1
EXECUTION COPY
================================================================================
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST BEC-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 JULY 29, 1999
----------------------------
$725,000,000
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST BEC-1
RATE REDUCTION CERTIFICATES
================================================================================
2
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.......................................... 17
Section 2.04. Authentication of Certificates............................................................ 18
Section 2.05. Temporary Certificates.................................................................... 18
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..................................................................... 21
Section 2.10. Cancellation.............................................................................. 21
Section 2.11. Limitation of Liability for Payments...................................................... 21
Section 2.12. Book-Entry and Definitive Certificates.................................................... 22
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................................................................ 24
ARTICLE IV Distributions; Statements to Certificateholders.............................................. 24
Section 4.01. Certificate Accounts...................................................................... 24
Section 4.02. Distributions from Certificate Accounts................................................... 24
Section 4.03. Statements to Certificateholders.......................................................... 27
Section 4.04. Investment of Special Payment Moneys...................................................... 27
Section 4.05. Reduction in Principal.................................................................... 28
ARTICLE V Defaults 27
Section 5.01. Events of Default......................................................................... 28
Section 5.02. Incidents of Sale of Notes................................................................ 29
Section 5.03. Judicial Proceedings Instituted by Certificate Trustee; Certificate Trustee
May Bring Suit......................................................................... 30
Section 5.04. Control by Certificateholders............................................................. 30
Section 5.05. Waiver of Past Defaults................................................................... 31
i
3
Page
----
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..................................................... 33
Section 6.03. Not Responsible for Recitals or Issuance of Certificates.................................. 34
Section 6.04. May Hold Certificates..................................................................... 34
Section 6.05. Money Held in Trust....................................................................... 35
Section 6.06. Compensation and Reimbursement; Indemnification........................................... 35
Section 6.07. Corporate Certificate Trustee Required; Eligibility....................................... 35
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............................... 38
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 in Certificate Trustee's Name....................................... 41
Section 6.14. Representations and Warranties of Certificate Trustee..................................... 41
Section 6.15. Withholding Taxes; Information Reporting.................................................. 41
Section 6.16. Obligations to Note Trustee and Delaware Trustee.......................................... 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
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
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
ii
4
Page
----
ARTICLE X Miscellaneous Provisions...................................................................... 46
Section 10.01. Commonwealth Pledge; Certificates and Notes Not Obligation of The
Commonwealth of Massachusetts, Agencies or Seller.................................... 46
Section 10.02. Limitation on Rights of Certificateholders............................................... 47
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............................................................................ 51
Section 10.07. Severability of Provisions............................................................... 51
Section 10.08. Conflict With Trust Indenture Act........................................................ 51
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............................................................................. 52
Section 10.14. The Delaware Trustee..................................................................... 52
SIGNATURE PAGE.......................................................................................... S-1
EXHIBIT A -- FORM OF CERTIFICATE........................................................................ A-1
iii
5
CERTIFICATE INDENTURE, dated as of July 29, 1999, between Massachusetts
rrb Special Purpose Trust BEC-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 BEC Funding LLC Notes (the
"Notes") with an aggregate principal amount of $725,000,000, consisting of
Classes A-1 through A-5, 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 BEC-1 Rate Reduction
Certificates (the "Certificates") with an aggregate principal amount of
$725,000,000, consisting of Classes A-1 through A-5, 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, 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,
6
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 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.
2
7
"indenture trustee" or "institutional trustee" means the
Certificate Trustee.
"obligor" on the indenture securities means the Certificate
Issuer and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Certificate Indenture
that are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule have the meaning
assigned to them by such definitions.
"Act," when used with respect to any Certificateholder, has the meaning
specified in Section 1.04.
"Agencies" means collectively the Massachusetts Development Finance
Agency and the Massachusetts Health and Educational Facilities Authority.
"Authentication Agent" means the authentication agent appointed
pursuant to Section 6.11.
"Authorized Agent" means any Paying Agent, Authentication Agent or
Certificate Registrar.
"Authorized Representative" means, with respect to any entity, any
person who is authorized to act for such entity in matters relating to such
entity and who is identified on the list of Authorized Representatives 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 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., Section 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
3
8
pursuant to the applicable provisions hereof, as so supplemented or amended or
both, and shall include the forms and terms of the Certificates established
hereunder.
"Certificate Owner" means the Person who owns a Book-Entry Certificate.
"Certificate Register" has the meaning set forth in Section 2.06.
"Certificate Registrar" means, initially, the Certificate Trustee,
pursuant to Section 2.06, and any successor registrar that meets the eligibility
standards specified in Section 6.11(b).
"Certificate Trustee" means The Bank of New York, as Certificate
Trustee under this Certificate Indenture, and its successors in interest, and
any successor Certificate Trustee appointed as provided herein.
"Certificate Trustee Expenses" has the meaning set forth in Section
6.06.
"Certificate Trustee Indemnified Persons" has the meaning set forth in
Section 6.06.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate is registered on the Certificate Register.
"Certificates" has the meaning set forth in Section 2.01(a).
"Class" means any one of the classes of Certificates; and, with respect
to the Notes, any one of the classes of Notes.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Commonwealth Pledge" has the meaning set forth in Section 10.01(a).
"Corporate Trust Office" means the principal office of the Certificate
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Certificate
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 12 East, New York, New York
10286, Attention: Asset Backed Finance Unit, 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 July 28, 1999 by The Bank of New
York (Delaware), as Delaware Trustee, and the Massachusetts Development Finance
Agency and the Massachusetts Health and
4
9
Educational Facilities Authority, acting jointly as settlors thereunder pursuant
to the Statute, as the same may be amended, supplemented or otherwise modified
from time to time.
"Definitive Certificates" has the meaning set forth in Section 2.12(a).
"Distribution Date" means, with respect to the Certificates, a Payment
Date with respect to the Notes.
"DTC Agreement" means the agreement between the Certificate Trustee, on
behalf of the Certificate Issuer, and The Depository Trust Company, as the
initial Clearing Agency, dated as of July 28, 1999, 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 one of the states thereof or the District
of Columbia (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
each Rating Agency 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, any State or the District of Columbia (or any
domestic branch of a foreign bank), (i) which has either (A) a long-term
unsecured debt rating of AAA by Standard & Poor's and Aaa by Moody's or (B) a
certificate of deposit rating of A-1+ by Standard & Poor's and P-1 by Moody's,
or any other long-term, short-term or certificate of deposit rating acceptable
to the Rating Agencies 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" means instruments or investment property
denominated in United States currency that evidence:
(i) direct obligations of, or obligations fully and
unconditionally guaranteed as to timely payment by, the United States
of America;
(ii) demand deposits, time deposits, certificates of deposit
or bankers' acceptances of depository institutions meeting the
requirements of clause (b) of the definition of Eligible Institutions;
(iii) commercial paper (other than commercial paper of the
Seller) having, at the time of the investment or contractual commitment
to invest therein, a rating from each of the Rating Agencies from which
a rating is available in the highest investment category granted
thereby;
5
10
(iv) investments in money market funds having a rating from
each of the Rating Agencies from which a rating is available in the
highest investment category granted thereby (including funds for which
the Certificate Trustee or any of its Affiliates is investment manager
or advisor);
(v) 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 depository institutions
meeting the requirements of clause (b) of the definition of Eligible
Institution;
(vi) any other investment permitted by each of the Rating
Agencies; and
(vii) The Bank of New York Deposit Reserve, an interest
bearing account of The Bank of New York,
in each case which mature on or before the Business Day preceding the next
Payment Date.
"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 described in Section 10.01(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor.
"Fee and Indemnity Agreement" means the fee and indemnity agreement
dated as of July 29, 1999, among the Note Issuer, the Delaware Trustee, the
Certificate Trustee, the Certificate Issuer and the Agencies.
"Final Termination Date" means, with respect to any Class of
Certificates, the Final Maturity Date of the related Class of Notes.
"Interest Rate" has the meaning set forth in Section 2.01(b).
"Minimum Denomination" means $1,000 or any integral multiple thereof.
"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 July 29, 1999,
between the Note Issuer and the Note Trustee, as amended and supplemented from
time to time.
"Note Issuer" means BEC Funding LLC, a Delaware limited liability
company, and its successors in interest.
6
11
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
July 29, 1999, 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, as trustee, shall comply with any
applicable requirements of Section 1.02, and shall be in form and substance
reasonably satisfactory to the Certificate Trustee.
"Original Principal Amount" means, with respect to any Certificate, the
amount set forth as such on the face of such Certificate on the date of its
issuance.
