided beneficial interests in the assets of the Certificate Issuer,
entitled to the benefits of this Certificate Indenture;
(v) the Note Purchase Agreement has been duly executed and
delivered by the Delaware Trustee on behalf of the Certificate Issuer
and, assuming due authorization, execution and delivery thereof by the
Note Issuer, constitutes a legal, valid and binding agreement of the
Certificate Issuer, enforceable against the Certificate Issuer in
accordance with its terms except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), including that the availability of
specific enforcement or injunctive relief is subject to the discretion
of the court before which any such proceeding is brought;
(vi) the Certificate Issuer is a duly organized and validly
existing business trust under the Business Trust Statute and is in good
standing;
(vii) this Certificate Indenture has been duly qualified under
the Trust Indenture Act or no such qualification is necessary;
(viii) the Certificate Issuer constitutes a "special purpose
trust" and a "financing entity" under Section 1H(a) of Chapter 164 of
the Massachusetts General Laws, and the Certificates constitute
"electric rate reduction bonds" under Section 1H(a) of Chapter 164 of
the Massachusetts General Laws and the Holders of the Certificates are
entitled to the rights and benefits thereunder;
(ix) for Federal income tax purposes, the Certificate Issuer is not
a business entity classified as a corporation or a publicly traded
partnership treated as a corporation, but is a "grantor trust" not
taxable as a corporation;
(x) the Statute creates, upon the effective date of the Financing
Order, a first priority lien in the Transition Property securing all
obligations, then existing or subsequently arising, to the Holders of
the Certificates in respect of such Certificates or to the Certificate
Trustee in its capacity as such; and
(xi) such other matters as the Certificate Trustee may reasonably
require.
(e) Sufficient funds to pay the purchase price for the related
Class of Notes, as specified in Section 1(b) of the Note Purchase Agreement;
and
(f) The Rating Agency Condition shall have been satisfied with
respect to the issuance of the Class of Certificates.
Section 2.03. Form, Denomination and Execution of Certificates. The
Certificates shall be issued in registered form without coupons and shall be
substantially in the form attached hereto as Exhibit A, with the following
filled in: (a) the designation of the Classes thereof, which shall be the
same designation as the related Class or Classes of Notes, (b) the
Certificate number or numbers thereof, (c) the date of authentication
thereof, which shall be the same as the Issuance Date of the related Class or
Classes of Notes, and (d) the Original Principal Amount thereof, which shall
equal, in the aggregate, the principal amount of the Notes; and with such
omissions, variations and insertions as are permitted by this Certificate
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 Certificates may be
listed or to conform to any usage in respect thereof, or as may, consistently
herewith, be prescribed by the Certificate Trustee or by the Certificate
Issuer (with the prior written approval of the Note Issuer), and as evidenced
by the execution and authentication of such Certificates.
Except as provided in Section 2.12, the definitive Certificates 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 Certificates of such
Class may be listed, as evidenced by an order by an Authorized Representative
of the Certificate Issuer, relating to the authentication of such
Certificates by the Certificate Trustee.
The Certificates of each Class shall be issued in not less than Minimum
Denominations.
The Certificates shall be executed on behalf of the Certificate Issuer
by the Delaware Trustee by manual or facsimile signature of a Responsible
Officer of the Delaware Trustee. Certificates bearing the manual or
facsimile signature of an individual who was, at the time when such signature
was affixed, authorized to sign on behalf of the Certificate Issuer shall be
validly issued by the Certificate Issuer, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such office at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Certificate Indenture, or be valid for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A hereto, executed by the Certificate Trustee (or any
Authentication Agent) by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 2.04. Authentication of Certificates. The Certificate Trustee
shall duly authenticate and deliver Certificates of each Class in authorized
denominations equaling, in the aggregate for each Class of Certificates, the
aggregate initial principal amount of the Notes of such Class.
Section 2.05. Temporary Certificates. Pending the preparation of
definitive Certificates of any Class, the Delaware Trustee on behalf of the
Certificate Issuer may execute, and the Certificate Trustee or any
Authentication Agent upon written order of the Certificate Issuer shall
authenticate and deliver, temporary Certificates of such Class that are
printed, lithographed, typewritten or otherwise produced, in any
denomination, containing substantially the same terms and provisions as set
forth in Exhibit A, except for such appropriate insertions, omissions,
substitutions and other variations relating to their temporary nature as the
Certificate Issuer may determine, as evidenced by the execution of such
temporary Certificates by the Delaware Trustee on behalf of the Certificate
Issuer.
If temporary Certificates of any Class are issued, the Certificate
Issuer will cause definitive Certificates of such Class to be prepared
without unreasonable delay. After the preparation of definitive Certificates
of such Class, the temporary Certificates shall be exchangeable for
definitive Certificates of such Class upon surrender of the temporary
Certificates at the Corporate Trust Office of the Certificate Trustee, or at
the office or agency of the Certificate Trustee maintained in accordance with
Section 6.11, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Certificates, the Delaware Trustee on behalf of
the Certificate Issuer shall execute and the Certificate Trustee shall
authenticate and deliver in exchange therefor definitive Certificates (of the
same Class as the temporary Certificates surrendered) of authorized
denominations of a like aggregate Original Principal Amount. Until so
exchanged, such temporary Certificates shall in all respects be entitled to
the same benefits under this Certificate Indenture as definitive Certificates
of the same Class.
Section 2.06. Registration of Transfer and Exchange of Certificates.
The Certificate Trustee shall cause to be kept at the office of agency to be
maintained by it in accordance with the provisions of Section 6.11 a register
(the "Certificate Register") in which, subject to such reasonable regulations
as it may prescribe, the Certificate Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as herein provided. The Certificate Trustee shall initially be the registrar
(the "Certificate Registrar") for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
Subject to this Section 2.06, upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office or such other
office or agency maintained by the Certificate Trustee in accordance with
Section 6.11, the Delaware Trustee on behalf of the Certificate Issuer shall
execute, and the Certificate Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Certificates (of the same
Class as the Certificates surrendered for registration of transfer) in
authorized denominations of a like aggregate Original Principal Amount;
provided, however, that if any such surrendered Certificate shall have become
or within 15 days shall be due and payable or shall have been called for
redemption, instead of issuing a replacement Certificate, the Certificate
Trustee may pay such surrendered Certificate when so due and payable or upon
the Special Distribution Date without surrender thereof.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates (of the same Class as the Certificates surrendered for
registration of exchange) of authorized denominations of a like aggregate
Original Principal Amount, upon surrender of the Certificates to be exchanged
at any such office or agency. Whenever any Certificates are so surrendered
for exchange, the Delaware Trustee on behalf of the Certificate Issuer shall
execute, and the Certificate Trustee shall authenticate and deliver the
Certificates that the Certificateholder making the exchange is entitled to
receive.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Certificate Trustee and the Certificate
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Certificate
Trustee shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Certificate Trustee in
accordance with its customary practices.
Section 2.07. Certificateholders' Lists and Reports by Certificate
Trustee.
(a) The Certificate Issuer To Furnish Certificate Trustee with
Names and Addresses of Certificateholders. The Certificate Registrar on
behalf of the Certificate Issuer will furnish or cause to be furnished to the
Certificate Trustee within 15 days after each Record Date, and at such other
times as the Certificate Trustee may request in writing, within 30 days after
receipt by the Certificate Issuer of any such request, a list, in such form
as the Certificate Trustee may reasonably require, of all information in the
possession or control of the Certificate Issuer as to the names and addresses
of the Certificateholders, in each case as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that so long as
the Certificate Trustee is the sole Certificate Registrar, no such list need
be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Certificate Register is being
furnished to the Certificate Trustee pursuant to Section 6.11.
Upon the written request of any Certificateholder or Certificateholders
of record holding Certificates evidencing not less than ten percent of the
aggregate Outstanding Amount of Certificates, the Certificate Trustee shall
afford such Certificateholder or Certificateholders access during business
hours to the current list of Certificateholders for purposes of communicating
with other Certificateholders with respect to their rights under this
Certificate Indenture.
(b) Preservation of Information. The Certificate Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Certificateholders contained in the most recent list furnished
to the Certificate Trustee as provided in Section 6.11 or Section 2.07(a), as
the case may be, and the names and addresses of Certificateholders received
by the Certificate Trustee in its capacity as Certificate Registrar, if so
acting. The Certificate Trustee may destroy any list furnished to it as
provided in Section 6.11 or Section 2.07(a), as the case may be, upon receipt
of a new list so furnished.
(c) Communications Among Certificateholders. Certificateholders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with
other Certificateholders with respect to their rights under this Certificate
Indenture or under the Certificates.
(d) Reports by Certificate Trustee. To the extent that any of the
events described in Section 313(a) of the Trust Indenture Act shall have
occurred, within 60 days after December 31 of each year, commencing with the
year 2001, the Certificate Trustee shall transmit to the Certificateholders,
as provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such December 31, if required by Section 313(a) of the Trust
Indenture Act. The Certificate Trustee also shall comply with Section 313(b)
of the Trust Indenture Act.
A copy of each report at the time of its mailing to Certificateholders
shall be filed by the Certificate Trustee with the Commission and with each
stock exchange, if any, on which the Certificates are listed and of which
listing the Certificate Trustee has been informed. The Certificate Issuer
shall notify the Certificate Trustee if and when the Certificates are listed
on any stock exchange.
(e) Reports by the Certificate Issuer. Pursuant to Section
314(a)(4) of the Trust Indenture Act, the Certificate Issuer shall furnish to
the Certificate Trustee, not less often than annually and prior to January 31
of each year, commencing January 31, 2002, a certificate prepared by the
Delaware Trustee on behalf of the Certificate Issuer as to the Certificate
Issuer's compliance with all conditions and covenants under this Certificate
Indenture. For purposes of this Section 2.07(e), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Certificate Indenture. In addition, the Certificate
Trustee shall forward such Certificate to the Certificateholders.
(f) Protections. The Certificate Issuer, the Certificate Trustee
and the Certificate Registrar shall have the protection of Section 312(c) of
the Trust Indenture Act.
Section 2.08. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Certificate 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 Certificate Registrar or the
Certificate Trustee that such Certificate has been acquired by a bona fide
purchaser, the Delaware Trustee, on behalf of the Certificate Issuer shall
execute, and the Certificate Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate (of the same Class as the Certificate so
mutilated, destroyed, lost or stolen) of like Original Principal Amount. In
connection with the issuance of any new Certificate under this Section 2.08,
the Certificate Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Certificate Trustee and the Certificate Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 2.08 shall constitute
conclusive evidence of the same interest in the Certificate Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Certificate
Issuer, whether or not the mutilated, destroyed, lost or stolen Certificate
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Certificate Indenture equally and proportionately with any
and all other Certificates duly issued hereunder.
Section 2.09. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Certificate Trustee, the
Delaware Trustee, the Certificate Registrar and any Paying Agent of the
Certificate Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.02 and for all other purposes whatsoever,
and none of the Certificate Trustee, the Delaware Trustee, the Certificate
Registrar or any Paying Agent of the Certificate Trustee shall be affected by
any notice to the contrary.
Section 2.10. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to any party hereto other than
the Certificate Registrar, be delivered to the Certificate Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except
as expressly permitted by this Certificate Indenture. All cancelled
Certificates held by the Certificate Registrar shall be delivered to the
Certificate Trustee and, in accordance with Section 2.06, destroyed.
