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Exhibit 4.1
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BEC FUNDING LLC,
AS NOTE ISSUER
AND
THE BANK OF NEW YORK,
AS NOTE TRUSTEE
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NOTE INDENTURE
DATED AS OF [ ], 1999
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$ [ ]
BEC FUNDING LLC NOTES
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
Section 1.01. Definitions..................................................................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act...........................................10
Section 1.03. Rules of Construction.......................................................................10
ARTICLE II
The Notes
Section 2.01. Terms of the Notes..........................................................................11
Section 2.02. Form........................................................................................13
Section 2.03. Execution, Authentication and Delivery......................................................13
Section 2.04. Temporary Notes.............................................................................13
Section 2.05. Registration; Registration of Transfer and Exchange.........................................14
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes..................................................15
Section 2.07. Persons Deemed Owner........................................................................16
Section 2.08. Payment of Principal and Interest; Interest on Overdue Principal; Principal and
Interest Rights Preserved...................................................................16
Section 2.09. Cancellation................................................................................17
Section 2.10. Authentication and Delivery of Notes........................................................17
Section 2.11. Release of Collateral.......................................................................22
ARTICLE III
Covenants
Section 3.01. Payment of Principal and Interest...........................................................22
Section 3.02. Maintenance of Office or Agency.............................................................22
Section 3.03. Money for Payments To Be Held in Trust......................................................22
Section 3.04. Existence...................................................................................24
Section 3.05. Protection of Collateral....................................................................24
Section 3.06. Opinions as to Collateral...................................................................24
Section 3.07. Performance of Obligations; Servicing; Commission Filings...................................25
Section 3.08. Negative Covenants..........................................................................27
Section 3.09. Annual Statement as to Compliance...........................................................27
Section 3.10. Note Issuer May Consolidate, etc............................................................28
Section 3.11. Successor or Transferee.....................................................................29
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Section 3.12. No Other Business...........................................................................29
Section 3.13. No Borrowing................................................................................29
Section 3.14. Servicer's Obligations......................................................................30
Section 3.15. No Additional Notes.........................................................................30
Section 3.16. Guarantees, Loans, Advances and Other Liabilities...........................................30
Section 3.17. Capital Expenditures........................................................................30
Section 3.18. Non-Routine Periodic Adjustment.............................................................30
Section 3.19. Restricted Payments.........................................................................30
Section 3.20. Notice of Events of Default.................................................................30
Section 3.21. Further Instruments and Acts................................................................30
ARTICLE IV
Satisfaction and Discharge; Defeasance
Section 4.01. Satisfaction and Discharge of Note Indenture; Defeasance....................................31
Section 4.02. Conditions to Defeasance....................................................................32
Section 4.03. Application of Trust Money..................................................................33
Section 4.04. Repayment of Moneys Held by Paying Agent....................................................33
ARTICLE V
Remedies
Section 5.01. Events of Default...........................................................................33
Section 5.02. Acceleration of Maturity; Rescission and Annulment..........................................35
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Note Trustee........................35
Section 5.04. Remedies; Priorities........................................................................37
Section 5.05. Optional Preservation of the Collateral.....................................................38
Section 5.06. Limitation of Suits.........................................................................38
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest.......................39
Section 5.08. Restoration of Rights and Remedies..........................................................39
Section 5.09. Rights and Remedies Cumulative..............................................................39
Section 5.10. Delay or Omission Not a Waiver..............................................................40
Section 5.11. Control by Noteholders......................................................................40
Section 5.12. Waiver of Past Defaults.....................................................................40
Section 5.13. Undertaking for Costs.......................................................................41
Section 5.14. Waiver of Stay or Extension Laws............................................................41
Section 5.15. Action on Notes.............................................................................41
Section 5.16. Performance and Enforcement of Certain Obligations..........................................41
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ARTICLE VI
The Note Trustee
Section 6.01. Duties of Note Trustee......................................................................42
Section 6.02. Rights of Note Trustee......................................................................43
Section 6.03. Individual Rights of Note Trustee...........................................................44
Section 6.04. Note Trustee's Disclaimer...................................................................44
Section 6.05. Notice of Defaults..........................................................................44
Section 6.06. Reports by Note Trustee to Holders..........................................................44
Section 6.07. Compensation and Indemnity..................................................................45
Section 6.08. Replacement of Note Trustee.................................................................45
Section 6.09. Successor Note Trustee by Merger............................................................46
Section 6.10. Appointment of Co-Trustee or Separate Trustee...............................................47
Section 6.11. Eligibility; Disqualification...............................................................48
Section 6.12. Preferential Collection of Claims Against Note Issuer.......................................48
Section 6.13. Representations and Warranties of Note Trustee..............................................48
ARTICLE VII
Noteholders' Lists and Reports
Section 7.01. Note Issuer To Furnish Note Trustee Names and Addresses of Noteholders......................48
Section 7.02. Preservation of Information; Communications to Noteholders..................................49
Section 7.03. Reports by Note Issuer......................................................................49
Section 7.04. Reports by Note Trustee.....................................................................49
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01. Collection of Money.........................................................................50
Section 8.02. Collection Account..........................................................................50
Section 8.03. General Provisions Regarding the Collection Account.........................................53
Section 8.04. Release of Collateral.......................................................................54
Section 8.05. Opinion of Counsel..........................................................................54
Section 8.06. Reports by Independent Accountants..........................................................55
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ARTICLE IX
Supplemental Note Indentures
Section 9.01. Supplemental Note Indentures Without Consent of Noteholders.................................55
Section 9.02. Supplemental Note Indentures with Consent of Noteholders....................................56
Section 9.03. Execution of Supplemental Note Indentures...................................................58
Section 9.04. Effect of Supplemental Note Indenture.......................................................58
Section 9.05. Conformity with Trust Indenture Act.........................................................58
ARTICLE X
Redemption of Notes
Section 10.01. Optional Redemption by Note Issuer..........................................................58
Section 10.02. Form of Optional Redemption Notice..........................................................59
Section 10.03. Notes Payable on Optional Redemption Date or Payment Date...................................59
Section 10.04. Mandatory Redemption by Note Issuer.........................................................59
Section 10.05. Form of Mandatory Redemption Notice.........................................................60
Section 10.06. Notes Payable on Mandatory Redemption Date or Payment Date..................................60
ARTICLE XI
Miscellaneous
Section 11.01. Compliance Certificates and Opinions, etc...................................................60
Section 11.02. Form of Documents Delivered to Note Trustee.................................................62
Section 11.03. Acts of Noteholders.........................................................................63
Section 11.04. Notices, etc................................................................................63
Section 11.05. Notices to Noteholders; Waiver..............................................................64
Section 11.06. Conflict with Trust Indenture Act...........................................................64
Section 11.07. Effect of Headings and Table of Contents....................................................65
Section 11.08. Successors and Assigns......................................................................65
Section 11.09. Separability................................................................................65
Section 11.10. Benefits of Note Indenture..................................................................65
Section 11.11. Legal Holidays..............................................................................65
Section 11.12. GOVERNING LAW...............................................................................65
Section 11.13. Counterparts................................................................................65
Section 11.14. Recording of Note Indenture.................................................................65
Section 11.15. Trust Obligation............................................................................66
Section 11.16. No Recourse to Note Issuer..................................................................66
Section 11.17. Inspection..................................................................................66
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SIGNATURE PAGE..................................................................................................S-1
SCHEDULE A -- Expected Amortization Schedule
SCHEDULE B -- Required Overcollateralization Level Schedule
EXHIBIT A-1 -- Form of Sale Agreement
EXHIBIT A-2 -- Form of Servicing Agreement
EXHIBIT B -- Form of Note
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NOTE INDENTURE dated as of [ ], 1999, between BEC FUNDING LLC, a
Delaware limited liability company (the "Note Issuer"), and THE BANK OF NEW
YORK, a New York banking corporation, as trustee (the "Note Trustee").
RECITALS
The Note Issuer has duly authorized the execution and delivery of this Note
Indenture to provide for the issuance of its Notes with an aggregate principal
amount of $[ ] and the Note Issuer and the Note Trustee are executing and
delivering this Note Indenture in order to provide for the issuance of the
Notes.
GRANTING CLAUSE
The Note Issuer hereby Grants to the Note Trustee at the Issuance Date, as
Note Trustee for the benefit of the Holders of the Notes, all of the Note
Issuer's right, title and interest in and to (a) the Transition Property
transferred by the Seller to the Note Issuer pursuant to the Sale Agreement and
all proceeds thereof, (b) the Sale Agreement, (c) the Servicing Agreement, (d)
the Administration Agreement, (e) the Collection Account (including all
subaccounts thereof) and all amounts or investment property on deposit therein
or credited thereto from time to time, (f) all other property of whatever kind
owned from time to time by the Note Issuer, including accounts, general
intangibles, equipment and inventory, (g) the security interest with respect to
the Transition Property granted by the Seller to the Note Issuer, (h) all
present and future claims, demands, causes and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind, and
other forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of any of
the foregoing and (i) all proceeds of the foregoing (collectively, the
"Collateral"; it being understood that the following do not constitute
Collateral: (i) amounts required to be released pursuant to or contemplated in
the terms hereof, including net investment earnings on the Capital Subaccount
that are required to be released to the Note Issuer pursuant to Article VIII,
(ii) proceeds from the sale of the Notes required to pay costs of issuance with
respect to the Notes or the Certificates as set forth on the flow of funds
memorandum delivered on the Issuance Date (together with any interest earnings
thereon) [and (iii), amounts payable to the Note Trustee, the Certificate
Trustee and the Delaware Trustee under this Note Indenture, the Certificate
Indenture and the Fee and Indemnity Agreement] it being understood that such
amounts described in clauses (i), (ii) and (iii) above shall not be subject to
Section 3.16.