"Outstanding" means, as of the date of determination, all Certificates
theretofore authenticated and delivered under this Certificate Indenture except:
(i) Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
(ii) Certificates or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
Certificate Trustee or any Paying Agent in trust for the Holders of
such Certificates (provided, however, that if such Certificates are to
be redeemed, notice of such redemption has been duly given pursuant to
this Certificate Indenture or provision therefor, reasonably
satisfactory to the Certificate Trustee, has been made); and
(iii) Certificates in exchange for or in lieu of other
Certificates that have been authenticated and delivered pursuant to
this Certificate Indenture unless proof satisfactory to the Certificate
Trustee is presented that any such Certificates are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Certificates or any Class thereof have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or under any Basic Document, Certificates owned by the Note Issuer, the
Certificate Issuer, any other obligor upon the Certificates, the Seller, or any
Affiliate of any of the foregoing Persons shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Certificate Trustee
shall be protected in relying upon any
7
12
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates that a Responsible Officer of the Certificate Trustee actually
knows to be so owned shall be so disregarded. Certificates so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Certificate Trustee the pledgee's right
so to act with respect to such Certificates and that the pledgee is not the Note
Issuer, any other obligor upon the Certificates, the Certificate Issuer, the
Seller, or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Certificates, or, if the context requires, all Certificates of a Class,
Outstanding at the date of determination.
"Paying Agent" means the Certificate Trustee or any other Person that
meets the eligibility standards specified in Section 6.11(b) and is authorized
by the Certificate Issuer (with the prior written approval of the Note Issuer)
to make distributions of principal of or interest with respect to the
Certificates.
"Payment" means, with respect to the Notes, any payment (other than a
Special Payment but including any Redemption Payment) of principal of or
interest thereon.
"Payment Date" means, with respect to the Notes, the date or dates
specified as Payment Dates therefor in the Note Indenture.
"Person" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Record Date" means, with respect to any Distribution Date, the
Business Day immediately preceding such Distribution Date or, if Definitive
Certificates are issued, 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 any officer within the Corporate Trust
Office, including any Managing Director, Vice President, Assistant Vice
President, Secretary, Assistant Secretary or Assistant Treasurer or any other
officer of the Certificate Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
8
13
"Sale Agreement" means the Transition Property Purchase and Sale
Agreement dated as of July 29, 1999, 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.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Boston Edison Company, a Massachusetts corporation, and
its permitted successors and assigns under the Sale Agreement.
"Servicer" means Boston Edison 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 July 29, 1999, between the Servicer and the Note Issuer, as amended
and supplemented from time to time.
"Special Distribution Date" means, with respect to the distribution of
any Special Payment with respect to any Class of Notes, the later of (i) the
date receipt of such Special Payment is confirmed by the Certificate Trustee and
(ii) the date that is the earlier of (A) if the Certificate Trustee shall have
received such Special Payment without prior notice thereof, 20 days after such
receipt is confirmed or (B) unless such Special Payment represents the proceeds
of a sale of such Notes by the Certificate Trustee (in which event the Special
Distribution Date for such proceeds shall be the earliest date for which it is
practicable for the Certificate Trustee to give the 20-day notice required by
Section 4.02(d)), the date that is 20 days after the Certificate Trustee
receives notice from the Note Issuer of the anticipated payment of such Special
Payment; provided, however, that in the event of the repurchase of the
Transition Property by the Seller, the Special Distribution Date shall mean a
date not later than five Business Days after receipt of such proceeds.
"Special Payment" means, with respect to any Class of Notes, (i) any
payment of principal of or interest on (including any interest accruing upon
default), or any other amount in respect of, the Notes of such Class that is
paid more than five days after the Payment Date applicable thereto or (ii) any
proceeds from the sale of such Notes by the Certificate Trustee pursuant to
Article V hereof or the repurchase of the Transition Property by the Seller
pursuant to Article V of the Sale Agreement.
"Special Record Date" means, with respect to any Special Distribution
Date, the close of business on the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
9
14
"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 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.
(a) 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.
10
15
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)
Collateral. .................................................. 1.01(a)
DTE .......................................................... 1.01(a)
Duff & Xxxxxx ................................................ 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 IBCA. .................................................. 1.01(a)
Issuance Date ................................................ 1.01(a)
Xxxxx'x ...................................................... 1.01(a)
Rating Agency ................................................ 1.01(a)
Rating Agency Condition ...................................... 1.01(a)
Scheduled Maturity Date ...................................... 1.01(a)
Standard & Poor's ............................................ 1.01(a)
State ........................................................ 1.01(a)
Statute ...................................................... 1.01(a)
Transition Property .......................................... 1.01(b)
UCC .......................................................... 1.01(a)
(b) 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:
11
16
(a) a statement that each signatory of such certificate or
opinion has read or caused to be read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Certificate Trustee. 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.
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.
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.
12
17
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Certificate Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Certificate Indenture to be given or
taken by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by their agents duly appointed in writing; and except as herein
otherwise expressly provided such request, demand, authorization, direction,
notice, consent, waiver or other action shall become effective when such
instrument or instruments are delivered to the Certificate Trustee, and, where
it is hereby expressly required, to the Certificate Issuer and the Note Trustee.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Certificate Indenture and (subject to Article VI) conclusive in
favor of the Certificate Trustee, the Certificate Issuer and the Note Trustee,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Certificate Trustee
deems sufficient.
(c) The ownership of Certificates shall be proved by the Certificate
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificates shall bind the Holder
of every Certificate issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Certificate Trustee, the Certificate Issuer or the Note Trustee
in reliance thereon, whether or not notation of such action is made upon such
Certificate.
(e) The Certificate Issuer may at its option by delivery of an
Officer's Certificate to the Certificate Trustee set a record date to determine
the Holders of any Class of Certificates entitled to give any consent, request,
demand, authorization, direction, notice, waiver or other Act. Notwithstanding
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
13
18
deemed effective unless it shall become effective pursuant to the provisions of
this Certificate Indenture not later than one year after the record date.
(f) Except as otherwise provided in the definition of Outstanding,
Certificates of any Class owned by or pledged to any Person shall have an equal
and proportional benefit under the provisions of this Certificate Indenture,
without preference, priority or distinction as among all of the Certificates of
that Class.
ARTICLE II
THE CERTIFICATES
Section 2.01. Terms of the Certificates.
(a) Authorization; Designation. The issuance of the Certificates is
hereby authorized and the Certificates shall be designated generally as the
Massachusetts RRB Special Purpose Trust BEC-1 Rate Reduction Certificates (the
"Certificates"), and further designated as Classes A-1 through A-5. 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
and shall have Scheduled Final Distribution Dates and Final Termination Dates as
set forth below:
Initial Principal Certificate Scheduled Final Final Termination
Class Amount Interest Rate Distribution Date Date
----- ----------------- ------------- ----------------- -----------------
A-1 $108,500,000 5.99% 3/15/01 3/15/03
A-2 $170,609,837 6.45% 9/15/03 9/15/05
A-3 $103,390,163 6.62% 3/15/05 3/15/07
A-4 $170,875,702 6.91% 9/15/07 9/15/09
A-5 $171,624,298 7.03% 3/15/10 3/15/12
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
14
19
authentication of the Certificates of any Class, the Certificate Trustee shall
have received the following:
(a) The Class of Notes, duly executed by the Note Issuer and
authenticated by the Note Trustee, corresponding to the Class of Certificates to
be issued;
(b) A certificate of an Authorized Representative of the Note Issuer to
the effect that all conditions required to be satisfied under Section 2.10 of
the Note Indenture for the issuance of such Class of Notes and all conditions
required to be satisfied under the Note Purchase Agreement for the purchase of
the Notes by the Certificate Issuer have been satisfied, together with executed
copies of all documents, certificates, opinions, orders or approvals
establishing satisfaction of such conditions;
(c) An order of an Authorized Representative of the Certificate Issuer
(i) directing the Delaware Trustee on behalf of the Certificate Issuer to
execute and deliver this Certificate Indenture to be executed in connection with
the Certificates to be issued hereunder, (ii) directing the Delaware Trustee on
behalf of the Certificate Issuer to execute and deliver the Note Purchase
Agreement and (iii) directing the Delaware Trustee to execute and deliver on
behalf of the Certificate Issuer, and the Certificate Trustee to authenticate,
as Authentication Agent, global Certificates, each to be registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), and to
confirm its custody of the Certificates to DTC in New York, New York so that the
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) 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;
15
20
(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 July 22,
1999, among the Seller, the Note Issuer and Xxxxxx Brothers Inc. and
Xxxxxxx, Xxxxx & Co., as the representatives of the several
underwriters named therein, will represent valid, fully paid and
nonassessable undivided beneficial interests in the assets of the
Certificate Issuer, entitled to the benefits of this Certificate
Indenture;
(v) the Note Purchase Agreement has been duly executed and
delivered by the Delaware Trustee on behalf of the Certificate Issuer
and, assuming due authorization, execution and delivery thereof by the
Note Issuer, constitutes a legal, valid and binding agreement of the
Certificate Issuer, enforceable against the Certificate Issuer in
accordance with its terms except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws relating to or affecting
the enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), including that the availability of
specific enforcement or injunctive relief is subject to the discretion
of the court before which any such proceeding is brought;
(vi) the Certificate Issuer is a duly organized and validly
existing business trust under the Business Trust Statute and is in good
standing;
(vii) this Certificate Indenture has been duly qualified under
the Trust Indenture Act or no such qualification is necessary;
(viii) the Certificate Issuer constitutes a "special purpose
trust" and a "financing entity" under Section 1H(a) of 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.