Section 2.11. Limitation of Liability for Payments. All payments or
distributions made to Holders of Certificates under this Certificate
Indenture shall be made only from the Trust Property with respect to that
Class of Certificates and only to the extent that the Certificate Trustee
shall have sufficient income or proceeds from such Trust Property to make
such payments in accordance with the terms of Article IV of this Certificate
Indenture. Each Holder of a Certificate of any Class, by its acceptance of a
Certificate of that Class, agrees that it will look solely to the income and
proceeds from the Trust Property with respect to that Class to the extent
available for distribution to the Holder thereof as provided in this
Certificate Indenture. It is expressly understood and agreed by the parties
hereto that (a) the Certificates are executed, authenticated and delivered by
the Delaware Trustee and the Certificate Trustee, respectively, not
individually or personally but solely in their respective capacity as
Delaware Trustee and Certificate Trustee in the exercise of the powers and
authority conferred and vested in them, and (b) under no circumstances shall
the Delaware Trustee or Certificate Trustee be personally liable for the
payment of any of the Certificates or any indebtedness or expenses of the
Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Certificate
Issuer under this Certificate Indenture.
Section 2.12. Book-Entry and Definitive Certificates.
(a) The Certificates of any Class may be issued in the form of one
or more typewritten certificates representing the Book-Entry Certificates of
that Class, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Certificate Issuer. In such case,
the Certificates of such Class delivered to The Depository Trust Company
shall initially be registered on the Certificate Register in the name of
Cede & Co., the nominee of the initial Clearing Agency, and no Certificate
Owner will receive a definitive Certificate representing such Certificate
Owner's interest in the Certificate of such Class, except as provided in
Section 2.12(c) below. Unless and until definitive, fully registered
Certificates ("Definitive Certificates") of such Class have been issued
pursuant to Section 2.12(c) below:
(i) the provisions of this Section 2.12 shall be in full force and
effect with respect to the Certificates of such Class;
(ii) the Certificate Issuer, the Paying Agent, the Certificate
Registrar, the Delaware Trustee and the Certificate Trustee may deal
with the Clearing Agency for all purposes (including the making of
distributions on the Certificates of such Class) as the authorized
representative of the Certificate Owners of Certificates of such Class;
(iii) to the extent that the provisions of this Section 2.12
conflict with any other provisions of this Certificate Indenture, the
provisions of this Section 2.12 shall control;
(iv) the rights of Certificate Owners of Certificates of such Class
shall be exercised only through the Clearing Agency and shall be limited
to those established by law and agreements between such Certificate
Owners and the Clearing Agency Participants; and until Definitive
Certificates of such Class are issued pursuant to Section 2.12(c) below,
the Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal
of and interest on the Certificates of such Class to such Clearing
Agency Participants; and
(v) whenever this Certificate Indenture requires or permits
actions to be taken based upon instructions or directions of
Certificateholders holding Certificates of such Class representing a
specified percentage of the aggregate Outstanding Amount of Certificates
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 Certificate Owners or Clearing Agency Participants owning or
representing, respectively, Certificates representing such percentage of
the aggregate Outstanding Amount of Certificates of such Class, and has
delivered such instructions to the Certificate Trustee; the Certificate
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
Certificates of any Class issued in the form of Certificates representing
Book-Entry Certificates is required under this Certificate Indenture, unless
and until Definitive Certificates of such Class shall have been issued
pursuant to Section 2.12(c), the Certificate Trustee shall give all such
notices and communications specified herein to be given to Holders of
Certificates of such Class to the Clearing Agency.
(c) If (i) the Clearing Agency advises the Certificate Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Certificates of a Class,
and the Certificate Trustee or the Certificate Issuer is unable to locate a
qualified successor, (ii) the Certificate Issuer (with the prior written
approval of the Note Issuer) at its option advises the Certificate Trustee in
writing that it elects to terminate the book-entry system through the
Clearing Agency with respect to the Certificates of such Class or (iii) after
the occurrence of a Note Event of Default with respect to any Class of
Certificates, Certificate Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Certificates
advise the Clearing Agency and the Certificate Trustee in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners, then the Clearing Agency
shall notify all Certificate Owners and the Certificate Trustee of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to
the Certificate Trustee of the typewritten certificate or certificates
representing the Book-Entry Certificates by the Clearing Agency, accompanied
by registration instructions, and upon written direction by the Certificate
Issuer, the Delaware Trustee shall execute on behalf of the Certificate
Issuer and the Certificate Trustee shall authenticate the Definitive
Certificates in accordance with the instructions of the Clearing Agency.
None of the Certificate Issuer, the Certificate Registrar, the Delaware
Trustee or the Certificate 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
Certificates, the Certificate Trustee and the Delaware Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders.
Section 2.13. Tax Treatment.
(a) It is the intention of the parties hereto that the Certificate
Issuer shall be treated as a "grantor trust" for federal income tax purposes
and all transactions contemplated by this Certificate Indenture will be
reported consistent with such treatment.
(b) The provisions of this Certificate Indenture shall be
construed, and the affairs of the Certificate Indenture shall be conducted,
so as to achieve treatment of the Certificate Indenture as a "grantor trust"
for federal income tax purposes.
ARTICLE III
Covenants
Section 3.01. Compliance with Declaration of Trust. The Certificate
Issuer covenants and agrees to operate in strict conformity with the
Declaration of Trust, the terms of which are incorporated herein by
reference, and shall not amend the Declaration of Trust except as expressly
permitted thereunder or in any manner that would adversely affect the
interests of the Certificateholders.
This Certificate Indenture and the Declaration of Trust shall, together,
constitute the governing instrument of the Trust. To the extent that the
provisions of this Certificate Indenture and the Declaration of Trust
conflict with respect to the issuance of the Certificates and the rights of
the holders thereof, this Certificate Indenture shall control.
Section 3.02. No Additional Certificates. The Certificate Issuer shall
not issue any additional Certificates hereunder, except pursuant to Section
2.06 and Section 2.08.
ARTICLE IV
Distributions; Statements to Certificateholders
Section 4.01. Certificate Accounts.
(a) The Certificate Trustee shall establish and maintain, for the
Certificate Issuer, on behalf of the Holders of Certificates of each Class
one or more segregated trust accounts (which trust accounts need not be
separate bank accounts) with respect to such Class (each, a "Certificate
Account"), which shall be non-interest bearing except as provided in
Section 4.04, in the corporate trust department of an Eligible Institution,
in the name of the Certificate Trustee for the benefit of such
Certificateholders. The Certificate Trustee shall hold each Certificate
Account in trust for the benefit of the Holders of Certificates of the
corresponding Class, and shall make or permit withdrawals therefrom only as
provided in this Certificate Indenture. On each day when a Payment or
Special Payment (other than a Special Payment that represents the proceeds of
any sale pursuant to Article V hereof by the Certificate Trustee of any Note)
is made to the Certificate Trustee, as holder of Notes of any Class, the
Certificate Trustee upon receipt shall immediately deposit the aggregate
amount of such Payment or Special Payment in the Certificate Account for the
corresponding Class of Certificates. Upon the sale of any Note by the
Certificate Trustee pursuant to Article V and the realization of any proceeds
thereof, the Certificate Trustee shall deposit the aggregate amount of such
proceeds as a Special Payment in the Certificate Account for the Class of
Certificates corresponding to the Class of the Note so sold.
(b) The Certificate Trustee shall present to the Note Trustee for
payment each Note on its Final Maturity Date, or, in the case of any
redemption or repayment of such Note in full prior to its Final Maturity
Date, on the applicable Payment Date therefor.
(c) The Certificate Trustee (or any Paying Agent other than the
Certificate Trustee) shall have sole dominion and exclusive control over all
monies in the Certificate Accounts and shall apply such amounts therein as
provided in this Article.
Section 4.02. Distributions from Certificate Accounts.
(a) On any Distribution Date, the Certificate Trustee shall
distribute out of the Certificate Account for the corresponding Class of
Certificates, in the manner described in Section 4.02(e), the entire amount
of such Payment deposited therein pursuant to Section 4.01(a); provided,
however, that in the event receipt of any such Payment is not confirmed by
the Certificate Trustee by 1:00 p.m. (New York City time) on such
Distribution Date, distribution thereof shall be made on the day receipt
thereof is confirmed by the Certificate Trustee by 1:00 p.m. (New York City
time) or, if receipt thereof is confirmed by the Certificate Trustee after
1:00 p.m. (New York City time), on the following Business Day. There shall
be so distributed to each Holder of such Class of Certificates on the Record
Date with respect to such Distribution Date (other than as provided in
Section 9.01 with respect to a final distribution) such Certificateholder's
fractional undivided share (based on the aggregate Outstanding Amount of
Certificates of such Class held by such Certificateholder) of the aggregate
amount in the related Certificate Account. The foregoing notwithstanding, if
a Payment is not received by the Certificate Trustee by the day that is five
days after the related Payment Date, but is subsequently received, it will be
treated as a Special Payment pursuant to Section 4.02(b).
The final distribution with respect to any Certificate, however, will be
made only upon presentation and surrender of such Certificate at the office
or agency of the Certificate Trustee specified in the notice given by the
Certificate Trustee with respect to such final payment. The Certificate
Trustee will provide notice of a final distribution to each Holder as of the
date such notice is given with respect to any Certificate as soon as
practicable following receipt of notice from the Note Trustee of a final
payment on a corresponding Note.
(b) On each Special Distribution Date with respect to the
distribution of any Special Payment with respect to any Class of Notes, the
Certificate Trustee shall distribute out of the Certificate Account for the
corresponding Class of Certificates, in the manner described in
Section 4.02(e), the entire amount of such Special Payment deposited therein
pursuant to Section 4.01(a) and any income and earnings received from the
investment of such Special Payment pursuant to Section 4.04; provided,
however, that in the event receipt of any such Special Payment is not
confirmed by the Certificate Trustee by 1:00 p.m. (New York City time) on
such Special Distribution Date, distribution thereof shall be made on the day
receipt thereof is confirmed by the Certificate Trustee by 1:00 p.m.
(New York City time) or, if receipt thereof is confirmed by the Certificate
Trustee after 1:00 p.m. (New York City time), on the following Business Day.
There shall be so distributed to each Holder of such Class of Certificates on
the Special Record Date with respect to such Special Distribution Date (other
than as provided in Section 9.01 with respect to a final distribution) such
Certificateholder's fractional undivided share (based on the aggregate
Outstanding Amount of Certificates of such Class held by such
Certificateholder) of the aggregate amount of such Special Payment and any
income and earnings received from the investment of such Special Payment
pursuant to Section 4.04.
(c) The Certificate Trustee shall allocate amounts distributed to
Holders of Certificates of any Class on any Distribution Date or Special
Distribution Date as follows: (i) to the extent such amounts represent
payments of principal of the corresponding Class of Notes (including
prepayments or redemption price), or the proceeds of the sale of any such
Note by the Certificate Trustee pursuant to Article V (to the extent such
proceeds exceed the unpaid interest on the related class of Notes), such
amounts shall be allocated to principal of such Certificates and (ii) all
other such amounts shall be allocated to interest on such Certificates. The
Certificate Trustee may conclusively rely on the payment statement received
by it from the Servicer pursuant to the Servicing Agreement with any payment
in respect of any Class of Notes as to whether the amount so paid in respect
of such Notes is in respect of principal of or interest on such Notes. If no
statement is received, such payments received with respect to any Class of
Notes shall first be allocable to interest to the extent of any interest
accrued and payable on such Class of Notes, and then to principal.