The foregoing Grant is made in trust to secure the payment of principal of,
interest on, and any other amounts owing in respect of, the Notes equally and
ratably without prejudice, priority or distinction, except as expressly provided
in this Note Indenture, and to secure compliance with the provisions of this
Note Indenture with respect to the Notes, all as provided in this Note
Indenture. This Note 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.
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The Note Trustee, as trustee on behalf of the Holders of the Notes,
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 Notes are to be issued, countersigned and delivered and that all of the
Collateral is to be held and applied, subject to the further covenants,
conditions, releases, uses and trusts hereinafter set forth, and the Note
Issuer, for itself and any successor, does hereby covenant and agree to and with
the Note Trustee and its successors in said trust, for the benefit of the
Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01. (a) DEFINITIONS. Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Note Indenture.
"ACT" has the meaning specified in Section 11.03(a).
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as of
[ ], 1999, between Boston Edison Company, as Administrator, and the Note
Issuer, as the same may be amended and supplemented from time to time.
"ADMINISTRATOR" means Boston Edison Company, a Massachusetts corporation,
or any successor Administrator under the Administration Agreement.
"AFFILIATE" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGENCIES" means collectively the Massachusetts Development Finance Agency
and the Massachusetts Health and Educational Facilities Authority.
"AUTHORIZED OFFICER" means, with respect to the Note Issuer, any officer of
the Note Issuer who is authorized to act for the Note Issuer in matters relating
to the Note Issuer and who is identified on the list of Authorized Officers
delivered by the Note Issuer to the Note Trustee on the Issuance Date (as such
list may be modified or supplemented by the Note Issuer from time to time
thereafter).
"BASIC DOCUMENTS" means, collectively, this Note Indenture, the Certificate
Indenture, the Declaration of Trust, the Sale Agreement, the Servicing
Agreement, the Administration
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Agreement, the Note Purchase Agreement, the Fee and Indemnity Agreement and the
Underwriting Agreement.
"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.
"CAPITAL SUBACCOUNT" has the meaning set forth in Section 8.02(a).
"CERTIFICATE ISSUER" has the meaning set forth in the Certificate
Indenture.
"CERTIFICATE INDENTURE" means the Certificate Indenture dated as of
[ ], 1999, between the Certificate Issuer, the Delaware Trustee and the
Certificate Trustee, as the same may be further amended and supplemented from
time to time.
"CERTIFICATE TRUSTEE" means the Person acting as certificate trustee under
the Certificate Indenture.
"CERTIFICATES" has the meaning set forth in the Certificate Indenture.
"CLASS" means any one of the classes of Notes.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"COLLATERAL" has the meaning specified in the Granting Clause of this Note
Indenture.
"COLLECTION ACCOUNT" has the meaning specified in Section 8.02(a).
"CORPORATE TRUST OFFICE" means the principal office of the Note Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Note 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 Note Trustee may designate
from time to time by notice to the Noteholders and the Note Issuer, or the
principal corporate trust office of any successor Note Trustee (the address of
which the successor Note Trustee will notify the Noteholders and the Note
Issuer).
"COVENANT DEFEASANCE OPTION" has the meaning specified in Section 4.01(b).
"DECLARATION OF TRUST" has the meaning set forth in the Certificate
Indenture.
"DEFAULT" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"DELAWARE TRUSTEE" means the Person acting as Delaware Trustee under the
Declaration of Trust and the Certificate Indenture.
"DTC AGREEMENT" has the meaning set forth in the Certificate Indenture.
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"DTE" means the Massachusetts Department of Telecommunications and Energy
and any successor thereto.
"DUFF & XXXXXX" means Duff & Xxxxxx Credit Rating Co. or its successor.
"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 Note
Trustee; PROVIDED, HOWEVER, that an account with the Note Trustee will only be
an Eligible Deposit Account if it is a segregated trust account 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), which (i) has either (A) a long-term unsecured debt rating of AA by
Standard & Poor's and Aa2 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 Note Trustee may be considered an Eligible Institution for the purposes of
clause (a) of the definition of Eligible Deposit Account.
"ELIGIBLE INVESTMENTS" mean instruments or investment property which
evidence:
(a) direct obligations of, or obligations fully and unconditionally
guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits, certificates of deposit or
bankers' acceptances of depository institutions meeting the requirements of
clause (b) of the definition of Eligible Institution;
(c) 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;
(d) 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 Note
Trustee or any of its Affiliates is investment manager or advisor);
(e) 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; and
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(f) any other investment permitted by each of the Rating Agencies,
in each case which mature on or before the Business Day preceding the next
Payment Date.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPECTED AMORTIZATION SCHEDULE" means, with respect to each Class of
Notes, the schedule attached as Schedule A hereto.
"FDIC" means the Federal Deposit Insurance Corporation or any successor.
"FEE AND INDEMNITY AGREEMENT" means the fee and indemnity agreement dated
as of [ ], 1999, among the Note Issuer, the Delaware Trustee, the
Certificate Trustee and the Agencies..
"FINAL MATURITY DATE" means, with respect to any Class of Notes, the Final
Maturity Date therefor.
"FITCH" means Fitch IBCA, Inc. or its successor.
"GENERAL SUBACCOUNT" has the meaning set forth in Section 8.02(a).
"GRANT" means mortgage, pledge, collaterally assign and xxxxx x xxxx upon
and a security interest pursuant to this Note Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the Granting party
thereunder, including after an Event of Default which is continuing the
immediate and continuing right to claim for, collect, receive and give receipt
for payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"INDEPENDENT" means, when used with respect to any specified Person, that
the Person (a) is in fact independent of the Note Issuer, any other obligor upon
the Notes, the Seller, the Servicer and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Note Issuer, any such other obligor, the
Seller, the Servicer or any Affiliate of any of the foregoing Persons and (c) is
not connected with the Note Issuer, any such other obligor, the Seller, the
Servicer or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be delivered to
the Note Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.01, made by an Independent
appraiser or other expert appointed by an Issuer Order and consented to by the
Note Trustee, and such opinion or certificate shall state
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that the signer has read the definition of "Independent" in this Note Indenture
and that the signer is Independent within the meaning thereof.
"ISSUANCE DATE" has the meaning set forth in Section 2.01(c)(i).
"ISSUER ORDER" and "ISSUER REQUEST" means a written order or request signed
in the name of the Note Issuer by any one of its Authorized Officers and
delivered to the Note Trustee.
"LEGAL DEFEASANCE OPTION" has the meaning specified in Section 4.01(b).
"MANDATORY REDEMPTION DATE" has the meaning specified in Section 10.04.
"MANDATORY REDEMPTION PRICE" has the meaning specified in Section 10.04.
"MINIMUM DENOMINATION" means $1,000 or any integral multiple thereof.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor.
"NOTEHOLDER" or "HOLDER" means the Person in whose name a Note is
registered on the Note Register.
"NOTE INDENTURE" or "THIS NOTE INDENTURE" means this instrument as
originally executed and, as from time to time supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, as so supplemented or amended, or both, and shall include the
forms and terms of the Notes established hereunder.
"NOTE INTEREST RATE" has the meaning specified in Section 2.01(b).
"NOTE ISSUER" means the party named as such in this Note Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the Trust Indenture Act, each
other obligor on the Notes.
"NOTE PURCHASE AGREEMENT" has the meaning set forth in the Certificate
Indenture.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings specified
in Section 2.05.
"NOTES" has the meaning specified in Section 2.01(a).
"NOTE TRUSTEE" means The Bank of New York, a New York banking corporation,
as Note Trustee under this Note Indenture, or any successor Note Trustee under
this Note Indenture.
"OFFICER'S CERTIFICATE" means a certificate signed by any Authorized
Officer of the Note Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to
the Note Trustee.
"OPERATING EXPENSES" means all fees, costs and expenses of, and indemnities
owed by, the Note Issuer, including all amounts owed by the Note Issuer to the
Note Trustee, the Certificate Issuer, the Certificate Trustee, the Delaware
Trustee and any fees payable to the
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Agencies with respect to the issuance of any Certificates, the Servicing Fee,
the Administration Fee, any fees, costs and expenses payable or reimbursable by
the Note Issuer to the Administrator and legal and accounting fees, costs and
expenses of the Note Issuer and the Certificate Issuer.
"OPINION OF COUNSEL" means one or more written opinions of counsel who may,
except as otherwise expressly provided in this Note Indenture, be an employee of
or counsel to the Note Issuer and who shall be reasonably satisfactory to the
Note Trustee, and which opinion or opinions shall be addressed to the Note
Trustee, as trustee, shall comply with any applicable requirements of Section
11.01, and shall be in form and substance reasonably satisfactory to the Note
Trustee.
"OPTIONAL REDEMPTION DATE" means the Payment Date specified by the Note
Issuer for the redemption of the Notes pursuant to Section 10.01.
"OPTIONAL REDEMPTION PRICE" has the meaning specified in Section 10.01.