16
21
(e) Sufficient funds to pay the purchase price for the related Class of
Notes, as specified in Section 1(b) of the Note Purchase Agreement; and
(f) The Rating Agency Condition shall have been satisfied with respect
to the issuance of the Class of Certificates.
Section 2.03. Form, Denomination and Execution of Certificates. The
Certificates shall be issued in registered form without coupons and shall be
substantially in the form attached hereto as Exhibit A, with the following
filled in: (a) the designation of the Classes thereof, which shall be the same
designation as the related Class or Classes of Notes, (b) the Certificate number
or numbers thereof, (c) the date of authentication thereof, which shall be the
same as the Issuance Date of the related Class or Classes of Notes, and (d) the
Original Principal Amount thereof, which shall equal, in the aggregate, the
principal amount of the Notes; and with such omissions, variations and
insertions as are permitted by this Certificate Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as may be required to
comply with the rules of any securities exchange on which any Class or Classes
of the Certificates may be listed or to conform to any usage in respect thereof,
or as may, consistently herewith, be prescribed by the Certificate Trustee or by
the Certificate Issuer (with the prior written approval of the Note Issuer), and
as evidenced by the execution and authentication of such Certificates.
Except as provided in Section 2.12, the definitive Certificates of each
Class shall be printed, lithographed or engraved or produced by any combination
of these methods or may be produced in any other manner permitted by the rules
of any securities exchange on which the Certificates of such Class may be
listed, as evidenced by an order by an Authorized Representative of the
Certificate Issuer, relating to the authentication of such Certificates by the
Certificate Trustee.
The Certificates of each Class shall be issued in not less than Minimum
Denominations.
The Certificates shall be executed on behalf of the Certificate Issuer
by the Delaware Trustee by manual or facsimile signature of a Responsible
Officer of the Delaware Trustee. Certificates bearing the manual or facsimile
signature of an individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Certificate Issuer shall be validly issued
by the Certificate Issuer, notwithstanding that such individual has ceased to be
so authorized prior to the authentication and delivery of such Certificates or
did not hold such office at the date of such Certificates. No Certificate shall
be entitled to any benefit under this Certificate Indenture, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A hereto, executed
by the Certificate Trustee (or any Authentication Agent) by manual signature,
and such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
17
22
Section 2.04. Authentication of Certificates. The Certificate Trustee
shall duly authenticate and deliver Certificates of each Class in authorized
denominations equaling, in the aggregate for each Class of Certificates, the
aggregate initial principal amount of the Notes of such Class.
Section 2.05. Temporary Certificates. Pending the preparation of
definitive Certificates of any Class, the Delaware Trustee on behalf of the
Certificate Issuer may execute, and the Certificate Trustee or any
Authentication Agent upon written order of the Certificate Issuer shall
authenticate and deliver, temporary Certificates of such Class that are printed,
lithographed, typewritten or otherwise produced, in any denomination, containing
substantially the same terms and provisions as set forth in Exhibit A, except
for such appropriate insertions, omissions, substitutions and other variations
relating to their temporary nature as the Certificate Issuer may determine, as
evidenced by the execution of such temporary Certificates by the Delaware
Trustee on behalf of the Certificate Issuer.
If temporary Certificates of any Class are issued, the Certificate
Issuer will cause definitive Certificates of such Class to be prepared without
unreasonable delay. After the preparation of definitive Certificates of such
Class, the temporary Certificates shall be exchangeable for definitive
Certificates of such Class upon surrender of the temporary Certificates at the
Corporate Trust Office of the Certificate Trustee, or at the office or agency of
the Certificate Trustee maintained in accordance with Section 6.11, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Delaware Trustee on behalf of the Certificate Issuer
shall execute and the Certificate Trustee shall authenticate and deliver in
exchange therefor definitive Certificates (of the same Class as the temporary
Certificates surrendered) of authorized denominations of a like aggregate
Original Principal Amount. Until so exchanged, such temporary Certificates shall
in all respects be entitled to the same benefits under this Certificate
Indenture as definitive Certificates of the same Class.
Section 2.06. Registration of Transfer and Exchange of Certificates.
The Certificate Trustee shall cause to be kept at the office of agency to be
maintained by it in accordance with the provisions of Section 6.11 a register
(the "Certificate Register") in which, subject to such reasonable regulations as
it may prescribe, the Certificate Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Trustee shall initially be the registrar (the "Certificate
Registrar") for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided.
Subject to this Section 2.06, upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office or such other office
or agency maintained by the Certificate Trustee in accordance with Section 6.11,
the Delaware Trustee on behalf of the Certificate Issuer shall execute, and the
Certificate Trustee shall authenticate and deliver, in the name of the
designated transferee, one or more new Certificates (of the same Class as the
Certificates surrendered for registration of transfer) in authorized
denominations of a like aggregate Original Principal Amount; provided, however,
that if any such surrendered Certificate shall have become or within 15 days
shall be due and payable or shall have been called for redemption, instead of
issuing a replacement Certificate, the Certificate Trustee may pay such
surrendered Certificate when so due and payable or upon the Special Distribution
Date without surrender thereof.
18
23
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates (of the same Class as the Certificates surrendered for
registration of exchange) of authorized denominations of a like aggregate
Original Principal Amount, upon surrender of the Certificates to be exchanged at
any such office or agency. Whenever any Certificates are so surrendered for
exchange, the Delaware Trustee on behalf of the Certificate Issuer shall
execute, and the Certificate Trustee shall authenticate and deliver the
Certificates that the Certificateholder making the exchange is entitled to
receive.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Certificate Trustee and the Certificate
Registrar duly executed by the Certificateholder thereof or its attorney duly
authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Certificate
Trustee shall require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Certificate Trustee in
accordance with its customary practices.
Section 2.07. Certificateholders' Lists and Reports by Certificate
Trustee.
(a) The Certificate Issuer To Furnish Certificate Trustee with Names
and Addresses of Certificateholders. The Certificate Registrar on behalf of the
Certificate Issuer will furnish or cause to be furnished to the Certificate
Trustee within 15 days after each Record Date, and at such other times as the
Certificate Trustee may request in writing, within 30 days after receipt by the
Certificate Issuer of any such request, a list, in such form as the Certificate
Trustee may reasonably require, of all information in the possession or control
of the Certificate Issuer as to the names and addresses of the
Certificateholders, in each case as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that so long as the Certificate
Trustee is the sole Certificate Registrar, no such list need be furnished; and
provided further, however, that no such list need be furnished for so long as a
copy of the Certificate Register is being furnished to the Certificate Trustee
pursuant to Section 6.11.
Upon the written request of any Certificateholder or Certificateholders
of record holding Certificates evidencing not less than ten percent of the
aggregate Outstanding Amount of Certificates, the Certificate Trustee shall
afford such Certificateholder or Certificateholders access during business hours
to the current list of Certificateholders for purposes of communicating with
other Certificateholders with respect to their rights under this Certificate
Indenture.
(b) Preservation of Information. The Certificate Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Certificateholders contained in the most recent list furnished to
the Certificate Trustee as provided in Section 6.11 or Section 2.07(a), as the
case may be, and the names and addresses of Certificateholders received
19
24
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 1999, the Certificate Trustee shall transmit to the Certificateholders, as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of such December 31, if required by Section 313(a) of the Trust Indenture Act.
The Certificate Trustee also shall comply with Section 313(b) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to Certificateholders
shall be filed by the Certificate Trustee with the Commission and with each
stock exchange, if any, on which the Certificates are listed and of which
listing the Certificate Trustee has been informed. The Certificate Issuer shall
notify the Certificate Trustee if and when the Certificates are listed on any
stock exchange.
(e) Reports by the Certificate Issuer. Pursuant to Section 314(a)(4) of
the Trust Indenture Act, the Certificate Issuer shall furnish to the Certificate
Trustee, not less often than annually and prior to January 31 of each year,
commencing January 31, 2000, 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
20
25
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
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
Certificate Registrar nor any Paying Agent of the Certificate Trustee shall be
affected by any notice to the contrary.