(d) The Certificate Trustee shall cause notice of each Special
Payment with respect to any Class of Notes to be mailed to each Holder of
Certificates of the corresponding Class at its address as it appears in the
Certificate Register. In the event of (i) the optional redemption of the
Notes of any Class, such notice shall be mailed not less than five days nor
more than 25 days prior to the Special Distribution Date on which any such
Redemption Payment is scheduled to be distributed, and (ii) the mandatory
redemption of the Notes of any Class, such notice shall be mailed not less
than five days prior to the Special Distribution Date on which any such
Redemption Payment is scheduled to be distributed. In the case of any other
Special Payment, such notice shall be mailed not less than 20 days prior to
the Special Distribution Date on which any Special Payment is scheduled to be
distributed in respect of Certificates of such Class stating such anticipated
Special Distribution Date. Any such notice mailed by the Certificate Trustee
shall set forth:
(i) the Special Distribution Date or the Distribution Date, as
applicable, and the Special Record Date or Record Date therefor, as
applicable (except as otherwise provided in Section 9.01);
(ii) the amount of the Special Distribution for each $1,000
Original Principal Amount of Certificates of the applicable Class and
the amount thereof constituting principal and interest;
(iii) the reason for the Special Distribution; and
(iv) the total amount to be received on such date for each $1,000
Original Principal Amount of Certificates of the applicable Class but
only, in the case of a Special Payment, if the related Special
Distribution Date is also a Distribution Date.
(e) Distributions to Holders of Certificates shall be by check
sent by first-class mail to the address of such Holder appearing on the
Certificate Register at the relevant Record Date or Special Record Date or,
upon written application of a Holder of Certificates of any Class in the
Original Principal Amount of $1,000,000 or more to the Certificate Trustee
made at any time not later than such Record Date or Special 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 distribution in respect of any
Certificate shall be made only as provided in Section 9.01. The foregoing
notwithstanding, any distributions made to Cede & Co., as the nominee of the
initial Clearing Agency, shall be made by wire transfer of immediately
available funds.
Section 4.03. Statements to Certificateholders.
(a) On each Distribution Date, Special Distribution Date or any
other date specified herein for distribution of any payments with respect to
any Class of Certificates, or as soon as practicable following such
Distribution Date, Special Distribution Date or other date (unless the
Certificate Trustee is the Note Trustee and the statement required below is
provided by the Note Trustee no later than two Business Days prior to such
distribution), the Certificate Trustee will send, with respect to each
distribution, to Holders of Certificates of such Class a statement with
respect to such distribution to be made on such Distribution Date, Special
Distribution Date or other date, as the case may be, setting forth the
following information:
(i) the amount of such distribution to Holders of Certificates
allocable to (A) principal and (B) interest, in each case per $1,000
Original Principal Amount of each Class of Certificates;
(ii) the aggregate outstanding principal balance of the
Certificates, after giving effect to payments allocated to principal
reported under (i) above;
(iii) the difference, if any, between the amount specified in
(ii) above and the principal amount scheduled to be outstanding on such
date according to the Expected Amortization Schedule;
(iv) the balance of amounts on deposit in the Reserve Subaccount
after giving effect to payments or allocations made or to be made on the
related Payment Date;
(v) the balance of amounts on deposit in the Overcollateralization
Subaccount after giving effect to payments or allocations made or to be
made on the related Payment Date; and
(vi) the balance of amounts on deposit in the Capital Subaccount
after giving effect to payments or allocations made or to be made on the
related Payment Date.
In providing the foregoing statement, the Certificate Trustee may rely upon
the statements provided by the Note Trustee pursuant to Section 6.06 of the
Note Indenture. On each date on which the Certificate Trustee distributes
any such report to the Holders of the Certificates of any Class, the
Certificate Trustee shall also distribute such report to each Rating Agency.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Certificate Trustee shall furnish to each Person who at any time during such
calendar year was a Holder of any Class of Certificates and received a
distribution thereon, a statement containing the sum of the amounts
determined pursuant to clause (a)(i) above with respect to such Class of
Certificates for such calendar year, or, in the event such Person was a
Holder of such Class of Certificates during a portion of such calendar year,
for the applicable portion of such year, and such other items as are readily
available to the Certificate Trustee and that a Certificateholder shall
reasonably request as necessary for the purpose of such Certificateholder's
preparation of its federal income tax returns.
Section 4.04. Investment of Special Payment Moneys. Any money received
by the Certificate Trustee pursuant to Section 4.01(a) representing a Special
Payment that is not to be promptly distributed, to the extent practicable,
shall be invested in Eligible Investments at the written direction of the
Servicer by the Certificate Trustee pending distribution of such Special
Payment pursuant to Section 4.02. Any investment made pursuant to this
Section 4.04 shall be in such Eligible Investments maturing in not more than
60 days or such lesser time as is required for the distribution of any such
funds on a Special Distribution Date pending the distribution of such funds
to Certificateholders as described herein. The Certificate Trustee shall
hold any such Eligible Investments until maturity. Such Eligible Investments
shall not mature later than the Business Day immediately preceding the
Special Distribution Date relating to such invested funds. The Certificate
Trustee shall have no liability with respect to any investment made pursuant
to this Section 4.04 (including any losses on such investments), other than
by reason of the willful misconduct or negligence of the Certificate Trustee.
All income and earnings from such investments shall be distributed, if and as
received, on such Special Distribution Date as part of such Special Payment
and shall be treated as payments of interest on the Certificates.
If the rating of the Eligible Institution, which may be the Note
Trustee's Corporate Trust Office, fall below the rating requirements set
forth in clause (b)(i) of the definition of Eligible Institution, the
Delaware Trustee, on behalf of the Certificate Issuer, 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.
Section 4.05. Reduction in Principal. Any reduction in the principal
amount of any Certificate effected by any distribution in respect of
principal thereof shall be binding upon all Holders of such Certificate and
of any Certificate issued upon the registration or transfer thereof or in
lieu thereof, whether or not noted thereon.
ARTICLE V
Defaults
Section 5.01. Events of Default.
(a) If any Event of Default, other than a breach of the
Commonwealth Pledge by The Commonwealth of Massachusetts, shall occur and be
continuing, then, and in each and every case, the Certificate Trustee may,
and, upon the written direction of Holders representing not less than a
majority of the Outstanding Amount of the Certificates then Outstanding,
shall vote all the Notes in favor of declaring the unpaid principal amount of
all the Notes then outstanding and accrued interest thereon to be due and
payable in accordance with the provisions thereof. In addition, if a Note
Event of Default shall have occurred and be continuing, the Certificate
Trustee may, and, upon the written direction of Holders representing not less
than a majority of the Outstanding Amount of the Certificates then
Outstanding, shall vote all the Notes in favor of directing the Note Trustee
as to the time, method and place of conducting any proceeding for any remedy
available to the Note Trustee, including the sale of any or all of the Notes,
without recourse to or warranty by the Certificate Trustee or any
Certificateholder, to any person or entity, or of exercising any trust or
power conferred on the Note Trustee under the Note Indenture.
(b) In addition, after a Note Event of Default shall have occurred
and be continuing, subject to Section 5.01(c), the Certificate Trustee may,
and upon the written direction of Holders of Certificates representing not
less than a majority of the Outstanding Amount of Certificates, by such
officer or agent as it may appoint, shall sell, convey, transfer and deliver
any Note or Notes, without recourse to or warranty by the Certificate Trustee
or any Certificateholder, to any Person, all upon such terms and conditions
as the Certificateholders may reasonably deem advisable and at such prices as
the Certificateholders may reasonably deem advisable, for cash. If the
Certificate Trustee so decides or is required to sell or otherwise dispose of
the Notes pursuant to this Section, the Certificate Trustee may, but is not
obligated to, take such of the actions described above as it may reasonably
deem most effectual to complete the sale or other disposition of the Notes,
so as to provide for the payment in full of all amounts due on or in
connection with the Certificates.
(c) The foregoing provisions of Section 5.01(b) notwithstanding,
the Certificate Trustee shall not sell any Notes following the occurrence of
any Event of Default, other than a Note Event of Default described in Section
5.01(a), (b) or (c) of the Note Indenture, unless (i) the Certificate Trustee
determines that the amounts receivable from the Collateral are not sufficient
to pay in full the principal of and accrued interest on the Notes and all
amounts payable pursuant to clauses (i) through (iv) of Section 8.02(d) of
the Note Indenture and the Certificate Trustee obtains the written consent of
Holders of Certificates of each Class representing 66 2/3 percent of the
aggregate Outstanding Amount of the Certificates, or (ii) the Certificate
Trustee obtains the written consent of Holders of Certificates representing
100 percent of the aggregate Outstanding Amount of the Certificates.
Section 5.02. Incidents of Sale of Notes. Upon any sale of the Notes
made either under the power of sale given under this Certificate Indenture or
otherwise for the enforcement of this Certificate Indenture, the following
shall be applicable:
(a) Certificateholders and Certificate Trustee May Purchase Notes.
Any Certificateholder, the Certificate Trustee in its individual or any other
capacity or any other Person (other than the Seller) may bid for and purchase
any of the Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Notes in their own absolute right without
further accountability.
(b) Receipt of Certificate Trustee Shall Discharge Purchaser. The
receipt of the Certificate Trustee, on behalf of the Certificate Issuer,
shall be a sufficient discharge to any purchaser for its purchase money, and,
after paying such purchase money and receiving such receipt, such purchaser
or its personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any loss,
misapplication or nonapplication thereof.
(c) Application of Moneys Received upon Sale. Any moneys
collected by the Certificate Issuer or the Certificate Trustee upon any sale
made either under the power of sale given by this Certificate Indenture or
otherwise for the enforcement of this Certificate Indenture, shall be applied
as provided in Section 4.02.
Section 5.03. Judicial Proceedings Instituted by Certificate Trustee;
Certificate Trustee May Bring Suit.
(a) If there shall be a failure to make payment of the principal
of or interest on any Note, then the Certificate Trustee in its own name, and
as trustee of an express trust, as holder of such Note, if directed in
writing by the Holders of a majority of the Outstanding Amount of the
Certificates but subject to the provisions of Article VI, shall, to the
extent permitted by and in accordance with the terms of the Notes, be
entitled and empowered to institute any suits, actions or proceedings at law,
in equity or otherwise, including the power to make a demand on the Note
Trustee to take action under the Note Indenture to enforce the Notes, for the
collection of the sums so due and unpaid on the Note and may prosecute any
such claim or proceeding to judgment or final decree with respect to the
whole amount of any such sums so due and unpaid.
(b) If there shall be a breach of the Commonwealth Pledge by The
Commonwealth of Massachusetts, then the Certificate Trustee, in its own name
and as trustee of an express trust, as holder of the Notes, 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 Commonwealth 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.
Section 5.04. Control by Certificateholders. The Holders of a majority
of the Outstanding Amount of the Certificates (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 Certificate Trustee, or exercising any trust or power
conferred on the Certificate Trustee under this Certificate Indenture,
including any right of the Certificate Trustee as holder of the Notes of the
corresponding Class or Classes, in each case unless a different percentage is
specified herein; provided, however, that:
(a) such direction shall not be in conflict with any rule of law
or with this Certificate Indenture;
(b) the Certificate Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of Certificates of such
Class or Classes not taking part in such direction;
(c) the Certificate Trustee may take any other action deemed
proper by the Certificate Trustee that is not inconsistent with such
direction; and
(d) except as set forth in Section 5.01(a), such direction shall
not obligate the Certificate Trustee to vote more than a corresponding
majority of the related Notes held by the Certificate Issuer directing any
action by the Note Trustee;
provided, however, that the Certificate Trustee need not take any action that
it determines might involve it in liability.
