P&D Draft
5/3/01
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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
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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 Grant, 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.
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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.,ss. 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.
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"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.
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"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, Xxxxx'x and Fitch
(if rated by Fitch) in one of its generic rating categories which signifies
investment grade.
"ELIGIBLE INSTITUTION" means (a) the corporate trust department of the
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 Xxxxx'x or a certificate of deposit rating of A-1+
by Standard & Poor's, F1+ by Fitch and P-1 by Xxxxx'x, or any other long-term,
short-term or certificate of deposit rating acceptable to Standard & Poor's,
Xxxxx'x and Fitch and (ii) whose deposits are insured by the FDIC. If so
qualified under clause (b) above, the 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, Xxxxx'x and Fitch (if rated by Fitch) in the highest investment
category granted thereby;
(c) commercial paper or other short term obligations of any
corporation organized under the laws of the United States of America
(other than the Seller or its Affiliates) whose ratings, at the time of
the investment or contractual commitment to invest therein, from
Standard & Poor's, Xxxxx'x and Fitch (if rated by Fitch) are in the
highest investment category granted thereby;
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(d) investments in money market funds, which funds have a
rating from Standard & Poor's, Xxxxx'x and Fitch (if rated by Fitch) in
the highest investment category granted thereby (including funds for
which the 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 Xxxxx'x, A-1+ by Standard & Poor's and F1+ by Fitch
(if rated by Fitch) at the time of entering into this repurchase
obligation, or
(iii) an unrated broker/dealer, acting as principal, that
is a wholly-owned subsidiary of a non-bank or bank holding company, the
unsecured short-term debt obligations of which are rated P-1 by
Xxxxx'x, A-1+ by Standard & Poor's and F1+ by Fitch (if rated by Fitch)
at the time of purchase; or
(h) any other investment permitted by each Rating Agency;
provided, however, that, unless otherwise permitted by each Rating Agency, upon
the failure of any Eligible Institution to maintain any applicable rating set
forth in this definition or the definition of Eligible Institution, the related
investments at such institution shall be reinvested in Eligible Investments at a
successor Eligible Institution within 10 days; and provided, further, that with
respect to Xxxxx'x only, the obligor related to clauses (b), (c), (e), (f) and
(g) above must have both a long term rating of at least Aa3 and a short term
rating of at least P-1.
"EVENT OF DEFAULT" 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
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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 xxxxx x xxxx
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.
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"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.
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"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 last 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,
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
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.
"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
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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 15th 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.
Section of
Term Note Indenture
---- --------------
Administrator..................................... 1.01(a)
Affiliate......................................... 1.01(a)
Basic Documents................................... 1.01(a)
Capital Subaccount................................ 1.01(a)
Code.............................................. 1.01(a)
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Section of
Term Note Indenture
---- --------------
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)
Xxxxx'x........................................... 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;
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(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. (a)
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized 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.
(c) 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.
(d) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Certificate Indenture, they may, but need not, be
consolidated and form one instrument.
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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
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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 Principal Interest Rate Scheduled Final Final Termination Date
Amount Distribution Date
A-1 $ %
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;
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(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
Certificate 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 [__],
2001, among the Seller, the Note Issuer and Xxxxxx Brothers Inc. and
Xxxxxxx Xxxxx Xxxxxx 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;
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(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 the Statute, and
the Certificates constitute "electric rate reduction bonds" under
Section 1H(a) of the Statute 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,
16
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
17
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.
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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
19
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.
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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;
21
(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
22
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
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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)
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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
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(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.
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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.
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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.
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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
29
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) if a Note Event of Default with respect to such Class of Notes
shall have occurred and be continuing, such direction shall not obligate the
Certificate Trustee to vote more than a corresponding majority of the related
Notes held by the Certificate Issuer in favor of declaring the unpaid principal
amount of the Notes and accrued interest thereon to be due and payable or
directing any action by the Note Trustee with respect to such Note Event of
Default; provided, however, that the Certificate Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Certificateholders not consenting to such
action.