Section 2.10. Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to any party hereto other than the
Certificate Registrar, be delivered to the Certificate Registrar for
cancellation. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates cancelled as provided in this Section, except as expressly
permitted by this Certificate Indenture. All cancelled Certificates held by the
Certificate Registrar shall be delivered to the Certificate Trustee and, in
accordance with Section 2.06, destroyed.
Section 2.11. Limitation of Liability for Payments. All payments or
distributions made to Holders of Certificates under this Certificate Indenture
shall be made only from the Trust Property with respect to that Class of
Certificates and only to the extent that the Certificate Trustee shall have
sufficient income or proceeds from such Trust Property to make such payments in
accordance with the terms of Article IV of this Certificate Indenture. Each
Holder of a Certificate of any Class, by its acceptance of a Certificate of that
Class, agrees that it will look solely to the income and proceeds from the Trust
Property with respect to that Class to the extent available for distribution to
the Holder thereof as provided in this Certificate Indenture. It is expressly
understood and agreed by the parties hereto that (a) the Certificates are
executed, authenticated and delivered by the Delaware Trustee and the
Certificate Trustee, respectively, not individually or personally but solely in
their respective capacity as Delaware Trustee and Certificate Trustee in the
exercise of the powers and authority conferred and vested in them, and (b) under
no circumstances shall the Delaware Trustee or Certificate Trustee be personally
liable for the payment of any of the Certificates or any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Certificate
Issuer under this Certificate Indenture.
21
26
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 and the Certificate Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates of such Class) as the authorized representative of the
Certificate Owners of Certificates of such Class;
(iii) to the extent that the provisions of this Section 2.12
conflict with any other provisions of this Certificate Indenture, the
provisions of this Section 2.12 shall control;
(iv) the rights of Certificate Owners of Certificates of such
Class shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency Participants; and until
Definitive Certificates of such Class are issued pursuant to Section
2.12(c) below, the Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit distributions
of principal of and interest on the Certificates of such Class to such
Clearing Agency Participants; and
(v) whenever this Certificate Indenture requires or permits
actions to be taken based upon instructions or directions of
Certificateholders holding Certificates of such Class representing a
specified percentage of the aggregate Outstanding Amount of
Certificates of such Class, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners or Clearing Agency
Participants owning or representing, respectively, Certificates
representing such percentage of the aggregate Outstanding Amount of
Certificates of such Class, and has delivered such instructions to the
Certificate Trustee; the Certificate Trustee shall have no obligation
to determine whether the Clearing Agency has in fact received any such
instructions.
(b) Whenever notice or other communication to the Holders of
Certificates of any Class issued in the form of Certificates representing
Book-Entry Certificates is required under this Certificate Indenture, unless and
until Definitive Certificates of such Class shall have been issued
22
27
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 or the Certificate Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Certificate
Trustee 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.
23
28
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 with respect to such Class (each, a
"Certificate Account"), which shall be non-interest bearing except as provided
in Section 4.04, in the corporate trust department of an Eligible Institution,
in the name of the Certificate Trustee for the benefit of such
Certificateholders. The Certificate Trustee shall hold each Certificate Account
in trust for the benefit of the Holders of Certificates of the corresponding
Class, and shall make or permit withdrawals therefrom only as provided in this
Certificate Indenture. On each day when a Payment or Special Payment (other than
a Special Payment that represents the proceeds of any sale pursuant to Article V
hereof by the Certificate Trustee of any Note) is made to the Certificate
Trustee, as holder of Notes of any Class, the Certificate Trustee upon receipt
shall immediately deposit the aggregate amount of such Payment or Special
Payment in the Certificate Account for the corresponding Class of Certificates.
Upon the sale of any Note by the Certificate Trustee pursuant to Article V and
the realization of any proceeds thereof, the Certificate Trustee shall deposit
the aggregate amount of such proceeds as a Special Payment in the Certificate
Account for the Class of Certificates corresponding to the Class of the Note so
sold.
(b) The Certificate Trustee shall present to the Note Trustee for
payment each Note on its Final Maturity Date, or, in the case of any redemption
or repayment of such Note in full prior to its Final Maturity Date, on the
applicable Payment Date therefor.
(c) The Certificate Trustee (or any Paying Agent other than the
Certificate Trustee) shall have sole dominion and exclusive control over all
monies in the Certificate Accounts and shall apply such amounts therein as
provided in this Article.
Section 4.02. Distributions from Certificate Accounts.
(a) On any Distribution Date, the Certificate Trustee shall distribute
out of the Certificate Account for the corresponding Class of Certificates, in
the manner described in Section 4.02(e), the entire amount of such Payment
deposited therein pursuant to Section 4.01(a); provided, however, that in the
event receipt of any such Payment is not confirmed by the Certificate Trustee by
1:00 p.m. (New York City time) on such Distribution Date, distribution thereof
shall
24
29
be made on the day receipt thereof is confirmed by the Certificate Trustee by
1:00 p.m. (New York City time) or, if receipt thereof is confirmed by the
Certificate Trustee after 1:00 p.m. (New York City time), on the following
Business Day. There shall be so distributed to each Holder of such Class of
Certificates on the Record Date with respect to such Distribution Date (other
than as provided in Section 9.01 with respect to a final distribution) such
Certificateholder's fractional undivided share (based on the aggregate
Outstanding Amount of Certificates of such Class held by such Certificateholder)
of the aggregate amount in the related Certificate Account. The foregoing
notwithstanding, if a Payment is not received by the Certificate Trustee by the
day that is five days after the related Payment Date, but is subsequently
received, it will be treated as a Special Payment pursuant to Section 4.02(b).
The final distribution with respect to any Certificate, however, will
be made only upon presentation and surrender of such Certificate at the office
or agency of the Certificate Trustee specified in the notice given by the
Certificate Trustee with respect to such final payment. The Certificate Trustee
will provide notice of a final distribution to each Holder as of the date such
notice is given with respect to any Certificate as soon as practicable following
receipt of notice from the Note Trustee of a final payment on a corresponding
Note.
(b) On each Special Distribution Date with respect to the distribution
of any Special Payment with respect to any Class of Notes, the Certificate
Trustee shall distribute out of the Certificate Account for the corresponding
Class of Certificates, in the manner described in Section 4.02(e), the entire
amount of such Special Payment deposited therein pursuant to Section 4.01(a) and
any income and earnings received from the investment of such Special Payment
pursuant to Section 4.04; provided, however, that in the event receipt of any
such Special Payment is not confirmed by the Certificate Trustee by 1:00 p.m.
(New York City time) on such Special Distribution Date, distribution thereof
shall be made on the day receipt thereof is confirmed by the Certificate Trustee
by 1:00 p.m. (New York City time) or, if receipt thereof is confirmed by the
Certificate Trustee after 1:00 p.m. (New York City time), on the following
Business Day. There shall be so distributed to each Holder of such Class of
Certificates on the Special Record Date with respect to such Special
Distribution Date (other than as provided in Section 9.01 with respect to a
final distribution) such Certificateholder's fractional undivided share (based
on the aggregate Outstanding Amount of Certificates of such Class held by such
Certificateholder) of the aggregate amount of such Special Payment and any
income and earnings received from the investment of such Special Payment
pursuant to Section 4.04.
(c) The Certificate Trustee shall allocate amounts distributed to
Holders of Certificates of any Class on any Distribution Date or Special
Distribution Date as follows: (i) to the extent such amounts represent payments
of principal of the corresponding Class of Notes (including prepayments or
redemption price), or the proceeds of the sale of any such Note by the
Certificate Trustee pursuant to Article V (to the extent such proceeds exceed
the unpaid interest on the related class of Notes), such amounts shall be
allocated to principal of such Certificates and (ii) all other such amounts
shall be allocated to interest on such Certificates. The Certificate Trustee may
conclusively rely on the payment statement received by it from the Servicer
pursuant to the Servicing Agreement with any payment in respect of any Class of
Notes as to whether the amount so paid in respect of such Notes is in respect of
principal of or interest on
25
30
such Notes. If no statement is received, such payments received with respect to
any Class of Notes shall first be allocable to interest to the extent of any
interest accrued and payable on such Class of Notes, and then to principal.