Section 5.05. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.01, the
Holders of Certificates of not less than a majority of the Outstanding Amount
of the Certificates may in writing direct the Certificate Trustee to waive
any past default or Note Event of Default and its consequences except a
default (a) in payment of principal of or interest on any of the Notes,
(b) in respect of a covenant or provision under the Note Indenture that
cannot be modified or amended without the consent of the Holder of each Note
or all Classes of Notes affected or (c) in the deposit or distribution of any
Payment or Special Payment under Section 4.01 or in the distribution of any
payment under Section 4.02, which defaults may be waived by the Certificate
Trustee only upon the written direction of the Holders of each Certificate,
or each affected Class, as the case may be. Upon any such direction, the
Certificate Trustee shall vote such percentage of the Notes of the
corresponding Class held by the Certificate Trustee as corresponds to the
percentage of the aggregate Outstanding Amount of the Certificates of such
Class held by Holders who directed the Certificate Trustee to waive such
default or Note Event of Default hereunder.
Upon any waiver that is effective under the terms of the Note Indenture
to waive such Note Event of Default, such Note Event of Default shall cease
to exist with respect to this Certificate Indenture, and, in the case of a
default, any Note Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Certificate Indenture and any written
direction given by the Certificate Trustee on behalf of such
Certificateholders to the Note Trustee or in respect of any Notes shall be
annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Note Event of Default or impair any right
consequent thereon.
Section 5.06. Right of Certificateholders To Receive Payments Not To Be
Impaired. Anything in this Certificate Indenture to the contrary
notwithstanding, including Section 5.07 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.02 hereof on the Certificates when due, or to institute suit for
the enforcement of any such payment on or after the applicable Distribution
Date, Special Distribution Date or other date specified herein for the making
of such payment, shall not be impaired or affected without the consent of
such Certificateholder.
Section 5.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. Error! Bookmark not defined. A Certificateholder shall
not have the right to institute any suit, action or proceeding at law or in
equity or otherwise with respect to this Certificate Indenture, for the
appointment of a receiver or for the enforcement of any other remedy under
this Certificate Indenture, and each Holder agrees, by its acceptance of any
Certificate, 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:
(i) such Certificateholder has previously given written notice to
the Certificate Trustee of a continuing Note Event of Default with
respect to the Class of Certificates held by such Holder;
(ii) the Holders of not less than 25 percent of the Outstanding
Amount of the Certificates have made written request to the Certificate
Trustee to institute such action, suit or proceeding in respect of such
Note Event of Default in its own name as Certificate Trustee hereunder;
(iii) such Certificateholder or Certificateholders have offered
to the Certificate Trustee indemnity satisfactory to it against the
costs, expenses (including legal fees and expenses) and liabilities to
be incurred in complying with such request;
(iv) the Certificate Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
action, suit or proceedings; and
(v) no direction inconsistent with such written request has been
given to the Certificate Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Certificates;
it being understood and intended that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Certificate Indenture to affect, disturb or prejudice
the rights of any other Holders of Certificates or to obtain or to seek to
obtain priority or preference over any other Certificateholders or to enforce
any right under this Certificate Indenture, except in the manner herein
provided. The provisions of this Section 5.07 shall be deemed to modify, to
the fullest extent permitted by law, the rights of the Certificateholders
under Section 3816 of the Business Trust Statute.
(b) In the event the Certificate Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Certificates, each representing less than a majority of the Outstanding
Amount of the Certificates, the Certificate Trustee in its sole discretion
may determine what action, if any, shall be taken, notwithstanding any other
provisions of this Certificate Indenture.
Section 5.08. Remedies Cumulative. No remedy given hereunder to the
Certificate Trustee or to any of the Certificateholders shall be exclusive of
any other remedy or remedies, and every such remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter given
by statute, law, equity or otherwise.
ARTICLE VI
The Certificate Trustee
Section 6.01. Notice of Defaults. As promptly as practicable after,
and in any event within 30 days after, receipt by a Responsible Officer of
the Certificate Trustee of written notice or actual knowledge of the
occurrence of any default (as such term is defined below) hereunder, the
Certificate Trustee shall transmit by mail to the Certificate Issuer, the
Note Trustee and the Holders of Certificates in accordance with
Section 313(c) of the Trust Indenture Act, notice of such default, unless
such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event that is, or after notice or lapse
of time or both would become, a Note Event of Default with respect to such
Class of Certificates.
Section 6.02. Certain Rights of Certificate Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Certificate Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in reliance upon any
resolution, certificate, 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;
(b) any request or direction of the Certificate Issuer mentioned
herein shall be sufficiently evidenced by a Request, accompanied by evidence
reasonably satisfactory to the Certificate Trustee that the Note Issuer has
given its prior written approval of such request or direction;
(c) whenever in the administration of this Certificate Indenture
the Certificate Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Certificate 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 Certificate Issuer;
(d) the Certificate 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 Certificate Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Certificate
Indenture at the request or direction of any of the Certificateholders
pursuant to this Certificate Indenture, unless such Certificateholders shall
have offered to the Certificate 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 Certificate Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(g) the Certificate 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 Certificate 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 Certificate 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 Certificates relating to the time,
method and place of conducting any proceeding for any remedy available to the
Certificate Trustee, or exercising any trust or power conferred upon the
Certificate Trustee, under this Certificate Indenture;
(i) the Certificate 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 Certificate 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 Certificate Indenture; provided, however,
that the Certificate Trustee's conduct does not constitute willful
misconduct, negligence or bad faith;
(k) in the event that the Certificate Trustee is also acting as
Paying Agent, Authenticating Agent or Certificate Registrar hereunder, the
rights and protections afforded to the Certificate Trustee pursuant to this
Article VI shall also be afforded to such Paying Agent, Authenticating Agent
or Certificate Registrar;
(l) the Certificate Trustee shall not be charged with knowledge of
an Event of Default unless a Responsible Officer obtains actual knowledge of
such event or the Certificate Trustee receives written notice of such event
from the Certificate Issuer, the Note Trustee, the Servicer or a majority of
the Holders of Certificates of the Class or Classes so affected; and
(m) without limiting its rights under bankruptcy law, when the
Certificate 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. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates, except the execution
thereof and the certificates of authentication, shall not be taken as the
statements of the Certificate Trustee, and the Certificate Trustee assumes no
responsibility for their correctness. Except as set forth in Section 6.14,
the Certificate Trustee makes no representations as to the validity or
sufficiency of this Certificate Indenture, the Notes, any Basic Document or
the Certificates.
Section 6.04. May Hold Certificates. The Certificate Trustee, any
Paying Agent, any Certificate Registrar or any of their Affiliates or any
other agent, in their respective individual or any other capacity, may become
the owner or pledgee of Certificates and, subject to Sections 310(b) and 311
of the Trust Indenture Act, may otherwise deal with the Certificate Issuer,
the Note Issuer or the Note Trustee with the same rights it would have if it
were not Certificate Trustee, Paying Agent, Certificate Registrar or such
other agent.
Section 6.05. Money Held in Trust. Money held by the Certificate
Trustee or the Paying Agent in trust hereunder need not be segregated from
other funds except to the extent required herein or by law and neither the
Certificate Trustee nor the Paying Agent shall have any liability for
interest upon any such moneys except as provided for herein.
Section 6.06. Compensation and Reimbursement; Indemnification.
(a) Pursuant to the Fee and Indemnity Agreement, the Note Issuer
has agreed to pay, or cause to be paid, to the Certificate Trustee from time
to time reasonable compensation for its services and to reimburse it for its
reasonable expenses.
(b) Pursuant to the Fee and Indemnity Agreement, the Note Issuer
shall indemnify, defend and hold harmless the Certificate Trustee and any of
the affiliates, officials, officers, directors, employees, consultants,
counsel and agents of the Certificate Trustee (the "Certificate Trustee
Indemnified Persons") from and against any and all losses, claims, actions,
suits, taxes, damages, expenses and liabilities (including liabilities under
state or federal securities laws) of any kind and nature whatsoever
(collectively, "Certificate Trustee Expenses"), to the extent that such
Certificate Trustee Expenses arise out of or are imposed upon or asserted
against such Certificate Trustee Indemnified Persons with respect to the
creation, operation or termination of the Certificate Issuer, the execution,
delivery, enforcement or performance of the Declaration of Trust or this
Certificate Indenture, as the case may be, or the transactions contemplated
hereby, the failure of the Note Issuer or any other Person (other than the
Person being indemnified) to perform its obligations under the Fee and
Indemnity Agreement or under any of the Basic Documents, or otherwise in
connection with the Basic Documents or the transactions contemplated thereby;
provided, however, that the Note Issuer shall not be required to indemnify
any Certificate Trustee Indemnified Person for any Certificate Trustee
Expenses that result from the willful misconduct or gross negligence of such
Certificate Trustee Indemnified Person and provided, further, that any
Certificate Trustee Expenses payable to any Certificate Trustee Indemnified
Person hereunder shall be paid to the Note Trustee for deposit into and
distribution from the Collection Account in accordance with Article VIII of
the Note Indenture (except to the extent that the Fee and Indemnity Agreement
requires payment to be made directly to such Indemnified Person and payment
is or has been so made). The Note Issuer shall not be required to indemnify
any Certificate Trustee Indemnified Person for any amount paid or payable by
such Certificate Trustee Indemnified Person pursuant to this Section 6.06(b)
in the settlement of any action, proceeding or investigation without the
written consent of the Note Issuer, which consent shall not be unreasonably
withheld. Promptly after receipt by a Certificate Trustee Indemnified Person
of notice of its involvement in any action, proceeding or investigation, such
Certificate Trustee Indemnified Person shall, if a claim for indemnification
in respect thereof is to be made against the Note Issuer under this Section
6.06(b), notify the Note Issuer in writing of such involvement. Failure by a
Certificate Trustee Indemnified Person to so notify the Note Issuer shall
relieve the Note Issuer from the obligation to indemnify and hold harmless
such Certificate Trustee Indemnified Person under this Section 6.06(b) only
to the extent that the Note 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 6.06(b), the Note Issuer shall be entitled to assume the defense of
any such action, proceeding or investigation. Upon assumption by the Note
Issuer of the defense of any such action, proceeding or investigation, the
Certificate Trustee Indemnified Person shall have the right to participate in
such action or proceeding and to retain its own counsel. The Note Issuer
shall be entitled to appoint counsel of the Note Issuer's choice at the Note
Issuer's expense to represent the Certificate Trustee Indemnified Person in
any action, proceeding or investigation for which a claim of indemnification
is made against the Note Issuer under this Section 6.06(b) (in which case the
Note Issuer shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the Certificate Trustee Indemnified Person
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the Certificate Trustee Indemnified Person.
Notwithstanding the Note Issuer's election to appoint counsel to represent
the Certificate Trustee Indemnified Person in an action, proceeding or
investigation, the Certificate Trustee Indemnified Person shall have the
right to employ separate counsel (including local counsel), and the Note
Issuer shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the Note Issuer to represent the
Certificate Trustee 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 Certificate Trustee Indemnified Person
and the Note Issuer and the Certificate Trustee 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 Note Issuer, (iii)
the Note Issuer shall not have employed counsel reasonably satisfactory to
the Certificate Trustee Indemnified Person to represent the Certificate
Trustee Indemnified Person within a reasonable time after notice of the
institution of such action or (iv) the Note Issuer shall authorize the
Certificate Trustee Indemnified Person to employ separate counsel at the
expense of the Note Issuer. Notwithstanding the foregoing, the Note Issuer
shall not be obligated to pay for the fees, costs and expenses of more than
one separate counsel for the Certificate Trustee Indemnified Persons (in
addition to local counsel). The Note Issuer will not, without the prior
written consent of the Certificate Trustee 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 6.06(b) (whether or not the
Certificate Trustee 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 Certificate Trustee Indemnified Person from
all liability arising out of such claim, action, suit or proceeding.