"OUTSTANDING" means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Note Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Note Trustee or
any Paying Agent in trust for the Holders of such Notes (PROVIDED, HOWEVER,
that if such Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Note Indenture or provision made therefor,
reasonably satisfactory to the Note Trustee); and
(iii) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Note Indenture unless
proof satisfactory to the Note Trustee is presented that any such Notes are
held by a bona fide purchaser;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes or any Class thereof have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Note Issuer, any other obligor upon the
Notes, 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 Note Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes that the
Note Trustee actually knows to be so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Note Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Note
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of
the foregoing Persons.
"OUTSTANDING AMOUNT" means the aggregate principal amount of all Notes or,
if the context requires, all Notes of a Class, Outstanding at the date of
determination.
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"OVERCOLLATERALIZATION SUBACCOUNT" has the meaning specified in Section
8.02(a).
"PAYING AGENT" means the Note Trustee or any other Person that meets the
eligibility standards for the Note Trustee specified in Section 6.11 and is
authorized by the Note Issuer to make payment of principal of or interest on the
Notes on behalf of the Note Issuer.
"PAYMENT DATE" has the meaning specified in Section 2.01(c)(ii).
"PERSON" means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"PREDECESSOR NOTE" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"PROCEEDING" means any suit in equity, action at law or other judicial or
administrative proceeding.
"PROJECTED PRINCIPAL BALANCE" means, as of any Payment Date on any Class of
Notes, the sum of the projected outstanding principal amount of such Class of
Notes for such Payment Date set forth in the Expected Amortization Schedule.
"RATING AGENCY" means, collectively, Moody's, Standard & Poor's, Fitch and
Duff & Xxxxxx. If no such organization or successor is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating organization
or other comparable Person designated by the Note Issuer, notice of which
designation shall be given to the Note Trustee, the Certificate Trustee and the
Servicer.
"RATING AGENCY CONDITION" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Servicer, the Note Issuer, the
Note Trustee, the Agencies and the Certificate Trustee in writing that such
action will not result in a reduction or withdrawal of the then current rating
by such Rating Agency of any Class of the Notes or any Class of the
Certificates.
"RECORD DATE" means, with respect to a Payment Date, Optional Redemption
Date or Mandatory Redemption Date, the close of business on the last day of the
calendar month preceding the calendar month in which such Payment Date, Optional
Redemption Date or Mandatory Redemption Date occurs.
"REGISTERED HOLDER" means the Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"REPURCHASE DATE" has the meaning specified in the Sale Agreement.
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"REQUIRED CAPITAL LEVEL" means, as of any Payment Date, the sum of .50
percent of the initial principal amount of the Notes.
"REQUIRED OVERCOLLATERALIZATION LEVEL" means, as of any Payment Date, the
amount required to be on deposit in the Overcollateralization Subaccount as
specified in Schedule B hereto.
"RESERVE SUBACCOUNT" has the meaning specified in Section 8.02(a).
"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 Note 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.
"SALE AGREEMENT" means the Transition Property Purchase and Sale Agreement
dated as of [ ], 1999, between the Note Issuer and the Seller, in the form
of Exhibit A-1, as amended and supplemented from time to time.
"SCHEDULED MATURITY DATE" means, with respect to any Class of Notes, the
Scheduled Maturity Date therefor, as specified in Section 2.01(b).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SEMIANNUAL INTEREST" has the meaning specified in Section 2.01(c)(iv).
"SEMIANNUAL PRINCIPAL" means, with respect to any Payment Date on any Class
of Notes, the excess, if any, of the Outstanding Amount of such Class of Notes
over the outstanding principal balance of such Class of Notes specified for such
Payment Date in the Expected Amortization Schedule.
"SERVICING AGREEMENT" means the Transition Property Servicing Agreement
dated as of [ ], 1999, between the Note Issuer and the Servicer, in the
form of Exhibit A-2, as amended and supplemented from time to time.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor.
"STATE" means any one of the 50 states of the United States of America or
the District of Columbia.
"STATUTE" means Chapter 164 of the Massachusetts Acts of 1997.
"SUCCESSOR SERVICER" has the meaning specified in Section 3.07(e).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
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"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the Note Issuer's option.
(b) Except as otherwise specified herein or as the context may otherwise
require, the following terms have the respective meanings set forth in the
Servicing Agreement as in effect on the Issuance Date for all purposes of this
Note Indenture, and the definitions of such terms are equally applicable both to
the singular and plural forms of such terms:
Section of
Term Servicing Agreement
--------------------------------------------------------- -------------------
Advice Letter............................................ Section 1.01
Administration Fee....................................... Section 1.01
Financing Order.......................................... Section 1.01
Non-Routine Periodic Adjustment.......................... Section 1.01
Overcollateralization Amount............................. Section 1.01
Principal Balance........................................ Section 1.01
RTC Charge............................................... Section 1.01
RTC Charge Collections................................... Section 1.01
Seller................................................... Section 1.01
Servicer................................................. Section 1.01
Servicer Default......................................... Section 1.01
Servicing Fee............................................ Section 1.01
Transition Property...................................... Section 1.01
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Note Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Note
Indenture. The following Trust Indenture Act terms used in this Note Indenture
have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Note Indenture.
"indenture trustee" or "institutional trustee" means the Note Trustee.
"obligor" on the indenture securities means the Note Issuer and any other
obligor on the indenture securities.
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All other Trust Indenture Act terms used in this Note Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by Commission rule have the meanings assigned to them
by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(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 Note Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(vii) all references in this Note Indenture to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Note Indenture;
ARTICLE II
THE NOTES
---------
SECTION 2.01. TERMS OF THE NOTES.
(a) AUTHORIZATION; DESIGNATION. The issuance of the Notes in an aggregate
initial principal amount of $[ ] is hereby authorized and the Notes
shall be designated as the BEC Funding LLC Notes (the "Notes"), and further
denominated as Classes A-[ ] through A-[ ].
(b) INITIAL PRINCIPAL AMOUNT; NOTE INTEREST RATE; SCHEDULED MATURITY DATE;
FINAL MATURITY DATE. The Notes of each Class shall have the initial principal
amount, bear interest at the rates per annum and shall have Scheduled Maturity
Dates and Final Maturity Dates as set forth below:
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Initial Principal Note Interest Scheduled Final Maturity
Class Amount Rate Maturity Date Date
----- ----------------- ------------- ------------- --------------
A-1 $ %
...
The Note Interest Rate shall be computed on the basis of a 360-day year of
twelve 30-day months.
The Notes shall be issuable in not less than Minimum Denominations.
(c) AUTHENTICATION DATE; PAYMENT DATES; EXPECTED AMORTIZATION SCHEDULE FOR
PRINCIPAL; SEMIANNUAL INTEREST.
(i) AUTHENTICATION DATE. The Notes that are authenticated and
delivered by the Note Trustee to or upon the order of the Note Issuer on [
] 1999 (the "Issuance Date") shall have as their date of authentication [
], 1999.
(ii) PAYMENT DATES. The Payment Dates for the Notes shall be
September 15 and March 15 of each year or, if any such date is not a
Business Day, the next succeeding Business Day, commencing on March 15,
2000 and continuing until the earlier of repayment of the Notes in full or
the Final Maturity Date for Class A-[ ] of the Notes.
(iii) EXPECTED AMORTIZATION SCHEDULE FOR PRINCIPAL. Unless an
Event of Default shall have occurred and be continuing and the unpaid
principal amount of all Notes and accrued interest thereon has been
declared to be due and payable, on each Payment Date, the Note Trustee
shall pay to the Noteholders of record as of the related Record Date
amounts payable pursuant to Section 8.02(d) as principal, in the following
order and priority: [(1) to the holders of the Class A-1 Notes, until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;
(2) to the holders of the Class A-2 Notes, until the Outstanding Amount of
such Class of Notes thereof has been reduced to zero; (3) to the holders of
the Class A-3 Notes, until the Outstanding Amount of such Class of Notes
thereof has been reduced to zero; (4) to the holders of the Class A-4
Notes, until the Outstanding Amount of such Class of Notes thereof has been
reduced to zero; (5) to the holders of the Class A-5 Notes until the
Outstanding Amount of such Class of Notes thereof has been reduced to zero;
(6) to the holders of the Class A-6 Notes, until the Outstanding Amount of
such Class of Notes thereof has been reduced to zero; and (7) to the
holders of the Class A-7 Notes until the Outstanding Amount of such Class
of Notes thereof has been reduced to zero]; PROVIDED, HOWEVER, that in no
event shall a principal payment pursuant to this Section 2.01(c)(iii) on
any Class on a Payment Date be greater than the amount that reduces the
Outstanding Amount of such Class of Notes to the amount specified in the
Expected Amortization Schedule.
(iv) SEMIANNUAL INTEREST. Semiannual Interest will be payable on
each Class of Notes on each Payment Date in an amount equal to one-half of
the product of (i) the applicable Note Interest Rate and (ii) the
Outstanding Amount of the related Class of
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Notes as of the close of business on the preceding Payment Date after
giving effect to all payments of principal made to the holders of the
related Class of Notes on such preceding Payment Date; PROVIDED, HOWEVER,
that with respect to the initial Payment Date or, if no payment has yet
been made, interest on the outstanding principal balance will accrue from
and including the Issuance Date to, but excluding, that Payment Date.