(d) The Certificate Trustee shall cause notice of each Special Payment
with respect to any Class of Notes to be mailed to each Holder of Certificates
of the corresponding Class at its address as it appears in the Certificate
Register. In the event of (i) the optional redemption of the Notes of any Class,
such notice shall be mailed not less than five days nor more than 25 days prior
to the Special Distribution Date on which any such Redemption Payment is
scheduled to be distributed, and (ii) the mandatory redemption of the Notes of
any Class, such notice shall be mailed not less than five days prior to the
Special Distribution Date on which any such Redemption Payment is scheduled to
be distributed. In the case of any other Special Payment, such notice shall be
mailed not less than 20 days prior to the Special Distribution Date on which any
Special Payment is scheduled to be distributed in respect of Certificates of
such Class stating such anticipated Special Distribution Date. Any such notice
mailed by the Certificate Trustee shall set forth:
(i) the Special Distribution Date or the Distribution Date, as
applicable, and the Special Record Date or Record Date therefor, as
applicable (except as otherwise provided in Section 9.01);
(ii) the amount of the Special Distribution for each $1,000
Original Principal Amount of Certificates of the applicable Class and
the amount thereof constituting principal and interest;
(iii) the reason for the Special Distribution; and
(iv) the total amount to be received on such date for each
$1,000 Original Principal Amount of Certificates of the applicable
Class but only, in the case of a Special Payment, if the related
Special Distribution Date is also a Distribution Date.
(e) Distributions to Holders of Certificates shall be by check sent by
first-class mail to the address of such Holder appearing on the Certificate
Register at the relevant Record Date or Special Record Date or, upon written
application of a Holder of Certificates of any Class in the Original Principal
Amount of $1,000,000 or more to the Certificate Trustee made at any time not
later than such Record Date or Special Record Date or continuing in effect from
a prior request, by wire transfer in immediately available funds to the account
of such Holder at such bank located in New York, New York having wire transfer
capability as may be designated by such Holder; provided, however, that the
final distribution in respect of any Certificate shall be made only as provided
in Section 9.01. The foregoing notwithstanding, any distributions made to Cede &
Co., as the nominee of the initial Clearing Agency, shall be made by wire
transfer of immediately available funds.
26
31
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; and
(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.
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 (i) shall not mature later than the
27
32
Business Day immediately preceding the Special Distribution Date relating to
such invested funds, (ii) (A) if such Eligible Investments have a maturity of
one month or less, such Eligible Investments (or the provider thereof) must have
a long term unsecured debt rating of at least A2 by Moody's or a certificate of
deposit rating of at least P-1 by Moody's, and (B) if such Eligible Investments
have a maturity of greater than one month, such Eligible Investments (or the
provider thereof) must have a long term unsecured debt rating of at least Aaa by
Moody's and a certificate of deposit rating of at least P-1 by Moody's. 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 gross negligence of the Certificate
Trustee. All income and earnings from such investments shall be distributed, if
and as received, on such Special Distribution Date as part of such Special
Payment and shall be treated as payments of interest on the Certificates.
If the rating of the Eligible Institution, which may be the Note
Trustee's Corporate Trust Office, fall below the rating requirements set forth
in clause (b)(i) of the definition of Eligible Institution, the Delaware
Trustee, on behalf of the Certificate Issuer, shall, within one month after
notice of such rating change, cause the Collection Account to be transferred to
an institution meeting the requirements set forth in clause (b)(i) of the
definition of Eligible Institution.
Section 4.05. Reduction in Principal. Any reduction in the principal
amount of any Certificate effected by any distribution in respect of principal
thereof shall be binding upon all Holders of such Certificate and of any
Certificate issued upon the registration or transfer thereof or in lieu thereof,
whether or not noted thereon.
ARTICLE V
DEFAULTS
Section 5.01. Events of Default.
(a) If any Event of Default, other than a breach of the Commonwealth
Pledge by The Commonwealth of Massachusetts under the Statute and Section 10.01
hereunder, 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.
28
33
(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 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(i), (ii) or (iii) of the Note Indenture, unless (i) the Certificate Trustee
determines that the amounts receivable from the Collateral are not sufficient to
pay in full the principal of and accrued interest on the Notes and all amounts
payable pursuant to clauses (i) through (iv) of Section 8.02(d) of the Note
Indenture and the Certificate Trustee obtains the written consent of Holders of
Certificates of each Class representing 66 2/3 percent of the aggregate
Outstanding Amount of the Certificates, or (ii) the Certificate Trustee obtains
the written consent of Holders of Certificates representing 100 percent of the
aggregate Outstanding Amount of the Certificates.
Section 5.02. Incidents of Sale of Notes. Upon any sale of the Notes
made either under the power of sale given under this Certificate Indenture or
otherwise for the enforcement of this Certificate Indenture, the following shall
be applicable:
(a) Certificateholders and Certificate Trustee May Purchase
Notes. Any Certificateholder, the Certificate Trustee in its individual
or any other capacity or any other Person (other than the Seller) may
bid for and purchase any of the Notes, and upon compliance with the
terms of sale, may hold, retain, possess and dispose of such Notes in
their own absolute right without further accountability.
(b) Receipt of Certificate Trustee Shall Discharge Purchaser.
The receipt of the Certificate Trustee, on behalf of the Certificate
Issuer, shall be a sufficient discharge to any purchaser for its
purchase money, and, after paying such purchase money and receiving
such receipt, such purchaser or its personal representative or assigns
shall not be obliged to see to the application of such purchase money,
or be in any way answerable for any loss, misapplication or
nonapplication thereof.
(c) Application of Moneys Received upon Sale. Any moneys
collected by the Certificate Issuer or the Certificate Trustee upon any
sale made either under the power of sale given by this Certificate
Indenture or otherwise for the enforcement of this Certificate
Indenture, shall be applied as provided in Section 4.02.
29
34
Section 5.03. Judicial Proceedings Instituted by Certificate Trustee;
Certificate Trustee May Bring Suit.
(a) If there shall be a failure to make payment of the principal of or
interest on any Note, then the Certificate Trustee in its own name, and as
trustee of an express trust, as holder of such Note, if directed in writing by
the Holders of a majority of the Outstanding Amount of the Certificates but
subject to the provisions of Article VI, shall, to the extent permitted by and
in accordance with the terms of the Notes, be entitled and empowered to
institute any suits, actions or proceedings at law, in equity or otherwise,
including the power to make a demand on the Note Trustee to take action under
the Note Indenture to enforce the Notes, for the collection of the sums so due
and unpaid on the Note and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
(b) If there shall be a breach of the Commonwealth Pledge by The
Commonwealth of Massachusetts, then the Certificate Trustee, in its own name and
as trustee of an express trust, as holder of the Notes, shall be, to the extent
permitted by state and federal law, entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, to enforce the
Commonwealth Pledge and to collect any monetary damages as a result of a breach
thereof, and may prosecute any such suit, action or proceeding to judgment or
final decree.
Section 5.04. Control by Certificateholders. The Holders of a majority
of the Outstanding Amount of the Certificates (or, if less than all Classes are
affected, the affected Class or Classes) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Certificate Trustee, or exercising any trust or power conferred on the
Certificate Trustee under this Certificate Indenture, including any right of the
Certificate Trustee as holder of the Notes of the corresponding Class or
Classes, in each case unless a different percentage is specified herein;
provided, however, that:
(a) such direction shall not be in conflict with any rule of
law or with this Certificate Indenture and would not involve the
Certificate Trustee in personal liability or expense;
(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.
30
35
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 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
Certificate or Classes 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. Upon any such direction, the Certificate Trustee
shall vote such percentage of the Notes of the corresponding Class held by the
Certificate Trustee as corresponds to the percentage of the aggregate
Outstanding Amount of the Certificates of such Class held by Holders who
directed the Certificate Trustee to waive such default or Note Event of Default
hereunder.
Upon any waiver that is effective under the terms of the Note Indenture
to waive such Note Event of Default, such Note Event of Default shall cease to
exist with respect to this Certificate Indenture, and, in the case of a default,
any Note Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Certificate Indenture and any written direction given
by the Certificate Trustee on behalf of such Certificateholders to the Note
Trustee or in respect of any Notes shall be annulled with respect thereto; but
no such waiver shall extend to any subsequent or other default or Note Event of
Default or impair any right consequent thereon.
Section 5.06. Right of Certificateholders To Receive Payments Not To Be
Impaired. Anything in this Certificate Indenture to the contrary
notwithstanding, including Section 5.07 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.02 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date,
Special Distribution Date or other date specified herein for the making of such
payment, shall not be impaired or affected without the consent of such
Certificateholder.
Section 5.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. 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, unless:
(a) 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;
(b) 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;
31
36
(c) 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;
(d) 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
(e) 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.
In the event the Certificate Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Certificates, each representing less than a majority of the Outstanding Amount
of the Certificates, the Certificate Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Certificate Indenture.