Indemnification under this Section 6.06(b) shall include reasonable fees and
out-of-pocket expenses of investigation and litigation (including reasonable
attorney's fees and expenses), except as otherwise provided in this
Certificate Indenture. The obligations of the Note Issuer to indemnify the
Certificate Trustee Indemnified Persons shall survive the termination of the
Fee and Indemnity Agreement, this Certificate Indenture and the resignation
or removal of the Certificate Trustee.
Notwithstanding anything to the contrary in this Certificate Indenture,
the Certificate Trustee shall have no recourse against the Certificate Issuer
or the Notes or payments thereon or proceeds thereof for payment of any
amounts required to be paid to the Certificate Trustee under this
Section 6.06(b).
Section 6.07. Corporate Certificate Trustee Required; Eligibility.
(a) The Certificate Trustee shall at all times be eligible to act
as a trustee under Section 310(a) of the Trust Indenture Act, 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 ▇▇▇▇▇'▇ 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 6.07, 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.
(b) In determining whether the Certificate Trustee has a
conflicting interest under Section 310(b) of the Trust Indenture Act and this
Section, each other Class of Certificates will be treated as having been
issued under an indenture other than this Certificate Indenture.
(c) If at any time the Certificate Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.07, the
Certificate Trustee shall resign immediately in the manner and with the
effect specified in Section 6.08.
Section 6.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Certificate Trustee and no
appointment of a successor Certificate Trustee pursuant to this Article shall
become effective (i) until the acceptance of appointment by the successor
Certificate Trustee under Section 6.09 and (ii) other than in the case of
paragraph (b) below, unless a successor Certificate Trustee has been
appointed and has accepted such appointment and the Rating Agency Condition
shall have been satisfied.
(b) The Certificate Trustee may resign at any time in the case of
a conflicting interest as determined in accordance with Section 6.07(b) by
giving written notice thereof to the Certificate Issuer, the Authorized
Agents, the Note Issuer and the Note Trustee. If an instrument of acceptance
by a successor Certificate Trustee shall not have been delivered to the
Certificate Issuer and the Certificate Trustee within 30 days after the
giving of such notice of resignation, the resigning Certificate Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Certificate Trustee.
(c) The Certificate Trustee may be removed at any time in the case
of a conflicting interest as determined in accordance with Section 6.07(b) by
Act of Certificateholders holding Certificates representing not less than 51
percent of the Outstanding Amount of the Certificates delivered to the
Certificate Trustee and to the Certificate Issuer, the Note Issuer and the
Note Trustee.
(d) Upon 30 days' written notice, the Certificate Trustee (i) may
resign with respect to the Certificates as a whole by giving such written
notice to the Certificate Issuer, the Authorized Agents, the Note Issuer and
the Note Trustee or (ii) may be removed with respect to the Certificates as a
whole by Act of Certificateholders holding Certificates representing not less
than a majority of the Outstanding Amount of Certificates delivered to the
Certificate Issuer, the Note Issuer and the Note Trustee. If an instrument
of acceptance by a successor Certificate Trustee with respect to the
Certificates as a whole shall not have been delivered to the Certificate
Issuer, the Note Issuer and the Note Trustee within 90 days after the giving
of such notice of resignation or Act by the Certificateholders as a whole for
removal of the Certificate Trustee, the Certificate Issuer or the Note Issuer
may petition any court of competent jurisdiction for the appointment of a
successor Certificate Trustee with respect to the Certificates as a whole.
(e) If at any time:
(i) the Certificate Trustee shall fail to comply with Section 310
of the Trust Indenture Act after written request therefor by the
Certificate Issuer or by the Note Issuer or by any Holder of
Certificates who has been a bona fide Holder of Certificates for at
least six months; or
(ii) the Certificate Trustee shall cease to be eligible under
Section 6.07 and shall fail to resign after written request therefor by
the Certificate Issuer or by the Note Issuer or by any
Certificateholder; or
(iii) the Certificate Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Certificate Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Certificate Trustee or of
its property or affairs for the purpose of rehabilitation, conservation
or liquidation; or
(iv) the Certificate 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 Certificate Issuer,
the Note Trustee or any Certificateholder;
then, in any case, (x) the Certificate Issuer or the Note Issuer may remove
the Certificate Trustee or (y) any Holder of Certificates who has been a bona
fide Holder of Certificates 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 Certificate Trustee and the appointment
of a successor Certificate Trustee.
(f) If a Responsible Officer of the Certificate Trustee shall have
received written notice of an Avoidable Tax that has been or is likely to be
asserted, the Certificate Trustee shall promptly notify the Certificate
Issuer and the Note Issuer thereof and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the
Certificate Trustee shall have received notice that either the Certificate
Issuer or the Note Issuer has agreed to pay such tax. In such event, the
Certificate Issuer (with the prior written approval of the Note Issuer) shall
promptly appoint a successor Certificate Trustee in a jurisdiction where
there are no Avoidable Taxes. As used herein, an "Avoidable Tax" means a
state or local tax: (i) upon (w) the Certificate Issuer, (x) the Trust
Property, (y) the Certificateholders or (z) the Certificate Trustee for which
the Certificate Trustee is entitled to seek reimbursement from the Trust
Property, and (ii) that would be avoided if the Certificate Trustee were
located in another state, or jurisdiction within a state, within the United
States. A tax shall not be an Avoidable Tax if either the Certificate Issuer
or the Note Issuer shall agree to pay, and shall pay, such tax.
(g) If the Certificate Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Certificate Trustee for any reason, the Certificate Issuer (with the prior
written approval of the Note Issuer and the Agencies) shall promptly appoint
a successor Certificate Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Certificate Trustee shall be appointed by Act of the Certificateholders
representing not less than a majority of the Outstanding Amount of the
Certificates delivered to the Certificate Issuer, the Note Trustee and the
retiring Certificate Trustee, the successor Certificate Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
successor Certificate Trustee and supersede the successor Certificate Trustee
appointed as provided above. If no successor Certificate Trustee shall have
been so appointed as provided above and accepted appointment in the manner
hereinafter provided, any Holder of Certificates who has been a bona fide
Holder of Certificates 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 Certificate Trustee.
(h) The successor Certificate Trustee shall give notice of the
resignation and removal of the Certificate Trustee and appointment of the
successor Certificate 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 Certificate Register and to each Rating Agency, the
Note Issuer, the Certificate Issuer and the Agencies. Each notice shall
include the name of such successor Certificate Trustee and the address of the
corporate trust office of such successor Certificate Trustee.
(i) The Certificate Issuer shall notify the Rating Agencies and
the Agencies of any resignation and removal of the Certificate Trustee and
appointment of a successor Certificate Trustee under this Section 6.08.
Section 6.09. Acceptance of Appointment by Successor. Every successor
Certificate Trustee appointed hereunder shall execute, acknowledge and
deliver to the Certificate Issuer and to the retiring Certificate Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Certificate Trustee shall become effective and such
successor Certificate Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Certificate Trustee; but, on request of the Certificate Issuer or
the successor Certificate Trustee, such retiring Certificate Trustee shall
execute and deliver an instrument transferring to such successor Certificate
Trustee all the rights, powers and trusts of the retiring Certificate Trustee
and shall duly assign, transfer and deliver to such successor Certificate
Trustee all property and money held by such retiring Certificate Trustee
hereunder. Upon request of any such successor Certificate Trustee, the
Certificate Issuer, the retiring Certificate Trustee and such successor
Certificate 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
Certificate Trustee all such rights, powers and trusts. No Certificate
Trustee hereunder shall be liable for the acts or omissions of any successor
Certificate Trustee.
No successor Certificate Trustee shall accept its appointment unless at
the time of such acceptance such successor Certificate Trustee shall be
qualified and eligible under this Article and any and all amounts due and
payable to the predecessor Certificate Trustee have been paid.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Certificate 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
Certificate Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Certificate Trustee,
shall be the successor of the Certificate 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 Certificates shall have been
authenticated, but not delivered, by the Certificate Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Certificate Trustee may adopt such authentication and deliver the
Certificates so authenticated with the same effect as if such successor
Certificate Trustee had itself authenticated such Certificates.
Section 6.11. Maintenance of Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where Certificates may
be presented or surrendered for registration of transfer or for exchange, and
for payment thereof and where notices and demands to or upon the Certificate
Trustee on behalf of the Certificate Issuer in respect of the Certificates or
of this Certificate Indenture may be served. At no time shall there be any
other such office or agency outside the United States. Such office or agency
shall be initially at the Corporate Trust Office. Written notice of any
change of location thereof shall be given by the Certificate Trustee to the
Certificate Issuer, the Note Trustee, the Note Issuer, the
Certificateholders, the Agencies and the Rating Agencies. In the event that
no such office or agency shall be maintained or no such notice of location or
of change of location shall be given, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Certificate
Trustee.
(b) There shall at all times be a Certificate Registrar, an
Authentication Agent and a Paying Agent hereunder. Each such Authorized
Agent shall be a bank or trust company, shall be a entity organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $50,000,000, shall have a long-term debt
rating of at least A by ▇▇▇▇▇'▇ and by Standard & Poor's, shall be authorized
under such laws to exercise corporate trust powers and shall be subject to
supervision by federal or state authorities. The Certificate Trustee shall
initially be the Paying Agent, Authentication Agent, and, as provided in
Section 2.06, Certificate Registrar hereunder. Each Certificate Registrar,
if other than the Certificate Trustee, shall furnish to the Certificate
Trustee, at stated intervals of not more than six months, and at such other
times as the Certificate Trustee may request in writing, a copy of the
Certificate Register.
(c) Any corporation into which any Authorized Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authorized Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authorized Agent, shall be the successor of
such Authorized Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authorized Agent or
such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Certificate Trustee, the Certificate Issuer, the
Note Issuer and the Note Trustee. The Certificate Issuer (with the prior
written approval of the Note Issuer) may, and at the request of the
Certificate Trustee shall, at any time terminate the agency of any Authorized
Agent by giving written notice of termination to such Authorized Agent, the
Note Trustee, the Note Issuer and the Certificate Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed by the Certificate Trustee), the
Certificate Issuer (with the prior written approval of the Note Issuer) shall
promptly appoint one or more qualified successor Authorized Agents,
reasonably satisfactory to the Certificate Trustee, to perform the functions
of the Authorized Agent who has resigned or whose agency has been terminated
or who shall have ceased to be eligible under this Section. The Certificate
Issuer shall give written notice of any such appointment made by it to the
Certificate Trustee, the Note Issuer and the Note Trustee; and in each case
the Certificate Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Certificate
Register.
(e) Pursuant to the Fee and Indemnity Agreement, the Note Issuer
has agreed to pay, or cause to be paid, from time to time to each Authorized
Agent reasonable compensation for its services and to reimburse it for its
reasonable expenses; provided, however, that the Note Issuer shall have given
prior consent to the appointment of such Authorized Agent pursuant to the Fee
and Indemnity Agreement, and no Authorized Agent shall have any recourse
against the Certificate Issuer or the Trust Property for payment of such
amounts.
Section 6.12. Money for Certificate Payments To Be Held in Trust.
(a) All moneys deposited with any Paying Agent for the purpose of
any payment on Certificates of any Class shall be deposited and held in trust
for the benefit of the Certificateholders of such Class entitled to such
payment, subject to the provisions of this Section. Moneys so deposited and
held in trust shall constitute a separate trust fund for the benefit of the
Class of Certificateholders with respect to which such money was deposited.