SECTION 2.02. FORM. The Notes and the Note Trustee's certificate of
authentication shall be in substantially the forms set forth in Exhibit B, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Note Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of such Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
The terms of the Notes set forth in Exhibit B are part of the terms of this
Note Indenture.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Note Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Note Issuer shall bind the Note Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Note Indenture, the Note Issuer may deliver Notes executed by the Note Issuer to
the Note Trustee pursuant to an Issuer Order for authentication; and the Note
Trustee shall authenticate and deliver such Notes as in this Note Indenture
provided and not otherwise.
No Note shall be entitled to any benefit under this Note Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Note Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.04. TEMPORARY NOTES. Pending the preparation of definitive Notes,
the Note Issuer may execute, and upon receipt of an Issuer Order the Note
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Note Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
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If temporary Notes are issued, the Note Issuer will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Note Issuer to
be maintained as provided in Section 3.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Note Issuer
shall execute and the Note Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of Minimum Denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Note Indenture as definitive Notes.
SECTION 2.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The Note
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Note Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Note Trustee shall be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Note Issuer shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Note Trustee is appointed by the Note Issuer as
Note Registrar, the Note Issuer will give the Note Trustee prompt written notice
of the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Register, and the Note Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof,
and the Note Trustee shall have the right to rely upon a certificate executed on
behalf of the Note Registrar by a Responsible Officer thereof as to the names
and addresses of the Holders of the Notes and the principal amounts and number
of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Note Issuer to be maintained as provided in Section 3.02, the Note
Issuer shall execute, and the Note Trustee shall authenticate and the Noteholder
shall obtain from the Note Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any Minimum Denominations, of a like Class
and aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in any
Minimum Denominations, of a like Class and aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Note Issuer shall execute, and the
Note Trustee shall authenticate and the Noteholder shall obtain from the Note
Trustee, the Notes which the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Note Issuer, evidencing the same debt, and
entitled to the same benefits under this Note Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by (a) a written
instrument of transfer in form satisfactory to the Note Trustee duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an institution which is a member of one of the
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following recognized Signature Guaranty Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in
such other guarantee program acceptable to the Note Trustee, and (b) such other
documents as the Note Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Note Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.04 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Note Issuer
shall not be required to make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Note Trustee, or the Note Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, and
(ii) there is delivered to the Note Trustee such security or indemnity as may be
required by it to hold the Note Issuer and the Note Trustee harmless, then, in
the absence of notice to the Note Issuer, the Note Registrar or the Note Trustee
that such Note has been acquired by a protected purchaser, the Note Issuer shall
execute and, upon its request, the Note Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note of like Class, tenor and principal amount, bearing a
number not contemporaneously outstanding; PROVIDED, HOWEVER, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, the Note Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Optional
Redemption Date or Mandatory Redemption Date, as applicable, without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Note
Issuer and the Note Trustee shall be entitled to recover such replacement Note
(or such payment) from the Person to whom it was delivered or any Person taking
such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Note Issuer or
the Note Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Note
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Note Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Note Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time
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enforceable by anyone, and shall be entitled to all the benefits of this Note
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.07. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Note Issuer, the Note Trustee and any
agent of the Note Issuer or the Note Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such Note be overdue,
and neither the Note Issuer, the Note Trustee nor any agent of the Note Issuer
or the Note Trustee shall be affected by notice to the contrary.
SECTION 2.08. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST ON OVERDUE
PRINCIPAL; PRINCIPAL AND INTEREST RIGHTS PRESERVED.
(a) Any installment of interest or principal payable on any Note which is
punctually paid or duly provided for by the Note Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date for such Payment Date, by
check mailed first-class, postage prepaid to such Person's address as it appears
on the Note Register on such Record Date, except that with respect to Notes
registered on the Record Date in the name of the Certificate Trustee payments
will be made by wire transfer in immediately available funds to the account
designated by the Certificate Trustee and except for the final installment of
principal payable with respect to such Note on a Payment Date which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.03 hereof.
(b) The principal of each Note of each Class shall be paid, to the extent
funds are available therefor in the Collection Account, in installments on each
Payment Date specified in Section 2.01. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if the Note Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Notes have declared
the Notes to be immediately due and payable in the manner provided in Section
5.02. All payments of principal on the Notes shall be made pro rata to the
Noteholders entitled thereto. The Note Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding
the Payment Date on which the Note Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
no later than five days prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section
10.02.
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(c) If the Note Issuer defaults in a payment of interest on the Notes when
due, the Note Issuer shall pay such defaulted interest (plus interest on such
defaulted interest at the applicable Note Interest Rate to the extent lawful).
The Note Issuer may pay such defaulted interest (plus interest on such defaulted
interest) to the Persons who are Noteholders on a subsequent special record
date, which date shall be at least five Business Days prior to the payment date.
The Note Issuer shall fix or cause to be fixed any such special record date and
payment date, and, at least 20 days before any such special record date, the
Note Issuer shall mail to each affected Noteholder a notice that states the
special record date, the payment date and the amount of defaulted interest (plus
interest on such defaulted interest) to be paid.
SECTION 2.09. CANCELLATION. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Note Trustee, be delivered to the Note Trustee and shall be promptly
cancelled by the Note Trustee. The Note Issuer may at any time deliver to the
Note Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Note Issuer may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by the Note Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this Note Indenture.
All cancelled Notes may be held or disposed of by the Note Trustee in accordance
with its standard retention or disposal policy as in effect at the time.
SECTION 2.10. AUTHENTICATION AND DELIVERY OF NOTES. On the Issuance Date,
the Notes shall be executed by the Note Issuer and delivered to the Note Trustee
for authentication and thereupon the same shall be authenticated and delivered
by the Note Trustee upon Issuer Request and upon delivery by the Note Issuer to
the Note Trustee, and receipt by the Note Trustee, or the causing to occur by
the Note Issuer, of the following:
(1) NOTE ISSUER ACTION. An Issuer Order authorizing and directing the
execution, authentication and delivery of the Notes by the Note Trustee and
specifying the principal amount of Notes to be authenticated.
(2) AUTHORIZATIONS.
(a) An Opinion of Counsel that no authorization, approval or
consent of any governmental body or bodies at the time having
jurisdiction in the premises is required for the valid issuance,
authentication and delivery of such Notes, except for such
registrations as are required under the blue sky and securities laws
of any State or such authorizations, approvals or consents of
governmental bodies that have been obtained and copies of which have
been delivered with such Opinion of Counsel.
(b) An Opinion of Counsel that no authorization, approval or
consent of any governmental body or bodies at the time having
jurisdiction in the premises is required for the valid execution and
delivery by the Note Issuer of each of the Basic Documents to which
the Note Issuer is a party, except for such authorizations, approvals
or consents of governmental bodies that have been obtained and copies
of which have been delivered with such Opinion of Counsel.
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(3) AUTHORIZING CERTIFICATE. A certificate of an Authorized Officer of
the Note Issuer certifying that the Note Issuer has duly authorized the
execution and delivery of this Note Indenture and the execution,
authentication and delivery of the Notes.
(4) THE COLLATERAL. The Note Issuer shall have caused all Collateral
to have been Granted to the Note Trustee or, if requested by the Note
Trustee, its nominee and will have caused all related filings with the DTE
pursuant to the Statute and other filings in connection with such Grant to
have been duly made.
(5) CERTIFICATES OF THE NOTE ISSUER AND THE SELLER.
(a) An Officer's Certificate from the Note Issuer, dated as of
the Issuance Date:
(i) to the effect that the Note Issuer is not in
Default under this Note Indenture and that the issuance of the
Notes applied for will not result in any Default or in any
material breach of any of the terms, conditions or provisions of
or constitute a default under any material indenture, mortgage,
deed of trust or other agreement or instrument to which the Note
Issuer is a party or by which it or its property is bound or any
order of any court or administrative agency entered in any
Proceeding to which the Note Issuer is a party or by which it or
its property may be bound or to which it or its property may be
subject; and that all conditions precedent provided in this Note
Indenture relating to the authentication and delivery of the
Notes applied for have been complied with;
(ii) all instruments furnished to the Note Trustee
pursuant to this Note Indenture conform to the requirements set
forth in this Note Indenture and constitute all of the documents
required to be delivered hereunder for the Note Trustee to
authenticate and deliver the Notes applied for, and all
conditions precedent provided for in this Note Indenture relating
to the authentication and delivery of the Notes have been
complied with;
(iii) to the effect that the Note Issuer has not
assigned any interest or participation in the Collateral except
for the lien of this Note Indenture; the Note Issuer has the
power and right to Grant the Collateral to the Note Trustee as
security hereunder; and the Note Issuer, subject to the terms of
this Note Indenture, has Granted to the Note Trustee all of its
right, title and interest in and to such Collateral free and
clear of any lien, mortgage, pledge, charge, security interest,
adverse claim or other encumbrance arising as a result of actions
of the Note Issuer or through the Note Issuer, except the lien of
this Note Indenture;
(iv) to the effect that the Note Issuer has appointed
the firm of Independent certified public accountants as
contemplated in Section 8.06 hereof;
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(v) to the effect that attached thereto are duly
executed, true and complete copies of the Sale Agreement and the
Servicing Agreement; and
(vi) stating that all filings with the DTE pursuant to
the Statute and all UCC financing statements with respect to the
Collateral which are required to be filed by the terms of the
Sale Agreement, the Servicing Agreement or this Note Indenture
have been filed as required.
(b) An Officer's Certificate (as defined in the Sale Agreement)
from the Seller, dated as of the Issuance Date, to the effect that (i)
the representations and warranties set forth in Article III of the
Sale Agreement are true and correct and (ii) the attached copies of
the Financing Order and Issuance Advice Letter creating the Transition
Property are true and correct.