Section 5.08. Remedies Cumulative. No remedy given hereunder to the
Certificate Trustee or to any of the Certificateholders shall be exclusive of
any other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
ARTICLE VI
THE CERTIFICATE TRUSTEE
Section 6.01. Notice of Defaults. As promptly as practicable after, and
in any event within 30 days after, receipt by a Responsible Officer of the
Certificate Trustee of written notice or actual knowledge of the occurrence of
any default (as such term is defined below) hereunder, the Certificate Trustee
shall transmit by mail to the Certificate Issuer, the Note Trustee and the
Holders of Certificates in accordance with Section 313(c) of the Trust Indenture
Act, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default hereunder with
respect to any Class of Certificates arising from a default under the Note
Indenture in the payment of the principal of or interest on any Note, the
Certificate Trustee shall be fully protected in withholding such notice if and
so long as a trust committee of Responsible Officers of the Certificate Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders of the Certificates. For the purpose
32
37
of this Section, the term "default" means any event that is, or after notice or
lapse of time or both would become, a Note Event of Default with respect to such
Class of Certificates.
Section 6.02 Certain Rights of Certificate Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Certificate Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in reliance upon
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Certificate Issuer
mentioned herein shall be sufficiently evidenced by a Request,
accompanied by evidence reasonably satisfactory to the Certificate
Trustee that the Note Issuer has given its prior written approval of
such request or direction;
(c) whenever in the administration of this Certificate
Indenture the Certificate Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any
action hereunder, the Certificate Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate of the
Certificate Issuer;
(d) the Certificate Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Certificate Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Certificate
Indenture at the request or direction of any of the Certificateholders
pursuant to this Certificate Indenture, unless such Certificateholders
shall have offered to the Certificate Trustee reasonable security or
indemnity satisfactory to it against the cost, expenses (including
reasonable legal fees and expenses) and liabilities that might be
incurred by it in compliance with such request or direction;
(f) the Certificate Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(g) the Certificate Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the
Certificate Trustee shall not be responsible for any misconduct or
negligence on the part of, or for the supervision of, any agent,
attorney, custodian or nominee appointed with due care by it hereunder;
33
38
(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, gross negligence or bad faith;
(k) in the event that the Certificate Trustee is also acting
as Paying Agent, Authenticating Agent or Certificate Registrar
hereunder, the rights and protections afforded to the Certificate
Trustee pursuant to this Article VI shall also be afforded to such
Paying Agent, Authenticating Agent or Certificate Registrar;
(l) the Certificate Trustee shall not be charged with
knowledge of an Event of Default unless a Responsible Officer obtains
actual knowledge of such event or the Certificate Trustee receives
written notice of such event from the Certificate Issuer, the Note
Trustee, the Servicer or a majority of the Holders of Certificates of
the Class or Classes so affected; and
(m) without limiting its rights under bankruptcy law, when the
Certificate Trustee incurs expenses or renders services in connection
with the insolvency or bankruptcy of any party hereto or with the Basic
Documents to which it is a party, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy
or insolvency law.
Section 6.03. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates, except the execution
thereof and the certificates of authentication, shall not be taken as the
statements of the Certificate Trustee, and the Certificate Trustee assumes no
responsibility for their correctness. Except as set forth in Section 6.14, the
Certificate Trustee makes no representations as to the validity or sufficiency
of this Certificate Indenture, the Notes, any Basic Document or the
Certificates.
Section 6.04. May Hold Certificates. The Certificate Trustee, any
Paying Agent, any Certificate Registrar or any of their Affiliates or any other
agent, in their respective individual or any other capacity, may become the
owner or pledgee of Certificates and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Certificate Issuer, the Note
Issuer or
34
39
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, officers, directors, employees 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 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. The obligations of the Note Issuer to indemnify the Certificate Trustee
Indemnified Persons shall survive the termination of the Fee and Indemnity
Agreement, this Certificate Indenture and the resignation or removal of the
Certificate Trustee.
Notwithstanding anything to the contrary in this Certificate Indenture,
the Certificate Trustee shall have no recourse against the Certificate Issuer or
the Notes or payments thereon or proceeds thereof for payment of any amounts
required to be paid to the Certificate Trustee under this Section 6.06(b).
Section 6.07. Corporate Certificate Trustee Required; Eligibility.
(a) The Certificate Trustee shall at all times be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act, shall have a combined
capital and surplus of at least $50,000,000 and shall have a long-term debt
rating of at least A by 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, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 6.07, the combined capital and
surplus of such
35
40
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 Note Issuer and the Certificate Issuer
have received written confirmation from each of the Rating Agencies that no
lowering or withdrawal of the then current ratings of any Class of Certificates
will result from such appointment.
(b) The Certificate Trustee may resign at any time in the case of a
conflicting interest as determined in accordance with Section 6.07(b) by giving
written notice thereof to the Certificate Issuer, the Authorized Agents, the
Note Issuer and the Note Trustee. If an instrument of acceptance by a successor
Certificate Trustee shall not have been delivered to the Certificate Issuer and
the Certificate Trustee within 30 days after the giving of such notice of
resignation, the resigning Certificate Trustee may petition any court of
competent jurisdiction for the appointment of a successor Certificate Trustee.
(c) The Certificate Trustee may be removed at any time in the case of a
conflicting interest as determined in accordance with Section 6.07(b) by Act of
Certificateholders holding Certificates representing not less than 51 percent of
the Outstanding Amount of the Certificates delivered to the Certificate Trustee
and to the Certificate Issuer, the Note Issuer and the Note Trustee.
(d) Upon 30 days' written notice, the Certificate Trustee (i) may
resign with respect to the Certificates as a whole by giving such written notice
to the Certificate Issuer, the Authorized Agents, the Note Issuer and the Note
Trustee or (ii) may be removed with respect to the Certificates as a whole by
Act of Certificateholders holding Certificates representing not less than a
majority of the Outstanding Amount of Certificates delivered to the Certificate
Issuer, the Note Issuer and the Note Trustee. If an instrument of acceptance by
a successor Certificate Trustee with respect to the Certificates as a whole
shall not have been delivered to the Certificate Issuer, the Note Issuer and the
Note Trustee within 90 days after the giving of such notice of resignation or
Act by the Certificateholders as a whole for removal of the Certificate Trustee,
the Certificate Issuer may petition any court of competent jurisdiction for the
appointment of a successor Certificate Trustee with respect to the Certificates
as a whole.
36
41
(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 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 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;
then, in any case, (x) the Certificate Issuer may remove the Certificate Trustee
or (y) any Holder of Certificates who has been a bona fide Holder of
Certificates for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Certificate Trustee and the appointment of a successor Certificate
Trustee.
(f) If a Responsible Officer of the Certificate Trustee shall have
received written notice of an Avoidable Tax that has been or is likely to be
asserted, the Certificate Trustee shall promptly notify the Certificate Issuer
and the Note Issuer thereof and shall, within 30 days of such notification,
resign hereunder unless within such 30-day period the Certificate Trustee shall
have received notice that either the Certificate Issuer or the Note Issuer has
agreed to pay such tax. In such event, the Certificate Issuer (with the prior
written approval of the Note Issuer) shall promptly appoint a successor
Certificate Trustee in a jurisdiction where there are no Avoidable Taxes. As
used herein, an "Avoidable Tax" means a state or local tax: (i) upon (w) the
Certificate Issuer, (x) the Trust Property, (y) the Certificateholders or (z)
the Certificate Trustee for which the Certificate Trustee is entitled to seek
reimbursement from the Trust Property, and (ii) that would be avoided if the
Certificate Trustee were located in another state, or jurisdiction within a
state, within the United States. A tax shall not be an Avoidable Tax if either
the Certificate Issuer or the Note Issuer shall agree to pay, and shall pay,
such tax.
(g) If the Certificate Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Certificate Trustee for any reason, the Certificate Issuer (with the prior
written approval of the Note Issuer and the Agencies) shall promptly appoint a
successor Certificate Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Certificate Trustee shall be appointed by Act of the Certificateholders
representing not less than a majority of the Outstanding Amount of the
Certificates delivered to the Certificate Issuer, the Note Trustee and the
retiring Certificate Trustee, the successor Certificate Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Certificate Trustee and supersede the successor Certificate Trustee appointed as
provided above. If no successor Certificate Trustee shall have been so appointed
as provided above and accepted appointment in the manner hereinafter
37
42
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 Certificate
Issuer and the Agencies. Each notice shall include the name of such successor
Certificate Trustee and the address of the corporate trust office of such
successor Certificate Trustee.
(i) The Certificate Issuer shall notify the Rating Agencies and the
Agencies of any resignation and removal of the Certificate Trustee and
appointment of a successor Certificate Trustee under this Section 6.08.