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.
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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. (a) 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.
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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;
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(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
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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
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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.
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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 Moody's 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.
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(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
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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
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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 Moody's 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.
39
(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.
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(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
41
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
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(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
43
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.
44
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
45
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.
46
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 the Statute, and that the Certificates
constitute "electric rate reduction bonds" under Section 1H(a) of the Statute
and that the Holders of the Certificates are entitled to the rights and benefits
thereunder. Pursuant to Section 1H(b)(3) of the Statute, 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.
47
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
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
48
and
Massachusetts Health and Educational Facilities
Authority
00 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Certificate Issuer, to:
The Bank of New York (Delaware), as Delaware Trustee
for the Massachusetts RRB Special
Purpose Trust WMECO-1
Xxxxx Xxxx Center
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: ______________
Facsimile: (___) ___-____
Telephone: (___) ___-____
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(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
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
49
if to the Delaware Trustee, to:
The Bank of New York (Delaware), as Delaware Trustee]
Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: ________________
Facsimile: (___) ___-____
Telephone: (___) ___-____
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Attention: ABS Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Note Issuer, to:
WMECO Funding LLC
x/x Xxxxxxx Xxxxxxxxxxxxx Electric Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxxx@xx.xxx
with a copy to:
Western Massachusetts Electric Company
c/o Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Assistant Treasurer-Finance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxxxxxx@xx.xxx
50
if to the Rating Agencies, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Surveillance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Email: xxxx@xxxxxxxxxxxx.xxx
(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.
51
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
52
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 the Statute, 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
53
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),
as Delaware Trustee
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Certificate Trustee,
By:
----------------------------------
Name:
Title:
54
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
NO. [ ] $ [ ]
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST WMECO-1
CLASS A-1
RATE REDUCTION CERTIFICATE
INTEREST SCHEDULED FINAL FINAL
RATE DISTRIBUTION DATE TERMINATION DATE CUSIP
---- ----------------- ---------------- -----
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 last day of the
immediately preceding calendar month (each, a "Record Date"), such Holder'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 the Statute, and that the Certificates constitute
"electric rate reduction bonds" under Section 1H(a) of the Statute and that the
Holders are entitled to the rights and benefits thereunder. Pursuant to Section
1H(b)(3) of the Statute, 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),
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 Holder'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.
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions................................................................................2
Section 1.01. Definitions...........................................................................2
Section 1.02. Compliance Certificates and Opinions.................................................11
Section 1.03. Form of Documents Delivered to Certificate Trustee...................................12
Section 1.04. Acts of Certificateholders...........................................................13
ARTICLE II The Certificates..........................................................................14
Section 2.01. Terms of the Certificates............................................................14
Section 2.02. Issuance of Certificates.............................................................14
Section 2.03. Form, Denomination and Execution of Certificates.....................................16
Section 2.04. Authentication of Certificates.......................................................17
Section 2.05. Temporary Certificates...............................................................17
Section 2.06. Registration of Transfer and Exchange of Certificates................................18
Section 2.07. Certificateholders' Lists and Reports by Certificate Trustee.........................19
Section 2.08. Mutilated, Destroyed, Lost or Stolen Certificates....................................20
Section 2.09. Persons Deemed Owners................................................................20
Section 2.10. Cancellation.........................................................................21
Section 2.11. Limitation of Liability for Payments.................................................21
Section 2.12. Book-Entry and Definitive Certificates...............................................21