(6) OPINION OF COUNSEL. An Opinion of Counsel, portions of which may
be delivered by counsel for the Note Issuer, portions of which may be
delivered by counsel for the Seller and the Servicer, and portions of which
may be delivered by counsel for the Certificate Issuer, dated the Issuance
Date, in each case subject to the customary exceptions, qualifications and
assumptions contained therein, to the collective effect that:
(a) the Note Indenture has been duly qualified under the Trust
Indenture Act;
(b) the Note Issuer has the power and authority to execute and
deliver this Note Indenture and to issue the Notes, and this Note
Indenture and the Notes have been duly authorized and the Note Issuer
is duly formed and is validly existing in good standing under the laws
of the jurisdiction of its organization;
(c) the Note Indenture has been duly authorized, executed and
delivered by the Note Issuer;
(d) the Notes applied for have been duly authorized and executed
and, when authenticated in accordance with the provisions of the Note
Indenture and delivered against payment of the purchase price
therefor, will constitute valid and binding obligations of the Note
Issuer, entitled to the benefits of the Note Indenture;
(e) this Note Indenture, the Sale Agreement, the Servicing
Agreement and the Fee and Indemnity Agreement are valid and binding
agreements of the Note Issuer, enforceable in accordance with their
respective terms, except as such enforceability may be subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws relating to or affecting the rights of
creditors generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law);
(f) (I) to the extent that the provisions of Section 1H(d) of the
Statute apply to the grant of a security interest by the Note Issuer
in the Collateral
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pursuant to this Note Indenture, then upon the giving of value by the
Note Trustee to the Note Issuer with respect to the Collateral, (A)
this Note Indenture creates in favor of the Note Trustee a security
interest in the rights of the Note Issuer in the Collateral, (B) such
security interest is valid and enforceable against the Note Issuer and
third parties (subject to the rights of any third parties holding
security interests in such Collateral perfected in the manner
described in Section 1H(d) of the Statute), and has attached, (C) such
security interest is perfected, and (D) such perfected security
interest is of first priority (subject to any statutory lien in favor
of the holders of the rate reduction bonds issued pursuant to the
Financing Order and the trustee or the representative for such holders
pursuant to Section 1H(e) of the Statute). (II) To the extent that the
provisions of Section 1H(d) of the Statute do not apply to the grant
of a security interest by the Note Issuer in the Collateral pursuant
to this Note Indenture, then upon the giving of value by the Note
Trustee to the Note Issuer with respect to the Collateral, (A) this
Note Indenture creates in favor of the Note Trustee a security
interest in the rights of the Note Issuer in the Collateral, and such
security interest is enforceable against the Note Issuer with respect
to such Collateral, (B) such security interest is perfected, and (C)
such perfected security interest is of first priority (subject to any
statutory lien in favor of the holders of the rate reduction bonds
issued pursuant to the Financing Order and the trustee or the
representative for such holders pursuant to Section 1H(e) of the
Statute);
(g) either (A) the Registration Statement covering the Notes and
the Certificates is effective under the Securities Act and, to the
best of such counsel's knowledge and information, no stop order
suspending the effectiveness of such Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been initiated or are pending or threatened by the Commission or
(B) the Notes and the Certificates are exempt from the registration
requirements under the Securities Act;
(h) the Note Issuer is not now and, assuming that the Note Issuer
uses the proceeds of the sale of the Notes for the purpose of
acquiring Transition Property in accordance with the terms of the Sale
Agreement, following the sale of the Notes to the Certificate Issuer
and the Certificates to the underwriter, underwriters, placement agent
or agents or similar Person, neither the Note Issuer nor the
Certificate Issuer will be required to be registered under the
Investment Company Act of 1940, as amended;
(i) the Sale Agreement is a valid and binding agreement of the
Seller enforceable against the Seller in accordance with its terms
except as such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
laws relating to or affecting the rights of creditors generally and
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law);
(j) the Servicing Agreement is a valid and binding agreement of
the Servicer enforceable against the Servicer in accordance with its
terms except as
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such enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws
relating to or affecting the rights of creditors generally and general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(k) upon the delivery of the fully executed Sale Agreement to the
Note Issuer and the payment of the purchase price of the Transition
Property by the Note Issuer to the Seller pursuant to the Sale
Agreement, then (I) the transfer of the Transition Property by the
Seller to the Note Issuer pursuant to the Sale Agreement conveys the
Seller's right, title and interest in the Transition Property to the
Note Issuer and will be treated under state law as an absolute
transfer of all of the Seller's right, title, and interest in the
Transition Property, other than for federal and state income and
franchise tax purposes, (II) such transfer of the Transition Property
is perfected, (III) such transfer has priority over any other
assignment of the Transition Property and (IV) the Transition Property
is free and clear of all liens created prior to its transfer to the
Note Issuer pursuant to the Sale Agreement; and
(l) such other matters as the Note Trustee may reasonably
require.
(7) ACCOUNTANT'S CERTIFICATE OR OPINION. A certificate or opinion,
addressed to the Note Issuer and the Note Trustee complying with the
requirements of Section 11.01(a) hereof, of a firm of Independent certified
public accountants of recognized national reputation to the effect that (a)
such accountants are Independent with respect to the Note Issuer within the
meaning of the Note Indenture, and are independent public accountants
within the meaning of the standards of The American Institute of Certified
Public Accountants, and (b) with respect to the Collateral, they have made
such calculations as they deemed necessary for the purpose and determined
that, based on the assumptions used in calculating the initial RTC Charge,
as of the Issuance Date such RTC Charge is sufficient to pay (a) Operating
Expenses when incurred, plus (b) the Overcollateralization Amount, plus (c)
interest on the Notes at their respective Note Interest Rates when due,
plus (d) principal of the Notes in accordance with the Expected
Amortization Schedule.
(8) RATING AGENCY CONDITION. The Note Trustee shall receive evidence
reasonably satisfactory to it that the Rating Agency Condition will be
satisfied.
(9) OTHER REQUIREMENTS. Such other documents, certificates,
agreements, instruments or opinions as the Note Trustee may reasonably
require.
SECTION 2.11. RELEASE OF COLLATERAL. Subject to Section 11.01, the Note
Trustee shall release property from the lien of this Note Indenture only as
specified in Section 8.02(d) or upon receipt of an Issuer Request accompanied by
an Officer's Certificate, an Opinion of Counsel and Independent Certificates in
accordance with Trust Indenture Act ss.ss.314(c) and 314(d)(l) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the Trust
Indenture Act does not require any such Independent Certificates.
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ARTICLE III
COVENANTS
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SECTION 3.01. PAYMENT OF PRINCIPAL AND INTEREST. The Note Issuer will duly
and punctually pay the principal of and interest on the Notes in accordance with
the terms of the Notes and this Note Indenture. Amounts properly withheld under
the Code by any Person from a payment to any Noteholder of interest or principal
shall be considered as having been paid by the Note Issuer to such Noteholder
for all purposes of this Note Indenture.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Note Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Notes may be surrendered for registration of transfer or exchange. The
Note Issuer hereby initially appoints the Note Trustee to serve as its agent for
the foregoing purposes. The Note Issuer will give prompt written notice to the
Note Trustee of the location, and of any change in the location, of any such
office or agency. If at any time the Note Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Note Trustee with the address
thereof, such surrenders may be made at the Corporate Trust Office, and the Note
Issuer hereby appoints the Note Trustee as its agent to receive all such
surrenders.
SECTION 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in
Section 8.02(a), all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account
pursuant to Section 8.02(d) shall be made on behalf of the Note Issuer by the
Note Trustee or by another Paying Agent, and no amounts so withdrawn from the
Collection Account for payments of Notes shall be paid over to the Note Issuer
except as provided in this Section and Section 8.02.
The Note Issuer will cause each Paying Agent other than the Note Trustee to
execute and deliver to the Note Trustee an instrument in which such Paying Agent
shall agree with the Note Trustee (and if the Note 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 Notes 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 Note Trustee notice of any default by the Note
Issuer of which it has actual knowledge (or any other obligor upon the
Notes) in the making of any payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Note Trustee, forthwith pay to the Note Trustee
all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Note Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to
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meet the standards required to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Note Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Note Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Note Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Note Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Note Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Note Trustee or any Paying Agent in trust for the payment of any amount
due with respect to any Note and remaining unclaimed for two years after such
amount has become due and payable shall be discharged from such trust and be
paid to the Note Issuer on Issuer Request; and, subject to Section 11.16, the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Note Issuer for payment thereof (but only to the extent of the
amounts so paid to the Note Issuer), and all liability of the Note Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
PROVIDED, HOWEVER, that the Note Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Note Issuer cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Note Issuer. The Note Trustee may also adopt and employ, at the
expense of the Note Issuer, any other reasonable means of notification of such
repayment (including mailing notice of such repayment to Holders whose Notes
have been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from the
records of the Note Trustee or of any Paying Agent, at the last address of
record for each such Holder).
SECTION 3.04. EXISTENCE. The Note Issuer will keep in full effect its
existence, rights and franchises as a limited liability company under the laws
of the State of Delaware (unless it becomes, or any successor Note Issuer
hereunder is or becomes, organized under the laws of any other State or of the
United States of America, in which case the Note Issuer will keep in full effect
its existence, rights and franchises under the laws of such other jurisdiction)
and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Note Indenture, the Notes, the Collateral
and each other instrument or agreement included in the Collateral.