The Certificate Trustee may at any time, for the purpose of obtaining
the satisfaction and discharge of this Certificate Indenture or for any other
purpose, direct any Paying Agent to pay to the Certificate Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Certificate
Trustee upon the same trusts as those upon which such sums were held by such
Paying Agent; and, upon such payment by any Paying Agent to the Certificate
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(b) The Certificate Trustee will cause each Paying Agent other
than the Certificate Trustee to execute and deliver to the Certificate
Trustee an instrument in which such Paying Agent shall agree with the
Certificate Trustee (and, if the Certificate Trustee acts as Paying Agent, it
hereby so agrees), subject to the provisions of this Section, that such
Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates 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;
(ii) give the Certificate Trustee notice of any default under this
Certificate Indenture of which it has actual knowledge in the making of
any payment required to be made by the Certificate Issuer (or any other
obligor on the Certificates) with respect to the Certificates;
(iii) at any time during the continuance of such default, upon
the written request of the Certificate Trustee, forthwith pay to the
Certificate Trustee all sums held by it in trust for the payment of the
Certificates 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
(iv) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
Section 6.13. Registration of Notes and Eligible Investments in
Certificate Trustee's Name. The Certificate Trustee agrees that all Notes
and Eligible Investments, if any, shall be issued in the name of the
Certificate Trustee or its nominee, on behalf of the Certificate Issuer, and
held by the Certificate Trustee, or, if not so held, the Certificate Trustee
or its nominee, on behalf of the Certificate Issuer, shall be reflected as
the owner of such Notes or Eligible Investments, as the case may be, in the
register of the issuer of such Notes or Eligible Investments. In no event
shall the Certificate Trustee invest in, or hold, Notes or Eligible
Investments in a manner that would cause the Certificate Trustee not to have
the ownership interest in such Notes or Eligible Investments under the
applicable provisions of the Uniform Commercial Code in effect in the
location where the Certificate Trustee holds such Notes or Eligible
Investments or other applicable law then in effect. The Certificate Trustee
shall at all times maintain possession of the Notes in the State of New York.
Section 6.14. Representations and Warranties of Certificate Trustee.
The Certificate Trustee hereby represents and warrants that:
(a) the Certificate Trustee is validly existing as a state banking
institution in good standing under the laws of the State of New York;
(b) the Certificate Trustee has full power (including trust
powers), authority and legal right to execute, deliver and perform this
Certificate Indenture and the Basic Documents to which the Certificate
Trustee is a party and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Certificate Indenture and
such Basic Documents; and
(c) when delivered by the Certificate Trustee, the Certificates
will have been duly executed by the Delaware Trustee on behalf of the
Certificate Issuer and duly authenticated by the Certificate Trustee.
Section 6.15. Withholding Taxes; Information Reporting. The
Certificate Trustee, as trustee for the assets of a grantor trust, shall
exclude and withhold from each distribution of principal and interest and
other amounts due hereunder or under the Certificates any and all withholding
taxes applicable thereto as required by law. The Certificate Trustee agrees
that it will act as such withholding agent and, in connection therewith,
whenever any present or future taxes or similar charges are required to be
withheld with respect to any amounts payable in respect of the Certificates,
to withhold such amounts and timely pay the same to the appropriate authority
in the name of and on behalf of the Certificateholders, that it will file any
necessary withholding tax returns or statements when due, and that, as
promptly as possible after the payment thereof, it will deliver to each
Certificateholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such Certificateholders
may reasonably request from time to time. The Certificate Trustee agrees to
file any other information reports as it may be required to file with respect
to taxes. For purposes of reporting on Internal Revenue Service Form 1041
(and any statement attached thereto) or any successor form thereto, the
Certificate Trustee will separately set forth information reported with
respect to each Class of Certificates.
ARTICLE VII
Supplemental Certificate Indentures
Section 7.01. Supplemental Certificate Indentures Without Consent of
Certificateholders. Without the consent of Certificateholders, the
Certificate Issuer (with the prior written approval of the Note Issuer) may,
and the Certificate Trustee (subject to Section 7.03) shall, at any time and
from time to time enter into one or more indentures supplemental hereto, in
form satisfactory to the Certificate Trustee, for any of the following
purposes:
(a) to add to the covenants of the Certificate Issuer for the
benefit of the Certificateholders, or to surrender any right or power herein
conferred upon the Certificate Issuer;
(b) to correct or supplement any provision herein or in any
supplemental certificate indenture that may be defective or inconsistent with
any other provision herein or in any supplemental certificate indenture or to
make any other provisions with respect to matters or questions arising under
this Certificate Indenture; provided, however, that any such action shall not
adversely affect in any material respect the interests of the
Certificateholders;
(c) to cure any ambiguity or correct any mistake; or
(d) to qualify, if necessary, this Certificate Indenture
(including any supplemental certificate indenture) under the Trust Indenture
Act, or under any similar federal statute hereafter enacted, and to add to
this Certificate Indenture such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted.
Section 7.02. Supplemental Certificate Indentures With Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates representing not less than a majority of the aggregate
Outstanding Amount of Certificates of each Class affected thereby, by Act of
said Certificateholders delivered to the Certificate Issuer, the Note Trustee
and the Certificate Trustee, the Certificate Issuer (with the prior written
approval of the Note Issuer) may, and the Certificate Trustee (subject to
Section 7.03) shall, 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 Certificate Indenture or of
modifying in any manner the rights and obligations of the Holders of
Certificates of each such Class under this Certificate Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Certificateholder of each Outstanding Certificate affected thereby:
(a) reduce in any manner the amount of, or delay the timing of,
any receipt by the Certificate Trustee of payments on the Notes or
distributions that are required to be made herein on any Certificate, or
change any date of payment on any Certificate, or change the place of payment
where, or the coin or currency in which, any Certificate is payable, or
impair the right to institute suit for the enforcement of any such payment or
distribution on or after the Distribution Date, Special Distribution Date or
other date specified herein applicable thereto;
(b) permit the disposition of any Note in the Trust Property
except as permitted by this Certificate Indenture, or otherwise deprive any
Holder of Certificates of any Class of the benefit of the ownership of the
Notes of the corresponding Class in the Trust;
(c) reduce the percentage of the aggregate Outstanding Amount of
the Certificates of any Class that is required for any such supplemental
indenture, or reduce such percentage required for any waiver or consent (of
compliance with certain provisions of this Certificate Indenture or certain
defaults hereunder and their consequences) provided for in this Certificate
Indenture;
(d) modify any of the provisions of this Section, except to
increase any percentage set forth herein or to provide that certain other
provisions of this Certificate Indenture cannot be modified or waived without
the consent of the Holder of each Certificate affected thereby; or
(e) adversely affect the status of the Trust as a grantor trust
for federal income tax purposes.
It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental
certificate indenture, but it shall be sufficient if such Act shall approve
the substance thereof. The Certificate Issuer shall give each Rating Agency
five Business Days prior written notice of any such proposed supplemental
certificate indenture. Promptly after the execution by the Certificate
Issuer and the Certificate Trustee of any supplemental certificate indenture
pursuant to this Section, the Certificate Trustee shall mail to the Holders
of the Certificates to which such supplemental certificate indenture relates
a notice setting forth in general terms the substance of such supplemental
certificate indenture. Any failure of the Certificate Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental certificate indenture.
Section 7.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Certificate Trustee any document required to be executed by it
pursuant to the terms of Section 7.01 or 7.02 adversely affects any interest,
right, duty, immunity or indemnity in favor of the Certificate Trustee under
this Certificate Indenture, the Certificate Trustee may in its discretion
decline to execute such document.
Section 7.04. Execution of Supplemental Certificate Indentures. In
executing, or accepting the additional trusts created by, any supplemental
certificate indenture permitted by this Article or the modifications thereby
of the trusts created by this Certificate Indenture, the Certificate Trustee
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental
certificate indenture is authorized or permitted by this Certificate
Indenture.
Section 7.05. Effect of Supplemental Certificate Indentures. Upon the
execution of any supplemental certificate indenture under this Article, this
Certificate Indenture shall be modified in accordance therewith, and such
supplemental certificate indenture shall form a part of this Certificate
Indenture for all purposes; and every Holder of any Certificate theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 7.06. Conformity with Trust Indenture Act. Every supplemental
certificate indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect so long as this
Certificate Indenture shall then be qualified under the Trust Indenture Act.
Section 7.07. Reference in Certificates to Supplemental Certificate
Indentures. Certificates authenticated and delivered after the execution of
any supplemental certificate indenture pursuant to this Article may bear a
notation in form approved by the Certificate Trustee as to any matter
provided for in such supplemental certificate indenture; and, in such case,
suitable notation may be made upon Outstanding Certificates after proper
presentation and demand.
Section 7.08. Delaware Trustee. To the extent that the Delaware Trustee
is required to enter into any supplemental certificate indenture, the
Delaware Trustee shall have the same rights and privileges afforded the
Certificate Trustee.
ARTICLE VIII
Amendments and Supplements to Notes, Note Indenture
and Other Basic Documents
Section 8.01. Amendments and Supplements to Notes, Note Indenture and
Other Basic Documents. In the event that the Certificate Issuer or the
Certificate Trustee, as holder of the Notes of each Class in trust for the
benefit of the Holders of Certificates of the corresponding Class, receives a
request for a consent to any amendment, modification, waiver or supplement
under the Notes, the Note Indenture or any other Basic Document (other than
this Certificate Indenture) to which the Certificate Issuer or the
Certificate Trustee is a party and which in any such case requires the
consent of the Noteholders, the Certificate Issuer shall forward such request
for consent to the Certificate Trustee, and the Certificate Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement, to each Holder of Certificates of such Class registered on the
Certificate Register as of such date. The Certificate Trustee shall request
from such Certificateholders directions with respect to each such required
Noteholder consent as to (a) whether or not the Certificate Trustee should
take or refrain from taking any action that a holder of such Note has the
option to direct, (b) whether or not to give or execute or direct the
Certificate Issuer to give or execute any waivers, consents, amendments,
modifications or supplements as a holder of such Note and (c) how to vote
such Note if a vote has been called for with respect thereto; provided,
however, in the case of any change to the terms of, or modification to, the
Notes which requires the consent of the Noteholders, the Certificateholders
may not direct any such action to be taken or direct whether or not to give
or execute any such waiver, consent, amendment, modification or supplement
that is not pursuant to the original terms of the Notes, unless the
Certificate Trustee obtains an Opinion of Counsel at the expense of the
Certificate Issuer of independent tax counsel to the effect that after any
such action, waiver, consent, amendment, modification or supplement the Trust
will continue to be treated as a "grantor trust" for federal income tax
purposes. Provided such a request for Certificateholder direction shall have
been made, in directing any action or casting any vote or giving any consent
as the holder of the Notes, the Certificate Trustee shall vote or consent
with respect to such Notes in the same proportion as the Certificates of the
corresponding Class were actually voted by Acts of the Holders thereof
delivered to the Certificate Trustee prior to two Business Days before the
Certificate Trustee takes such action or casts such vote or gives such
consent.
ARTICLE IX
Satisfaction and Discharge
Section 9.01. Satisfaction and Discharge of Certificate Indenture.
This Certificate Indenture shall cease to be of further effect with respect
to the Certificates, and the Certificate Trustee, on reasonable demand of and
at the expense of the Certificate Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Certificate Indenture with
respect to the Certificates, upon the distribution to all Holders of
Certificates and the Certificate Trustee of all amounts required to be
distributed to them pursuant to this Certificate Indenture and the
disposition of all property held as part of the Trust Property. The
Certificate Issuer shall pay or provide for the payment of all remaining
liabilities of the Certificate Trustee, but solely from amounts payable by
the Note Issuer under the Fee and Indemnity Agreement.