Section 6.09. Acceptance of Appointment by Successor. Every successor
Certificate Trustee appointed hereunder shall execute, acknowledge and deliver
to the Certificate Issuer and to the retiring Certificate Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Certificate Trustee shall become effective and such successor
Certificate Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Certificate Trustee; but, on request of the Certificate Issuer or the successor
Certificate Trustee, such retiring Certificate Trustee shall execute and deliver
an instrument transferring to such successor Certificate Trustee all the rights,
powers and trusts of the retiring Certificate Trustee and shall duly assign,
transfer and deliver to such successor Certificate Trustee all property and
money held by such retiring Certificate Trustee hereunder. Upon request of any
such successor Certificate Trustee, the Certificate Issuer, the retiring
Certificate Trustee and such successor Certificate Trustee shall execute and
deliver any and all instruments containing such provisions as shall be necessary
or desirable to transfer and confirm to, and for more fully and certainly
vesting in, such successor Certificate Trustee all such rights, powers and
trusts. No Certificate Trustee hereunder shall be liable for the acts or
omissions of any successor Certificate Trustee.
No successor Certificate Trustee shall accept its appointment unless at
the time of such acceptance such successor Certificate Trustee shall be
qualified and eligible under this Article and any and all amounts due and
payable to the predecessor Certificate Trustee have been paid.
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Certificate Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Certificate Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Certificate Trustee, shall be the successor
of the Certificate Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Certificates shall have been authenticated, but not delivered, by
the Certificate Trustee then in office, any successor by merger, conversion or
consolidation to such
38
43
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 Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Asset-Backed Finance Unit. 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.
(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 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 and to the Certificate
Trustee. Upon
39
44
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 and the Note Trustee; and in each case the Certificate Trustee shall
mail notice of such appointment to all Certificateholders as their names and
addresses appear on the Certificate Register.
(e) Pursuant to the Fee and Indemnity Agreement, the Note Issuer has
agreed to pay, or cause to be paid, from time to time to each Authorized Agent
reasonable compensation for its services and to reimburse it for its reasonable
expenses; provided, however, that the Note Issuer shall have given prior consent
to the appointment of such Authorized Agent pursuant to the Fee and Indemnity
Agreement, and no Authorized Agent shall have any recourse against the
Certificate Issuer or the Trust Property for payment of such amounts.
Section 6.12. Money for Certificate Payments To Be Held in Trust.
(a) All moneys deposited with any Paying Agent for the purpose of any
payment on Certificates of any Class shall be deposited and held in trust for
the benefit of the Certificateholders of such Class entitled to such payment,
subject to the provisions of this Section. Moneys so deposited and held in trust
shall constitute a separate trust fund for the benefit of the Class of
Certificateholders with respect to which such money was deposited.
The Certificate Trustee may at any time, for the purpose of obtaining
the satisfaction and discharge of this Certificate Indenture or for any other
purpose, direct any Paying Agent to pay to the Certificate Trustee all sums held
in trust by such Paying Agent, such sums to be held by the Certificate Trustee
upon the same trusts as those upon which such sums were held by such Paying
Agent; and, upon such payment by any Paying Agent to the Certificate Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
(b) The Certificate Trustee will cause each Paying Agent other than the
Certificate Trustee to execute and deliver to the Certificate Trustee an
instrument in which such Paying Agent shall agree with the Certificate Trustee
(and, if the Certificate Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Certificates in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Certificate Trustee notice of any default under
this Certificate Indenture of which it has actual knowledge in the
making of any payment required to be
40
45
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 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.
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, authority and
legal right to execute, deliver and perform this Certificate Indenture
and the Basic Documents to which the Certificate Trustee is a party and
has taken all necessary action to authorize the execution, delivery,
and performance by it of this Certificate Indenture and such Basic
Documents; and
(c) when delivered by the Certificate Trustee, the
Certificates will have been duly executed by the Delaware Trustee on
behalf of the Certificate Issuer and duly authenticated by the
Certificate Trustee.
Section 6.15. Withholding Taxes; Information Reporting. The Certificate
Trustee, as trustee for the assets of a grantor trust, shall exclude and
withhold from each distribution of principal and interest and other amounts due
hereunder or under the Certificates any and all withholding taxes applicable
thereto as required by law. The Certificate Trustee agrees that it will act as
such withholding agent and, in connection therewith, whenever any present or
future taxes or similar
41
46
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.
Section 6.16. Obligations to Note Trustee and Delaware Trustee. It is
agreed by the parties hereto that the services of the Note Trustee and the
Delaware Trustee are an essential part of the transactions contemplated hereby.
Therefore, to the extent amounts payable under the Fee and Indemnity Agreement
to the Note Trustee and/or the Delaware Trustee are not paid when due, the
payment of such amounts shall be made by the Certificate Trustee and any amounts
so paid or to be paid by the Certificate Trustee shall constitute expenses of
the Certificate Trustee for which it is entitled to reimbursement under Section
6.06 of this Certificate Indenture and under Section 1(a) of the Fee and
Indemnity Agreement. Notwithstanding the foregoing, the Delaware Trustee and the
Note Trustee shall not have recourse against the Certificate Trustee with
respect to such amounts except to the extent the Certificate Trustee is
reimbursed under the Fee and Indemnity Agreement or realizes against the
Collateral under the Note Indenture or pursuant to any lien created by the
Statute or the Financing Order with respect to such amounts.
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;
42
47
(c) to cure any ambiguity or correct any mistake; or
(d) to qualify, if necessary, this Certificate Indenture
(including any supplemental certificate indenture) under the Trust
Indenture Act, or under any similar federal statute hereafter enacted,
and to add to this Certificate Indenture such other provisions as may
be expressly permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act as in effect at the date as of which this instrument was executed
or any corresponding provision in any similar federal statute hereafter
enacted.
Section 7.02. Supplemental Certificate Indentures With Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates representing not less than a majority of the aggregate Outstanding
Amount of Certificates of each Class affected thereby, by Act of said
Certificateholders delivered to the Certificate Issuer, the Note Trustee and the
Certificate Trustee, the Certificate Issuer (with the prior written approval of
the Note Issuer) may, and the Certificate Trustee (subject to Section 7.03)
shall, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Certificate Indenture or of modifying in any manner the
rights and obligations of the Holders of Certificates of each such Class under
this Certificate Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Certificateholder of each
Outstanding Certificate affected thereby:
(a) reduce in any manner the amount of, or delay the timing
of, any receipt by the Certificate Trustee of payments on the Notes or
distributions that are required to be made herein on any Certificate,
or change any date of payment on any Certificate, or change the place
of payment where, or the coin or currency in which, any Certificate is
payable, or impair the right to institute suit for the enforcement of
any such payment or distribution on or after the Distribution Date,
Special Distribution Date or other date specified herein applicable
thereto;
(b) permit the disposition of any Note in the Trust Property
except as permitted by this Certificate Indenture, or otherwise deprive
any Holder of Certificates of any Class of the benefit of the ownership
of the Notes of the corresponding Class in the Trust;
(c) reduce the percentage of the aggregate Outstanding Amount
of the Certificates of any Class that is required for any such
supplemental indenture, or reduce such percentage required for any
waiver or consent (of compliance with certain provisions of this
Certificate Indenture or certain defaults hereunder and their
consequences) provided for in this Certificate Indenture;
(d) modify any of the provisions of this Section, except to
increase any percentage set forth herein or to provide that certain
other provisions of this Certificate Indenture cannot be modified or
waived without the consent of the Holder of each Certificate affected
thereby; or
43
48
(e) adversely affect the status of the Trust as a grantor
trust for federal income tax purposes.
It shall not be necessary for any Act of Certificateholders under this
Section to approve the particular form of any proposed supplemental certificate
indenture, but it shall be sufficient if such Act shall approve the substance
thereof. The Certificate Issuer shall give each Rating Agency five Business Days
prior written notice of any such proposed supplemental certificate indenture.
Promptly after the execution by the Certificate Issuer and the Certificate
Trustee of any supplemental certificate indenture pursuant to this Section, the
Certificate Trustee shall mail to the Holders of the Certificates to which such
supplemental certificate indenture relates a notice setting forth in general
terms the substance of such supplemental certificate indenture. Any failure of
the Certificate Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
certificate indenture.
Section 7.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Certificate Trustee any document required to be executed by it
pursuant to the terms of Section 7.01 or 7.02 adversely affects any interest,
right, duty, immunity or indemnity in favor of the Certificate Trustee under
this Certificate Indenture, the Certificate Trustee may in its discretion
decline to execute such document.
Section 7.04. Execution of Supplemental Certificate Indentures. In
executing, or accepting the additional trusts created by, any supplemental
certificate indenture permitted by this Article or the modifications thereby of
the trusts created by this Certificate Indenture, the Certificate Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental certificate indenture
is authorized or permitted by this Certificate Indenture.