SECTION 3.05. PROTECTION OF COLLATERAL. The Note Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all such
filings with the DTE
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pursuant to the Statute, financing statements, continuation statements,
instruments of further assurance and other instruments, and will take such other
action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Note Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Note Indenture;
(iii) enforce any of the Collateral;
(iv) preserve and defend title to the Collateral and the rights
of the Note Trustee and the Noteholders in such Collateral against the
claims of all Persons and parties, including the challenge by any party to
the validity or enforceability of the Financing Order, any Advice Letter or
the Transition Property or any proceeding relating thereto and institute
any action or proceeding necessary to compel performance by the DTE or The
Commonwealth of Massachusetts of any of its obligations or duties under the
Statute, the Financing Order or any Advice Letter; or
(v) pay any and all taxes levied or assessed upon all or any
part of the Collateral.
The Note Issuer hereby designates the Note Trustee its agent and
attorney-in-fact to execute any filings with the DTE pursuant to the Statute,
financing statement, continuation statement or other instrument required by the
Note Trustee pursuant to this Section, it being understood that the Note Trustee
shall have no such obligation.
SECTION 3.06. OPINIONS AS TO COLLATERAL.
(a) On the Issuance Date, the Note Issuer shall furnish to the Note Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, (A)
such action has been taken (and reciting the details of such action) with
respect to the recording and filing of this Note Indenture and any other
requisite documents, and with respect to the execution and filing of any filings
with the DTE pursuant to the Statute, financing statements and continuation
statements, as are necessary to perfect the lien and security interest of this
Note Indenture and that no such additional filings are necessary while any Notes
are Outstanding, or (B) no such action is necessary to make such lien and
security interest effective.
(b) Prior to the effectiveness of any amendment to the Sale Agreement, the
Note Issuer shall furnish to the Note Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all filings, including filings
with the DTE pursuant to the Statute and any UCC financing statements, have been
executed and filed that are necessary fully to preserve and protect the interest
of the Note Issuer and the Note Trustee in the Transition Property and the
proceeds thereof, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest.
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SECTION 3.07. PERFORMANCE OF OBLIGATIONS; SERVICING; COMMISSION FILINGS.
(a) The Note Issuer (i) will diligently pursue any and all actions to
enforce its rights under each instrument or agreement included in the Collateral
and (ii) will not take any action and will use its reasonable efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's covenants or obligations under any such instrument or agreement
or that would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such instrument
or agreement, except, in each case, as expressly provided in this Note
Indenture, the Sale Agreement, the Servicing Agreement or such other instrument
or agreement.
(b) The Note Issuer may contract with other Persons to assist it in
performing its duties under this Note Indenture, and any performance of such
duties by a Person identified to the Note Trustee in an Officer's Certificate of
the Note Issuer shall be deemed to be action taken by the Note Issuer.
Initially, the Note Issuer has contracted with the Servicer to assist the Note
Issuer in performing its duties under this Note Indenture.
(c) The Note Issuer will punctually perform and observe all of its
obligations and agreements contained in this Note Indenture, the Basic Documents
and in the instruments and agreements included in the Collateral, including
filing or causing to be filed all filings with the DTE pursuant to the Statute,
UCC financing statements and continuation statements required to be filed by it
by the terms of this Note Indenture, the Sale Agreement and the Servicing
Agreement in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly permitted therein, the Note Issuer shall
not waive, amend, modify, supplement or terminate any Basic Document or any
provision thereof without the written consent of the Note Trustee (which consent
shall not be withheld if (i) the Note Trustee shall have received an Officer's
Certificate stating that such waiver, amendment, modification, supplement or
termination shall not adversely affect in any material respect the interests of
the Noteholders or the holders of Certificates and (ii) the Rating Agency
Condition shall have been satisfied with respect thereto) or the Holders of at
least a majority of the Outstanding Amount of Notes.
(d) If the Note Issuer shall have knowledge of the occurrence of a Servicer
Default under the Servicing Agreement, the Note Issuer shall promptly give
written notice thereof to the Note Trustee and the Rating Agencies, and shall
specify in such notice the action, if any, the Note Issuer is taking with
respect of such default. If a Servicer Default shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the Transition Property or the RTC Charge, the Note
Issuer shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer, the Agencies and the Rating Agencies of the Servicer's rights and
powers pursuant to Section 7.01 of the Servicing Agreement, the Note Issuer,
subject to the approval of the DTE pursuant to the Financing Order, shall
appoint a successor Servicer (the "Successor Servicer") with the Note Trustee's
prior written consent thereto (which consent shall not be unreasonably
withheld), and such Successor Servicer shall accept its appointment by a written
assumption in a form acceptable to the Note Issuer and the Note Trustee. A
Person shall qualify as a Successor Servicer only if such Person satisfies the
requirements of the Servicing Agreement. If within
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30 days after the delivery of the notice referred to above, the Note Issuer
shall not have obtained such a new Servicer, the Note Trustee may petition the
DTE or a court of competent jurisdiction to appoint a Successor Servicer. In
connection with any such appointment, the Note Issuer may make such arrangements
for the compensation of such successor as it and such successor shall agree,
subject to the limitations set forth below and in the Servicing Agreement, and
in accordance with Section 5.02 of the Servicing Agreement, the Note Issuer
shall enter into an agreement with such successor for the servicing of the
Transition Property (such agreement to be in form and substance satisfactory to
the Note Trustee).
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, the Note Trustee shall promptly notify the Note Issuer,
the Noteholders, the Agencies and the Rating Agencies. As soon as a Successor
Servicer is appointed, the Note Issuer shall notify the Note Trustee, the
Noteholders, the Agencies and the Rating Agencies of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to the Note Trustee under this Note Indenture or the rights of the Note Trustee
hereunder, the Note Issuer agrees that it will not, without the prior written
consent of the Note Trustee or the Holders of at least a majority in Outstanding
Amount of the Notes, amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral or the Basic Documents, or waive
timely performance or observance of any material term by the Seller or the
Servicer under the Sale Agreement or the Servicing Agreement, respectively. If
any such amendment, modification, supplement or waiver shall be so consented to
by the Note Trustee or such Holders, the Note Issuer agrees to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as shall be necessary or appropriate in the
circumstances. The Note Issuer agrees that no such amendment, modification,
supplement or waiver shall adversely affect the rights of the Holders of the
Notes Outstanding at the time of any such amendment, modification, supplement or
waiver.
(h) The Note Issuer shall file with the Commission such periodic reports,
if any, as are required from time to time under Section 13 of the Exchange Act.
(i) The Note Issuer shall make all filings required under the Statute relating
to the transfer of the ownership or security interest in the Transition Property
other than those required to be made by the Seller pursuant to the Basic
Documents.
SECTION 3.08. NEGATIVE COVENANTS. So long as any Notes are Outstanding, the
Note Issuer shall not:
(i) except as expressly permitted by this Note Indenture, sell,
transfer or otherwise dispose of any of the properties or assets of the
Note Issuer, including those included in the Collateral, unless directed to
do so by the Note Trustee in accordance with Article V;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such
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payments under the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Collateral;
(iii) terminate its existence or dissolve or liquidate in whole or
in part; or
(iv) (A) permit the validity or effectiveness of this Note
Indenture to be impaired, or permit the lien of this Note Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations with respect to
the Notes under this Note Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Note Indenture
and any statutory lien under Section 1H(e) of the Statute) to be created by
the Note Issuer on or extend to or otherwise arise upon or burden the
Collateral or any part thereof or any interest therein or the proceeds
thereof or (C) subject to any statutory lien under Section 1H(e) of the
Statute, permit the lien of this Note Indenture not to constitute a valid
first priority security interest in the Collateral.
SECTION 3.09. ANNUAL STATEMENT AS TO COMPLIANCE. The Note Issuer will
deliver to the Note Trustee, the Certificate Trustee and the Rating Agencies not
later than [March 31] of each year (commencing with [March 31, 2000]), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that
(i) a review of the activities of the Note Issuer during the
preceding twelve months ended December 31 (or, in the case of the Officer's
Certificate to be delivered on or before March 31, 2000, the period of time
from the date of this Note Indenture until December 31, 1999), and of
performance under this Note Indenture has been made under such Authorized
Officer's supervision; and
(ii) to such Authorized Officer's knowledge, based on such
review, the Note Issuer has complied with all conditions and covenants
under this Note Indenture throughout such twelve month period, or, if there
has been a default in so complying with any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
SECTION 3.10. NOTE ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Note Issuer shall not consolidate or merge with or into any other
Person, unless
(i) the Person (if other than the Note Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America, any State or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Note Trustee, in form
and substance reasonably satisfactory to the Note Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Note
Indenture on the part of the Note Issuer to be performed or observed, all
as provided herein;
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(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Note Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Note Trustee) to the effect
that such transaction will not have any material adverse tax consequence to
the Note Issuer, the Certificate Issuer, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Note Indenture shall have been taken; and
(vi) the Note Issuer shall have delivered to the Note Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental note indenture comply with
this Section 3.10 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
(b) Except as specifically provided herein, the Note Issuer shall not
convey or transfer any of its properties or assets, including those included in
the Collateral, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Note Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America, any
State or the District of Columbia, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Note Trustee, in form
and substance reasonably satisfactory to the Note Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Note
Indenture on the part of the Note Issuer to be performed or observed, all
as provided herein, (C) expressly agrees by means of such supplemental note
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise expressly waived by the Note Issuer, expressly agrees to
indemnify, defend and hold harmless the Note Issuer against and from any
loss, liability or expense arising under or related to this Note Indenture
and the Notes and (E) expressly agrees by means of such supplemental note
indenture that such Person (or if a group of Persons, then one specified
Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
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(iv) the Note Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Note Trustee) to the effect
that such transaction will not have any material adverse tax consequence to
the Note Issuer, the Certificate Issuer, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Note Indenture shall have been taken; and
(vi) the Note Issuer shall have delivered to the Note Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental note indenture comply with
this Section 3.10 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
SECTION 3.11. SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Note Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Note Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Note Issuer under this Note Indenture
with the same effect as if such Person had been named as the Note Issuer herein.