Notice of any distribution pursuant to the paragraph above shall be
mailed promptly by the Certificate Trustee to Holders of Certificates then
outstanding. Such notice shall specify the Distribution Date or Special
Distribution Date, as the case may be, upon which the Holders of Certificates
may surrender their Certificates to the Certificate Trustee for payment of
the final distribution and cancellation. Such notice shall be mailed (a) if
with respect to a final distribution, as soon as practicable following
receipt of notice from the Note Trustee of a final payment on a corresponding
Note, (b) if with respect to a Special Payment other than a Special Payment
constituting a redemption, not earlier than the 60th day and not later than
the 20th day next preceding such final distribution or (c) if with respect to
a Special Payment constituting a redemption of Certificates resulting from a
redemption of Notes, then in accordance with the provisions of the relevant
Section of Article IV hereof. Such notice shall specify (a) the Distribution
Date or Special Distribution Date, as the case may be, upon which the
proposed final payment of the Certificates will be made upon presentation and
surrender of such Certificates at the office or agency of the Certificate
Trustee therein specified, (b) the amount of any such proposed final payment
and (c) that the Record Date otherwise applicable to such Distribution Date
or the Special Record Date otherwise applicable to such Special Distribution
Date, as the case may be, is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Certificate Trustee therein specified. The Certificate Trustee shall give
such notice to the Certificate Registrar at the time such notice is given to
Holders of Certificates. Upon presentation and surrender of such
Certificates, the Certificate Trustee shall cause to be distributed to the
Holders thereof amounts distributable thereon on such Distribution Date or
Special Distribution Date, as the case may be, pursuant to Section 4.02.
In the event that all of the Holders of Certificates shall not surrender
their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Certificate Trustee
shall give a second written notice to the remaining Holders of such
Certificates to surrender their Certificates for cancellation and receive the
final distribution with respect thereto. In the event that any money held by
the Certificate Trustee for the payment of distributions on the Certificates
shall remain unclaimed for two years (or such lesser time as the Certificate
Trustee shall be satisfied, after 60 days' notice from the Certificate Issuer
(with the prior written approval of the Note Issuer), is one month prior to
the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Certificate Trustee shall pay
such money to the Note Trustee for deposit into the collection account
relating to the related Notes or, if such collection account no longer
exists, to the Note Issuer and the Certificate Trustee or Note Issuer shall
give written notice thereof to the Note Trustee, the Note Issuer and the
Certificate Issuer.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Commonwealth Pledge; Certificates and Notes Not
Obligations of The Commonwealth of Massachusetts, Agencies or Seller.
(a) The Certificate Issuer hereby finds and determines, and hereby
represents and warrants, that it constitutes a "special purpose trust" and a
"financing entity" under Section 1H(a) of Chapter 164 of the Massachusetts
General Laws, and that the Certificates constitute "electric rate reduction
bonds" under Section 1H(a) of Chapter 164 of the Massachusetts General Laws
and that the Holders of the Certificates are entitled to the rights and
benefits thereunder. Pursuant to Section 1H(b)(3) of Chapter 164 of the
Massachusetts General Laws, The Commonwealth of Massachusetts pledges and
agrees with the Note Issuer and the Holders of the Certificates (the
"Commonwealth Pledge") as follows:
[T]he [C]ommonwealth [of Massachusetts] does hereby pledge and
agree with the owners of the transition property and holders
of electric rate reduction bonds that the [C]ommonwealth [of
Massachusetts] shall not (i) alter the provisions of this
chapter which make the transition charges imposed by the
financing order irrevocable and binding or (ii) limit or alter
the reimbursable transition costs amounts, transition
property, financing orders, and all rights thereunder until
the electric rate reduction bonds, together with the interest
thereon, are fully met and discharged.
Further, the Certificate Issuer does hereby pledge and agree with the
Note Issuer and the Holders of the Certificates that it will not act in a
manner inconsistent with the Commonwealth Pledge and will not take any action
that would impair any rights of the Note Issuer or the Holders of the
Certificates or the Notes, the Transition Property or the Certificates. The
Certificate Issuer hereby further agrees to treat the Notes as debt of the
Note Issuer, secured by, among other things, the Transition Property and the
equity of the Note Issuer on deposit in the Capital Subaccount, for all
purposes.
(b) Each Certificate represents a fractional undivided beneficial
interest in a corresponding Class of Notes and the proceeds thereof. The
Certificates and the Notes do not represent an interest in or obligation of
The Commonwealth of Massachusetts, the Agencies, any other governmental
agency or instrumentality or the Seller or any of its affiliates, except that
the Notes are obligations of WMECO Funding LLC, which is an affiliate of
WMECO. None of the Certificates, the Notes or the underlying Transition
Property will be guaranteed or insured by The Commonwealth of Massachusetts,
the Agencies, the Certificate Issuer 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
Commonwealth of Massachusetts, the Agencies or any other governmental agency
or instrumentality is pledged to the payment of the principal of, or interest
on, the Certificates or the Notes, or to the payments in respect or in
repurchase of the Transition Property, nor are The Commonwealth of
Massachusetts, the Agencies or any other governmental agency or
instrumentality in any manner obligated to make any appropriation for the
payment thereof.
Section 10.02. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Certificate Indenture, the Declaration of Trust or the Certificate Issuer,
nor entitle such Certificateholder's legal representatives or heirs to claim
an accounting or to take any action or commence any proceeding in any court
for a partition or winding up of the Certificate Issuer, nor otherwise affect
the rights, obligations, and liabilities of the parties hereto or any of
them.
Section 10.03. No Recourse to Certificate Issuer. Notwithstanding any
provision of this Certificate Indenture or any supplemental certificate
indenture to the contrary, Holders shall have no recourse against the
Certificate Issuer, the Certificate Trustee, the Delaware Trustee or the
Agencies, but shall look only to the Trust Property with respect to any
amounts due to the Holders hereunder and under the Certificates.
Section 10.04. Certificates Nonassessable and Fully Paid. Pursuant to
Section 3803(a) of the Business Trust Statute, Certificateholders shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation law of the State of Delaware. Certificateholders shall not be
personally liable for obligations of the Certificate Issuer, the interests in
the Certificate Issuer represented by the Certificates shall be nonassessable
for any losses or expenses of the Certificate Issuer or for any reason
whatsoever, and upon authentication of the Certificates by the Certificate
Trustee pursuant to Section 2.04, the Certificates are and shall be deemed
fully paid and non-assessable. No Certificateholder shall have any right
(except as expressly provided herein) to vote or in any manner otherwise
control the operation and management of the Trust Property, the Certificate
Issuer, or the obligations of the parties hereto, nor shall anything set
forth herein, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association.
Section 10.05. Notices.
(a) Unless otherwise specifically provided herein, all notices,
directions, consents and waivers required under the terms and provisions of
this Certificate Indenture shall be in English and in writing, and any such
notice, direction, consent or waiver may be given by United States mail,
courier service, facsimile transmission or electronic mail (confirmed by
telephone, United States mail or courier service in the case of notice by
facsimile transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid,
if to the Agencies, to:
Massachusetts Development Finance Agency
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Massachusetts Health and Educational Facilities Authority
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Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee for the
Massachusetts RRB Special Purpose Trust WMECO-1
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Attention: Compliance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Bank of New York
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Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(with copies to the Agencies at the addresses listed herein)
if to the Certificate Trustee or the Note Trustee, to:
The Bank of New York, as trustee
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▇▇▇▇▇ ▇▇ ▇▇▇▇
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Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Delaware Trustee, to:
The Bank of New York (Delaware), as Delaware Trustee]
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Attention: Compliance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Bank of New York
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▇▇▇▇▇ ▇▇ ▇▇▇▇
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Attention: ABS Unit
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Note Issuer, to:
WMECO Funding LLC
c/o Western Massachusetts Electric Company
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Assistant Treasurer-Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇.▇▇▇
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
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Attention: Assistant Treasurer-Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇.▇▇▇
if to the Rating Agencies, to:
Standard & Poor's Ratings Services
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Attention: Asset Backed Surveillance Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇'▇ Investors Service
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Attention: ABS Monitoring Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Fitch, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Surveillance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b) The Certificate Issuer, the Certificate Trustee, the Note
Issuer or the Note Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for each Certificateholder shown
on the Certificate Register kept by the Certificate Registrar. Failure so to
mail a notice or communication or any defect in such notice or communication
shall not affect its sufficiency with respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been
duly given, whether or not the addressee receives it.
(e) If the Certificate Issuer mails a notice or communication to
the Certificateholders, it shall mail a copy to the Certificate Trustee, to
each Paying Agent and to the Note Issuer at the same time.
(f) Notwithstanding the foregoing, all communications or notices
to the Certificate Trustee or the Delaware Trustee shall be deemed to be
given only when received by a Responsible Officer of the Certificate Trustee
or the Delaware Trustee.
Section 10.06. Governing Law. THIS CERTIFICATE INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAW OF THE STATE OF
DELAWARE 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 LAW.
Section 10.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Certificate Indenture
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Certificate Indenture and
shall in no way affect the validity or enforceability of the other provisions
of this Certificate Indenture, or of the Certificates or the rights of the
Certificateholders.
Section 10.08. 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 Certificate Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
The provisions of Sections 310 through 317 of the Trust Indenture Act
that impose duties on any Person (including the provisions automatically
deemed included herein unless expressly excluded by this Certificate
Indenture) are a part of and govern this Certificate Indenture, whether or
not physically contained herein.
Section 10.09. Effect of Headings and Table of Contents. The Article
and Section headings herein and in the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 10.10. Successors and Assigns; Delegation.
(a) All covenants, agreements, representations and warranties in
this Certificate Indenture by the Certificate Trustee and the Certificate
Issuer shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
(b) No party to this Certificate Indenture shall assign or
delegate this Certificate Indenture or all or any part of its rights or
obligations hereunder to any Person without the prior written consent of the
other parties.
Section 10.11. Benefits of Certificate Indenture. Nothing in this
Certificate Indenture or in the Certificates, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder,
the Certificateholders and, to the extent provided herein, the Note Issuer,
any benefit or any legal or equitable right, remedy or claim under this
Certificate Indenture.
Section 10.12. Legal Holidays. In any case where any date for any
distribution in respect of any Certificate shall not be a Business Day, then
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 such first date,
and (unless otherwise specified herein) no interest shall accrue during the
intervening period.
Section 10.13. Counterparts. For the purpose of facilitating the
execution of this Certificate Indenture and for other purposes, this
Certificate Indenture may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and all of which counterparts shall constitute but one and the same
instrument.
Section 10.14. The Delaware Trustee. In performing its obligations
hereunder, the Delaware Trustee shall be entitled to the protections of the
Declaration of Trust.
Section 10.15. Nonpetition Covenants. Notwithstanding any prior
termination of this Certificate Indenture or the Note Indenture, but subject
to the DTE's right to order the sequestration and payment of revenues arising
with respect to the Transition Property notwithstanding any bankruptcy,
reorganization or other insolvency proceedings with respect to the debtor,
pledgor or transferor of the Transition Property pursuant to Sections
1H(d)(5) and 1H(e) of Chapter 164 of the Massachusetts General Laws, the
Certificate Trustee shall not prior to the date which is one year and one day
after the termination of the Note Indenture with respect to the Note Issuer,
petition or otherwise invoke or cause the Note Issuer or the Certificate
Issuer to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Note Issuer or the
Certificate 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 Note Issuer or the
Certificate Issuer or any substantial part of the property of the Note Issuer
or the Certificate Issuer, or ordering the winding up or liquidation of the
affairs of the Note Issuer or the Certificate Issuer.
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IN WITNESS WHEREOF, the Certificate Issuer and the Certificate
Trustee have caused this Certificate Indenture to be duly executed by duly
authorized officers or representatives, all as of the day and year first
above written.