Section 7.05. Effect of Supplemental Certificate Indentures. Upon the
execution of any supplemental certificate indenture under this Article, this
Certificate Indenture shall be modified in accordance therewith, and such
supplemental certificate indenture shall form a part of this Certificate
Indenture for all purposes; and every Holder of any Certificate theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 7.06. Conformity with Trust Indenture Act. Every supplemental
certificate indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
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.
44
49
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 to which the
Certificate Issuer or the Certificate Trustee is a party, 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 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, the Certificateholders may not direct any such action to be taken
or direct whether or not to give or execute any such waiver, consent, amendment,
modification or supplement that is not pursuant to the original terms of the
Notes, unless the Certificate Trustee obtains an Opinion of Counsel at the
expense of the Certificate Issuer of independent tax counsel to the effect that
after any such action, waiver, consent, amendment, modification or supplement
the Trust will continue to be treated as a "grantor trust" for federal income
tax purposes. Provided such a request for Certificateholder direction shall have
been made, in directing any action or casting any vote or giving any consent as
the holder of the Notes, the Certificate Trustee shall vote or consent with
respect to such Notes in the same proportion as the Certificates of the
corresponding Class were actually voted by Acts of the Holders thereof delivered
to the Certificate Trustee prior to two Business Days before the Certificate
Trustee takes such action or casts such vote or gives such consent.
ARTICLE IX
SATISFACTION AND DISCHARGE
Section 9.01. Satisfaction and Discharge of Certificate Indenture. This
Certificate Indenture shall cease to be of further effect with respect to the
Certificates, and the Certificate Trustee, on reasonable demand of and at the
expense of the Certificate Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Certificate Indenture with
respect to the Certificates, upon the distribution to all Holders of
Certificates and the Certificate Trustee of all amounts required to be
distributed to them pursuant to this Certificate Indenture and the disposition
of all property held as part of the Trust Property. The Certificate Issuer shall
pay or provide for the payment of all remaining liabilities of the Certificate
Trustee, but solely from amounts payable by the Note Issuer under the Fee and
Indemnity Agreement.
45
50
Notice of any distribution pursuant to the paragraph above shall be
mailed promptly by the Certificate Trustee to Holders of Certificates then
outstanding. Such notice shall specify the Distribution Date or Special
Distribution Date, as the case may be, upon which the Holders of Certificates
may surrender their Certificates to the Certificate Trustee for payment of the
final distribution and cancellation. Such notice shall be mailed (a) if with
respect to a final distribution, as soon as practicable following receipt of
notice from the Note Trustee of a final payment on a corresponding Note, (b) if
with respect to a Special Payment other than a Special Payment constituting a
redemption, not earlier than the 60th day and not later than the 20th day next
preceding such final distribution or (c) if with respect to a Special Payment
constituting a redemption of Certificates resulting from a redemption of Notes,
then in accordance with the provisions of the relevant Section of Article IV
hereof. Such notice shall specify (a) the Distribution Date or Special
Distribution Date, as the case may be, upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of such
Certificates at the office or agency of the Certificate Trustee therein
specified, (b) the amount of any such proposed final payment and (c) that the
Record Date otherwise applicable to such Distribution Date or the Special Record
Date otherwise applicable to such Special Distribution Date, as the case may be,
is not applicable, payments being made only upon presentation and surrender of
the Certificates at the office or agency of the Certificate Trustee therein
specified. The Certificate Trustee shall give such notice to the Certificate
Registrar at the time such notice is given to Holders of Certificates. Upon
presentation and surrender of such Certificates, the Certificate Trustee shall
cause to be distributed to the Holders thereof amounts distributable thereon on
such Distribution Date or Special Distribution Date, as the case may be,
pursuant to Section 4.02.
In the event that all of the Holders of Certificates shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Certificate Trustee shall
give a second written notice to the remaining Holders of such Certificates to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. In the event that any money held by the Certificate
Trustee for the payment of distributions on the Certificates shall remain
unclaimed for two years (or such lesser time as the Certificate Trustee shall be
satisfied, after 60 days' notice from the Certificate Issuer (with the prior
written approval of the Note Issuer), is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect
thereto, the Certificate Trustee shall pay such money to the Note Trustee for
deposit into the collection account relating to the related Notes or, if such
collection account no longer exists, to the Note Issuer and the Certificate
Trustee or Note Issuer shall give written notice thereof to the Note Trustee,
the Note Issuer and the Certificate Issuer.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Commonwealth Pledge; Certificates and Notes Not
Obligation of The Commonwealth of Massachusetts, Agencies or Seller.
46
51
(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, the Certificate Issuer
and the Holders of the Certificates (the "Commonwealth Pledge") as follows:
(b) [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.
(c) 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.
(d) 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 for BEC Funding
LLC, which is an affiliate of Boston Edison. 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, purchase price
of, or interest on, the Certificates or the Notes, or to the payments in respect
of the Transition Property, nor are The Commonwealth of Massachusetts, the
Agencies or any other governmental agency or instrumentality in any manner
obligated to make any appropriation for the payment thereof.
Section 10.2. 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
47
52
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 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
and
48
53
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 BEC-1
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Floor 12 East
New York, New York 10286
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(with copies to the Agencies at the addresses listed herein)
if to the Certificate Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 12 East
New York, New York 10286
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Delaware Trustee, to:
The Bank of New York (Delaware)
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Floor 12 East
New York, New York 10286
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
49
54
if to the Note Issuer, to:
BEC Funding LLC
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Note Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 12 East
New York, New York 10286
Attention: Asset Backed Finance Unit
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Rating Agencies, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Surveillance
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
50
55
Duff & Xxxxxx Credit Rating Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Securities
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(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 shall be deemed to be given only when received by a
Responsible Officer of the Certificate Trustee.
Section 10.06. Governing Law. THIS CERTIFICATE INDENTURE SHALL BE
GOVERNED 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 thereof.
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.
51
56
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
(notwithstanding any other provision of this Certificate Indenture) payment need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on such first date, and 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.
52
57
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 BEC-1
By: THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Xxxxxx X. Laser
-----------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
Delaware Trustee,
By: /s/ Xxxxxx X. Laser
-----------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Certificate Trustee,
By: /s/ Xxxxxx X. Laser
-----------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
S-1
58
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
NO. [ ] $ [ ]
MASSACHUSETTS RRB SPECIAL PURPOSE TRUST BEC-1
CLASS [ ]
RATE REDUCTION CERTIFICATE
SCHEDULED FINAL
INTEREST RATE DISTRIBUTION DATE FINAL 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 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
BEC 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
A-1
59
agency or instrumentality or Boston Edison Company, a Massachusetts corporation
("Boston Edison"), 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 Boston Edison 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,
purchase price of, or interest on, this Certificate or the Underlying Note, or
to the payments in respect 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 BEC-1 (the "Trust") or registered
assigns. The Trust is created pursuant to a Declaration of Trust dated as of
July 28, 1999 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 July 29, 1999 (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 BEC-1 Rate Reduction Certificates,
Class [ ]" (herein called the "Class [ ] Certificates"). The Class [ ]
Certificates are one of a class of Certificates issued under the Certificate
Indenture (such Class [ ] 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 [ ] Certificate represents a
fractional undivided beneficial interest in the note of the corresponding class
(the "Underlying Note") issued by BEC 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-98-118, issued on April 2, 1999, as further clarified by the Order
on the Massachusetts Development Finance Agency's and the Massachusetts Health
and Educational Facilities Authority's Motion for Clarification dated May 21,
1999 (collectively, the "Financing Order"), representing the irrevocable right
of Boston Edison or its assignee to receive a certain
A-2
60
nonbypassable charge (as adjusted from time to time) from certain retail
customers of Boston Edison'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 on each March 15 and September 15 of each
year or, if any such day is not a Business Day, the next succeeding Business Day
(each, a "Distribution Date"), commencing on March 15, 2000 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.
(a) 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
A-3
61
Statute, The Commonwealth of Massachusetts, has pledged and agreed with the Note
Issuer, the Trust and the Holders (the "Commonwealth Pledge") as follows:
(b) [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
A-4
62
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.
A-5
63
IN WITNESS WHEREOF, the Delaware Trustee on behalf of the
Trust has caused this Certificate to be duly executed.
MASSACHUSETTS RRB SPECIAL
PURPOSE TRUST BEC-1
By: THE BANK OF NEW YORK (DELAWARE),
not in its individual
capacity but solely as Delaware
Trustee
By:
Name:
Title:
A-6
64
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, not in its
individual capacity but solely as
Certificate Trustee
By:
Name:
Title:
A-7
65
[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 thereof. 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
A-8
66
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.
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.
A-9