(b) Except as set forth in Section 6.07, upon a conveyance or transfer of
all the assets and properties of the Note Issuer pursuant to Section 3.10(b),
BEC Funding LLC will be released from every covenant and agreement of this Note
Indenture to be observed or performed on the part of the Note Issuer with
respect to the Notes immediately upon the delivery of written notice to the Note
Trustee stating that BEC Funding LLC is to be so released.
SECTION 3.12. NO OTHER BUSINESS. The Note Issuer shall not engage in any
business other than financing, purchasing, owning and managing the Transition
Property in the manner contemplated by this Note Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. NO BORROWING. The Note Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. SERVICER'S OBLIGATIONS. The Note Issuer shall enforce the
Servicer's compliance with all of the Servicer's material obligations under the
Servicing Agreement.
SECTION 3.15. NO ADDITIONAL NOTES. The Note Issuer shall not issue any
additional Notes hereunder.
SECTION 3.16. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
otherwise contemplated by the Sale Agreement, the Servicing Agreement or this
Note Indenture, the Note Issuer shall not make any loan or advance or credit to,
or guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase,
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repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION 3.17. CAPITAL EXPENDITURES. Other than expenditures in an aggregate
amount not to exceed $[25,000] in any calendar year, the Note Issuer shall not
make any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.18. NON-ROUTINE PERIODIC ADJUSTMENT. The Note Issuer agrees that
it shall not consent to a Non-Routine Periodic Adjustment pursuant to Section
4.01(c) of the Servicing Agreement unless the Rating Agency Condition shall have
been satisfied.
SECTION 3.19. RESTRICTED PAYMENTS. The Note Issuer shall not, directly or
indirectly, while the Notes are Outstanding (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to any owner of a beneficial interest in
the Note Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Note Issuer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; PROVIDED,
HOWEVER, that, if no Event of Default shall have occurred and be continuing, the
Note Issuer may make, or cause to be made, any such distributions to any owner
of a beneficial interest in the Note Issuer or otherwise with respect to any
ownership or equity interest or security in or of the Note Issuer using funds
distributed to the Note Issuer pursuant to Section 8.02 to the extent that such
distributions would not cause the amount of the capital subaccount to decline
below .50 percent of the original principal amount of the Notes. The Note Issuer
will not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with this Note Indenture and the Basic
Documents.
SECTION 3.20. NOTICE OF EVENTS OF DEFAULT. The Note Issuer agrees to give
the Note Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Seller or the Servicer of
its obligations under the Sale Agreement or the Servicing Agreement,
respectively.
SECTION 3.21. FURTHER INSTRUMENTS AND ACTS. Upon request of the Note
Trustee, the Note Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Note Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
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SECTION 4.01. SATISFACTION AND DISCHARGE OF NOTE INDENTURE; DEFEASANCE.
(a) This Note Indenture shall cease to be of further effect with respect to
the Notes and the Note Trustee, on reasonable demand of and at the expense of
the Note Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Note Indenture with respect to the Notes, when
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(A) either
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been mutilated, destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.06 and (ii)
Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Note Issuer and thereafter
repaid to the Note Issuer or discharged from such trust, as provided
in Section 3.03) have been delivered to the Note Trustee for
cancellation; or
(2) the Scheduled Maturity Date has occurred with respect to all
Notes not theretofore delivered to the Note Trustee for cancellation,
and the Note Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Note Trustee cash, in trust for such
purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Note
Trustee for cancellation on the Scheduled Maturity Date therefor;
(B) the Note Issuer has paid or caused to be paid all other sums
payable hereunder by the Note Issuer; and
(C) the Note Issuer has delivered to the Note Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the Trust Indenture
Act or the Note Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements of
Section 11.01(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Note
Indenture with respect to Notes have been complied with.
(b) Subject to Sections 4.01(c) and 4.02, the Note Issuer at any time may
terminate (i) all its obligations under this Note Indenture with respect to the
Notes ("Legal Defeasance Option") or (ii) its obligations under Sections 3.04,
3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17 and 3.18
and the operation of Section 5.01(iv) ("Covenant Defeasance Option") with
respect to the Notes. The Note Issuer may exercise the Legal Defeasance Option
notwithstanding its prior exercise of the Covenant Defeasance Option.
If the Note Issuer exercises the Legal Defeasance Option, the maturity of
the Notes may not be accelerated because of an Event of Default. If the Note
Issuer exercises the Covenant Defeasance Option, the maturity of the Notes may
not be accelerated because of an Event of Default specified in Section 5.01(iv).
Upon satisfaction of the conditions set forth herein to the exercise of the
Legal Defeasance Option or the Covenant Defeasance Option, the Note Trustee, on
reasonable demand of and at the expense of the Note Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of the obligations that are
terminated pursuant to such exercise.
(c) Notwithstanding Sections 4.01(a) and 4.01(b) above, (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal and interest, (iv) Sections 4.03 and 4.04, (v) the rights,
obligations and immunities of the Note Trustee hereunder (including the rights
of the
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Note Trustee under Section 6.07 and the obligations of the Note Trustee under
Section 4.03) and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property deposited with the Note Trustee payable to all or any of
them, shall survive until the Notes as to which this Note Indenture or certain
obligations hereunder have been satisfied and discharged pursuant to Section
4.01(a) or 4.01(b) have been paid in full. Thereafter, the obligations in
Sections 6.07 and 4.04 shall survive.
SECTION 4.02. CONDITIONS TO DEFEASANCE. The Note Issuer may exercise the
Legal Defeasance Option or the Covenant Defeasance Option of Notes only if:
(a) the Note Issuer irrevocably deposits or causes to be
deposited in trust with the Note Trustee cash or U.S. Government
Obligations for the payment of principal of and interest on each such Note
to the Scheduled Maturity Date, Optional Redemption Date or Mandatory
Redemption Date therefor, as applicable;
(b) the Note Issuer delivers to the Note Trustee a certificate
from a nationally recognized firm of Independent accountants expressing its
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited cash without investment will provide cash at such times and in
such amounts (but, in the case of the Legal Defeasance Option only, not
more than such amounts) as will be sufficient to pay in respect of the
Notes (i) subject to clause (ii), principal in accordance with the Expected
Amortization Schedule therefor, (ii) if to be redeemed, the Optional
Redemption Price or Mandatory Redemption Price, as applicable, therefor on
the related Optional Redemption Date or Mandatory Redemption Date, as
applicable and (iii) interest when due;
(c) in the case of the Legal Defeasance Option, 91 days pass
after the deposit is made and during the 91-day period no Default specified
in Section 5.01(v) or (vi) occurs which is continuing at the end of the
period;
(d) no Default has occurred and is continuing on the day of such
deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option,
the Note Issuer shall have delivered to the Note Trustee an Opinion of
Counsel stating that (i) the Note Issuer has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Note Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the Notes
will not recognize income, gain or loss for federal income tax purposes as
a result of such legal defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such legal defeasance had not occurred;
(f) in the case of an exercise of the Covenant Defeasance
Option, the Note Issuer shall have delivered to the Note Trustee an Opinion
of Counsel to the effect that the Holders of the Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax
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on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and
(g) the Note Issuer delivers to the Note Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the satisfaction and discharge of the Notes to the extent
contemplated by this Article IV have been complied with.
Before or after a deposit pursuant to this Section 4.02, the Note Issuer
may make arrangements satisfactory to the Note Trustee for the redemption of
such Notes at a future date in accordance with Article X.
SECTION 4.03. APPLICATION OF TRUST MONEY. All moneys or U.S. Government
Obligations deposited with the Note Trustee pursuant to Section 4.01 or 4.02
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Note Indenture, to the payment, either directly
or through any Paying Agent, as the Note Trustee may determine, to the Holders
of the particular Notes for the payment or redemption of which such moneys have
been deposited with the Note Trustee, of all sums due and to become due thereon
for principal and interest, but such moneys need not be segregated from other
funds except to the extent required herein or in the Servicing Agreement or
required by law.