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1
By: THE BANK OF NEW YORK (DELAWARE), not in
its individual capacity but solely as Delaware
Trustee
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee,
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SVP
THE BANK OF NEW YORK,
as Certificate Trustee,
By: /s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
NO. [ ] $ [ ]
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1
CLASS A-1
RATE REDUCTION CERTIFICATE
INTEREST RATE SCHEDULED FINAL FINAL CUSIP
DISTRIBUTION TERMINATION
DATE DATE
6.53% June 1, 2013 June 1, 2015 575800 AA5
REGISTERED OWNER: Cede & Co.
PRINCIPAL AMOUNT: [ ]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE 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 Certificate evidences a fractional undivided beneficial interest in
an Underlying Note (as defined below) of the corresponding class issued by
WMECO Funding LLC, a Delaware limited liability company, and the proceeds
thereof, held by a trust or registered assigns, as more fully described
herein.
This Certificate does not represent an interest in or obligation of The
Commonwealth of Massachusetts, the Massachusetts Development Finance Agency
or the Massachusetts Health and Educational Facilities Authority
(collectively, the "Agencies"), any other governmental agency or
instrumentality or Western Massachusetts Electric Company, a Massachusetts
corporation ("WMECO"), or any of its affiliates. None of the Certificate,
the Underlying Note or the underlying Transition Property (as defined in the
Certificate Indenture) will be guaranteed or insured by The Commonwealth of
Massachusetts, either of the Agencies, the Trust (as defined below) or any
other governmental agency or instrumentality or by WMECO or its affiliates.
Neither the full faith and credit nor the taxing power of The
Commonwealth of Massachusetts, either of the Agencies or any other
governmental agency or instrumentality is pledged to the payment of the
principal of, or interest on, this Certificate or the Underlying Note, or to
the payments in respect or in repurchase of the Transition Property, nor are
The Commonwealth of Massachusetts, either of the Agencies or any other
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 Certificate 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, fully-paid, fractional undivided beneficial
interest in the related Underlying Note and the proceeds thereof held by
Massachusetts RRB Special Purpose Trust WMECO-1 (the "Trust") or registered
assigns. The Trust is created pursuant to a Declaration of Trust dated as of
May 15, 2001 by The Bank of New York (Delaware), as Delaware Trustee (the
"Delaware Trustee"), and the Agencies, acting jointly as settlors thereunder
pursuant to Chapter 164 of the Massachusetts Acts of 1997 (the "Statute").
This Certificate is issued under and is subject to the terms, provisions, and
conditions of, a Certificate Indenture dated as of May 17, 2001 (the
"Certificate Indenture"), by and among the Delaware Trustee, The Bank of New
York, as certificate trustee (the "Certificate Trustee"), and the Trust, a
summary of certain of the pertinent provisions of which is set forth below.
This Certificate is one of the duly authorized class of Certificates
designated as "Massachusetts RRB Special Purpose Trust WMECO-1 Rate Reduction
Certificates, Class A-1" (herein called the "Class A-1 Certificates"). The
Class A-1 Certificates are one of a class of Certificates issued under the
Certificate Indenture (such Class A-1 Certificates, together with other
Classes of Certificates issued on the date hereof under the Certificate
Indenture being herein called the "Certificates"). The holder of this
Certificate (the "Holder"), by virtue of its acceptance hereof, assents and
agrees to be bound by the terms of the Certificate Indenture. This Class A-1
Certificate represents a fractional undivided beneficial interest in the note
of the corresponding class (the "Underlying Note") issued by WMECO Funding
LLC, as Note Issuer, together with the payments on and proceeds of the
Underlying Note. The Underlying Note is secured by a security interest in
the property right created under the Statute, pursuant to the order of the
Massachusetts Department of Telecommunications and Energy, DTE-00-40, issued
on February 7, 2001 (the "Financing Order"), representing the irrevocable
right of WMECO or its assignee to receive a certain nonbypassable charge (as
adjusted from time to time) from certain retail customers of WMECO's
distribution system, together with certain related collateral, all as more
fully described in the Note Indenture.
The aggregate principal amount of all Certificates of all Classes issued
under the Certificate Indenture equals the aggregate principal amount of the
Underlying Notes of all Classes, and all such Certificates are and will be
equally secured by the pledge and covenants made therein, except as otherwise
expressly provided or permitted in the Certificate Indenture.
Subject to and in accordance with the terms of the Certificate
Indenture, there will be distributed quarterly on each December 1, March 1,
June 1 and September 1 of each year or, if any such day is not a Business
Day, the next succeeding Business Day (each, a "Distribution Date"),
commencing on December 1, 2001 to the Person in whose name this Certificate
is registered at the close of business on the last Business Day immediately
preceding the related Distribution Date or, if Definitive Certificates are
issued, the first day of the immediately preceding calendar month (each, a
"Record Date"), such ▇▇▇▇▇▇'s fractional undivided interest in the payments
made on the Underlying Note due on the related Payment Date, the receipt of
which has been confirmed by the Certificate Trustee. Subject to and in
accordance with the terms of the Certificate Indenture, in the event that a
Special Payment on the Underlying Note is received by the Certificate
Trustee, from funds then available to the Certificate Trustee, there will be
distributed on the applicable Special Distribution Date, to the Person in
whose name this Certificate is registered on the Record Date preceding the
Special Distribution Date, as applicable, such Holder's fractional undivided
share of such amount. The Special Distribution Date will be determined as
provided in the Certificate Indenture. The Certificate Trustee will mail
notice of each Special Payment and the related Special Distribution Date to
the Holder as provided in the Certificate Indenture.
Distributions on this Certificate will be made as provided in the
Certificate Indenture by the Certificate Trustee by wire transfer or check
mailed to the Holder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon, except that with respect to Certificates 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.
Except as otherwise provided in the Certificate Indenture and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office of the
Paying Agent or the office or agency maintained for that purpose by the
Certificate Trustee in The City of New York.
Subject to and in accordance with the terms of the Certificate
Indenture, the Trust has represented and warranted under the Certificate
Indenture that the Trust constitutes a "special purpose trust" and a
"financing entity" under Section 1H(a) of Chapter 164 of the Massachusetts
General Laws, and that the Certificates constitute "electric rate reduction
bonds" under Section 1H(a) of Chapter 164 of the Massachusetts General Laws
and that the Holders are entitled to the rights and benefits thereunder.
Pursuant to Section 1H(b)(3) of Chapter 164 of the Massachusetts General
Laws, The Commonwealth of Massachusetts, has pledged and agreed with the Note
Issuer and the Holders (the "Commonwealth Pledge") as follows:
[T]he [C]ommonwealth [of Massachusetts] does hereby pledge and
agree with the owners of the transition property and holders
of electric rate reduction bonds that the [C]ommonwealth [of
Massachusetts] shall not (i) alter the provisions of this
chapter which make the transition charges imposed by the
financing order irrevocable and binding or (ii) limit or alter
the reimbursable transition costs amounts, transition
property, financing orders, and all rights thereunder until
the electric rate reduction bonds, together with the interest
thereon, are fully met and discharged.
In addition, the Trust has pledged and agreed with the Note Issuer and
the Holders that it will not act in a manner inconsistent with the
Commonwealth Pledge and will not take any action that would impair any rights
of the Note Issuer or the Holders in the Notes, the Transition Property or
the Certificates.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Certificate Trustee by manual signature, this
Certificate shall not be entitled to any benefit under the Certificate
Indenture or any other Basic Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAW OF THE STATE OF DELAWARE, 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 LAW.
Any reduction in the principal amount of any Certificate effected by any
distribution in respect of principal thereof shall be binding upon all
Holders of such Certificate and of any Certificate issued upon the
registration of transfer thereof or in exchange thereof or in lieu thereof,
whether or not noted thereon.
It is expressly agreed and understood by the parties hereto that
(a) this Certificate is executed by The Bank of New York (Delaware) and
authenticated and delivered by The Bank of New York, not individually or
personally but solely as Delaware Trustee and Certificate Trustee,
respectively, on behalf of the Trust in the exercise of the powers and
authority conferred and vested in them, (b) the representations, undertakings
and agreements herein made by the Delaware Trustee and Certificate Trustee on
behalf of the Trust are made and intended not as personal representations,
undertakings and agreements of either trustee, but are made and intended for
the purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on The Bank of New York (Delaware) or The
Bank of New York, individually or personally, to perform any covenant either
expressed or implied herein, except in their capacity as Delaware Trustee and
Certificate Trustee, respectively, all such liability being expressly waived
by all Persons, and (d) under no circumstances shall The Bank of New York
(Delaware) or The Bank of New York be personally liable for the payment of
any indebtedness or expenses of the Trust, or be personally liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Trust under the Certificate Indenture.
IN WITNESS WHEREOF, the Delaware Trustee on behalf of the Trust has
caused this Certificate to be duly executed.
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1
By: THE BANK OF NEW YORK (DELAWARE), not in
its individual capacity but solely as
Delaware Trustee
By:
Name:
Title:
CERTIFICATE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: [ ]
This is one of the Certificates referred to in the within-mentioned
Certificate Indenture.
THE BANK OF NEW YORK,
as Certificate Trustee
By:
Name:
Title:
[FORM OF REVERSE OF CERTIFICATE]
The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Certificate Indenture.
All payments or distributions made to Holders under the Certificate Indenture
shall be made only from the Trust Property and only to the extent that the
Certificate Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the
Certificate Indenture. Each Holder, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Trust Property to the
extent available for distribution to such Holder as provided in the
Certificate Indenture. This Certificate does not purport to summarize the
Certificate Indenture and reference is made to the Certificate Indenture for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby. A copy of the Certificate Indenture
may be examined during normal business hours at the principal office of the
Certificate Trustee, and at such other places, if any, designated by the
Certificate Trustee, by any Holder upon request.
The Certificate Indenture permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights of the
Holders under the Certificate Indenture at any time by the Trust and the
Certificate Trustee with the consent of the Holders holding Certificates
representing not less than a majority of the aggregate Outstanding Amount of
Certificates of each affected Class issued by the Trust. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange hereof or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Certificate
Indenture also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Certificate Indenture and subject to certain
limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies maintained by the
Certificate Trustee in its capacity as Certificate Registrar, or by any
successor Certificate Registrar, in the Borough of Manhattan, The City of
New York, duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Certificate Trustee and the Certificate Registrar
duly executed by the Holder hereof or such ▇▇▇▇▇▇'s attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate fractional undivided beneficial
interest in the Underlying Note will be issued to the designated transferee
or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Minimum Denominations of $1,000 Original Principal Amount and
integral multiples of $1.00 in excess thereof; provided, however, that one
Certificate of each Class may be of a smaller denomination. As provided in
the Certificate Indenture and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate fractional undivided beneficial
interest in the Underlying Notes, as requested by the Holder surrendering the
same.
The Holder, by purchase of this Certificate, 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 Certificate, will be deemed to agree to
treat the Underlying Note as debt of the Note Issuer, secured by, among other
things, the Transition Property and other related collateral, for all
purposes.
No service charge will be made for any such registration of transfer or
exchange, but the Certificate Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Certificate Trustee, the Certificate Registrar, and any agent of the
Certificate Trustee or the Certificate Registrar may treat the Person in
whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Certificate Trustee, the Certificate Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Certificate
Indenture shall terminate with respect to the Certificates upon the
distribution to the Holders of all amounts required to be distributed to them
pursuant to the Certificate Indenture and the disposition of all property
held as part of the Trust Property, except certain indemnity obligations of
the Note Issuer to the Certificate Trustee under the Fee and Indemnity
Agreement.
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-1 Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints _____________________, attorney, to
transfer said Class A-1 Certificate 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-1
Certificate in every particular, without alteration, enlargement or any
change whatsoever.