Section 2.13. Tax Treatment........................................................................23
ARTICLE III Covenants.................................................................................23
Section 3.01. Compliance with Declaration of Trust.................................................23
Section 3.02. No Additional Certificates...........................................................23
ARTICLE IV Distributions; Statements to Certificateholders...........................................23
Section 4.01. Certificate Accounts.................................................................23
Section 4.02. Distributions from Certificate Accounts..............................................24
Section 4.03. Statements to Certificateholders.....................................................26
Section 4.04. Investment of Special Payment Moneys.................................................27
Section 4.05. Reduction in Principal...............................................................27
ARTICLE V Defaults..................................................................................28
Section 5.01. Events of Default....................................................................28
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.02. Incidents of Sale of Notes...........................................................29
Section 5.03. Judicial Proceedings Instituted by Certificate Trustee; Certificate Trustee
May Bring Suit.......................................................................29
Section 5.04. Control by Certificateholders........................................................29
Section 5.05. Waiver of Past Defaults..............................................................30
Section 5.06. Right of Certificateholders To Receive Payments Not To Be Impaired...................31
Section 5.07. Certificateholders May Not Bring Suit Except Under Certain Conditions................31
Section 5.08. Remedies Cumulative..................................................................32
ARTICLE VI The Certificate Trustee...................................................................32
Section 6.01. Notice of Defaults...................................................................32
Section 6.02. Certain Rights of Certificate Trustee................................................32
Section 6.03. Not Responsible for Recitals or Issuance of Certificates.............................33
Section 6.04. May Hold Certificates................................................................34
Section 6.05. Money Held in Trust..................................................................34
Section 6.06. Compensation and Reimbursement; Indemnification......................................34
Section 6.07. Corporate Certificate Trustee Required; Eligibility..................................36
Section 6.08. Resignation and Removal; Appointment of Successor....................................36
Section 6.09. Acceptance of Appointment by Successor...............................................38
Section 6.10. Merger, Conversion, Consolidation or Succession to Business..........................39
Section 6.11. Maintenance of Agencies..............................................................39
Section 6.12. Money for Certificate Payments To Be Held in Trust...................................40
Section 6.13. Registration of Notes and Eligible Investments in Certificate Trustee's Name.........41
Section 6.14. Representations and Warranties of Certificate Trustee................................41
Section 6.15. Withholding Taxes; Information Reporting.............................................42
ARTICLE VII Supplemental Certificate Indentures.......................................................42
Section 7.01. Supplemental Certificate Indentures Without Consent of Certificateholders............42
Section 7.02. Supplemental Certificate Indentures With Consent of Certificateholders...............43
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.03. Documents Affecting Immunity or Indemnity............................................44
Section 7.04. Execution of Supplemental Certificate Indentures.....................................44
Section 7.05. Effect of Supplemental Certificate Indentures........................................44
Section 7.06. Conformity with Trust Indenture Act..................................................44
Section 7.07. Reference in Certificates to Supplemental Certificate Indentures.....................44
Section 7.08. Delaware Trustee.....................................................................44
ARTICLE VIII Amendments and Supplements to Notes, Note Indenture and Other Basic Documents.............45
Section 8.01. Amendments and Supplements to Notes, Note Indenture and Other Basic Documents........45
ARTICLE IX Satisfaction and Discharge................................................................45
Section 9.01. Satisfaction and Discharge of Certificate Indenture..................................45
ARTICLE X Miscellaneous Provisions..................................................................47
Section 10.01. Commonwealth Pledge; Certificates and Notes Not Obligations of The
Commonwealth of Massachusetts, Agencies or Seller....................................47
Section 10.02. Limitation on Rights of Certificateholders...........................................48
Section 10.03. No Recourse to Certificate Issuer....................................................48
Section 10.04. Certificates Nonassessable and Fully Paid............................................48
Section 10.05. Notices..............................................................................48
Section 10.06. Governing Law........................................................................52
Section 10.07. Severability of Provisions...........................................................52
Section 10.08. Conflict With Trust Indenture Act....................................................52
Section 10.09. Effect of Headings and Table of Contents.............................................52
Section 10.10. Successors and Assigns; Delegation...................................................52
Section 10.11. Benefits of Certificate Indenture....................................................52
Section 10.12. Legal Holidays.......................................................................52
Section 10.13. Counterparts.........................................................................53
Section 10.14. The Delaware Trustee.................................................................53
Section 10.15. Nonpetition Covenants................................................................53
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