SECTION 4.04. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Note Indenture or the Covenant Defeasance
Option or Legal Defeasance Option with respect to the Notes, all moneys then
held by any Paying Agent other than the Note Trustee under the provisions of
this Note Indenture with respect to such Notes shall, upon demand of the Note
Issuer, be paid to the Note Trustee to be held and applied according to Section
3.03 and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
REMEDIES
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SECTION 5.01. EVENTS OF DEFAULT. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the
same becomes due and payable, and such default shall continue for a period
of five days; or
(ii) default in the payment of the then unpaid principal of any
Note on the Final Maturity Date; or
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(iii) default in the payment of the Optional Redemption Price for
any Note on the Optional Redemption Date therefor, or a default in the
payment of the Mandatory Redemption Price for the Notes on the Mandatory
Redemption Date;
(iv) default in the observance or performance in any material
respect of any covenant or agreement of the Note Issuer made in this Note
Indenture (other than a covenant or agreement, a default in the observance
or performance of which is elsewhere in this Section specifically dealt
with), or any representation or warranty of the Note Issuer made in this
Note Indenture or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been made, and
such default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a period
of 30 days after there shall have been given, by registered or certified
mail, to the Note Issuer by the Note Trustee or to the Note Issuer and the
Note Trustee by the Holders of at least 25 percent of the Outstanding
Amount of the Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Note Issuer or any
substantial part of the Collateral in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Note Issuer or
for any substantial part of the Collateral, or ordering the winding-up or
liquidation of the Note Issuer's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(vi) the commencement by the Note Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Note Issuer
to the entry of an order for relief in an involuntary case under any such
law, or the consent by the Note Issuer to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Note Issuer or for any substantial
part of the Collateral, or the making by the Note Issuer of any general
assignment for the benefit of creditors, or the failure by the Note Issuer
generally to pay its debts as such debts become due, or the taking of
action by the Note Issuer in furtherance of any of the foregoing.
The Note Issuer shall deliver to a Responsible Officer of the Note Trustee
and the Rating Agencies, within ten days after an Authorized Officer has
knowledge of the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (iv), its status and what action
the Note Issuer is taking or proposes to take with respect thereto.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Note Trustee or the Holders of Notes representing not less than a majority of
the Outstanding Amount of the Notes
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may declare all the Notes to be immediately due and payable, by a notice in
writing to the Note Issuer (and to the Note Trustee if given by Noteholders),
and upon any such declaration the unpaid principal amount of the Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Note Trustee as hereinafter in this Article V provided, the
Holders of Notes representing a majority of the Outstanding Amount of the Notes,
by written notice to the Note Issuer and the Note Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Note Issuer has paid or deposited with the Note Trustee a sum
sufficient to pay
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon such Notes
if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Note Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Note Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY NOTE
TRUSTEE.
(a) The Note Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, (ii) default is made in the payment of the
then unpaid principal of any Note on the Final Maturity Date for such Note or
(iii) default is made in the payment of the Optional Redemption Price or
Mandatory Redemption Price, as applicable, for any Note on the Optional
Redemption Date or Mandatory Redemption Date, as applicable, therefor, the Note
Issuer will, upon demand of the Note Trustee, pay to it, for the benefit of the
Holders of the Notes, the whole amount then due and payable on such Notes for
principal and interest, with interest upon the overdue principal and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the respective rate borne by the Notes or
the applicable Class and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Note
Trustee and its agents and counsel.
(b) Subject to Section 11.16, in case the Note Issuer shall fail forthwith
to pay such amounts upon such demand, the Note Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute
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such Proceeding to judgment or final decree, and may enforce the same against
the Note Issuer or other obligor upon such Notes and collect in the manner
provided by law out of the property of the Note Issuer or other obligor upon
such Notes, wherever situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Note Trustee may,
as more particularly provided in Section 5.04, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Note Trustee shall deem most effective to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Note Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Note Trustee by this Note Indenture or by law.
(d) In case there shall be pending, relative to the Note Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Collateral, Proceedings under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Note Issuer or its property or such other obligor or
Person, or in case of any other comparable judicial Proceedings relative to the
Note Issuer or other obligor upon the Notes, or to the creditors or property of
the Note Issuer or such other obligor, the Note Trustee, irrespective of whether
the principal of any Notes shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Note Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Note Trustee (including any claim for reasonable
compensation to the Note Trustee and each predecessor Note Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the Note
Trustee and each predecessor Note Trustee, except as a result of gross
negligence or willful misconduct and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings; and
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders and of the Note Trustee on
their behalf;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Note Trustee, and, in the event that the Note Trustee shall
consent to the making of payments directly to such Noteholders, to pay to the
Note Trustee such amounts as shall be sufficient to cover reasonable
compensation
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and other amounts owing hereunder to the Note Trustee, each predecessor Note
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Note Trustee
and each predecessor Note Trustee except as a result of gross negligence or
willful misconduct.
(e) Nothing herein contained shall be deemed to authorize the Note Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the Note
Trustee to vote in respect of the claim of any Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(f) All rights of action and of asserting claims under this Note Indenture,
or under any of the Notes, may be enforced by the Note Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Note Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Note Trustee, each predecessor Note
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Note Trustee (and also any
Proceedings involving the interpretation of any provision of this Note Indenture
to which the Note Trustee shall be a party), the Note Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
SECTION 5.04. REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing, the Note
Trustee may do one or more of the following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Note Indenture with respect thereto, whether by declaration
or otherwise, enforce any judgment obtained, and collect from the Note
Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Note Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC or
the Statute and take any other appropriate action to protect and enforce
the rights and remedies of the Note Trustee and the Holders of the Notes;
and
(iv) sell the Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
PROVIDED, HOWEVER, that the Note Trustee may not sell or otherwise liquidate any
portion of the Collateral following an Event of Default, other than an Event of
Default described in Section
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5.01(i), (ii) or (iii), unless (A) the Holders of 100 percent of the Outstanding
Amount of the Notes consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Noteholders are sufficient to discharge in full
all amounts then due and unpaid upon such Notes for principal and interest after
taking into account payment of all amounts due prior thereto pursuant to the
priorities set forth in Section 8.02(d) or (C) the Note Trustee determines that
the Collateral will not continue to provide sufficient funds for all payments on
the Notes as they would have become due if the Notes had not been declared due
and payable, and the Note Trustee obtains the consent of Holders of 66-2/3
percent of the Outstanding Amount of the Notes. In determining such sufficiency
or insufficiency with respect to clause (B) and (C), the Note Trustee may, but
need not, obtain and conclusively rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose.
(b) If the Note Trustee collects any money pursuant to this Article V, it
shall pay out such money in accordance with the priorities set forth in Section
8.02(d).
SECTION 5.05. OPTIONAL PRESERVATION OF THE COLLATERAL. If the Notes have
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Note Trustee may, but need not, elect to maintain possession of
the Collateral. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Note Trustee shall take such desire into account
when determining whether or not to maintain possession of the Collateral. In
determining whether to maintain possession of the Collateral, the Note Trustee
may, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
SECTION 5.06. LIMITATION OF SUITS. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Note Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder previously has given written notice to the Note
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25 percent of the Outstanding
Amount of the Notes have made written request to the Note Trustee to
institute such Proceeding in respect of such Event of Default in its own
name as Note Trustee hereunder;
(iii) such Holder or Holders have offered to the Note Trustee
indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in complying with such request;
(iv) the Note Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Note Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes;
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it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Note Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Note Indenture, except in
the manner herein provided.
In the event the Note Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Notes, the
Note Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Note Indenture.
SECTION 5.07. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Note Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
(a) to receive payment of (i) the interest, if any, on such Note on or after the
due dates thereof expressed in such Note or in this Note Indenture, (ii) the
unpaid principal, if any, of such Notes on or after the Final Maturity Date
therefor or (iii) in the case of redemption, receive payment of the unpaid
principal of and interest, if any, on such Note on or after the Optional
Redemption Date or Mandatory Redemption Date, as applicable, therefor and (b) to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.08. RESTORATION OF RIGHTS AND REMEDIES. If the Note Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Note Indenture and such Proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Note Trustee or to such
Noteholder, then and in every such case the Note Issuer, the Note Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Note Trustee and the Noteholders shall
continue as though no such Proceeding had been instituted.
SECTION 5.09. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Note Trustee or to the Noteholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of the
Note Trustee or any Noteholder to exercise any right or remedy accruing upon any
Default or Event of Default shall impair any such right or remedy or constitute
a waiver of any such Default or Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Note Trustee or
to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Note Trustee or by the Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. The Holders of a majority of the
Outstanding Amount of the Notes (or, if less than all Classes are affected, the
affected Class or Classes) shall
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have the right to direct the time, method and place of conducting any Proceeding
for any remedy available to the Note Trustee with respect to the Notes of such
Class or Classes or exercising any trust or power conferred on the Note Trustee
with respect to such Class or Classes; PROVIDED, HOWEVER, that
(i) such direction shall not be in conflict with any rule of law
or with this Note Indenture;
(ii) subject to the express terms of Section 5.04, any direction
to the Note Trustee to sell or liquidate the Collateral shall be by the
Holders of Notes representing not less than 100 percent of the Outstanding
Amount of the Notes;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Note Trustee elects to retain the Collateral pursuant to
such Section, then any direction to the Note Trustee by Holders of Notes
representing less than 100 percent of the Outstanding Amount of the Notes
to sell or liquidate the Collateral shall be of no force and effect; and
(iv) the Note Trustee may take any other action deemed proper by
the Note Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.01, the Note Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02, the
Holders of Notes of not less than a majority of the Outstanding Amount of the
Notes may waive any past Default or Event of Default and its consequences except
a Default (a) in payment of principal of or interest on any of the Notes or (b)
in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note or of all Classes affected. In
the case of any such waiver, the Note Issuer, the Note Trustee and the Holders
of the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Note Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Note Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Note Indenture, or in any
suit against the Note Trustee for any action taken, suffered or omitted by it as
Note Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
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provisions of this Section shall not apply to (a) any suit instituted by the
Note Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10 percent of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder for
the enforcement of the payment of (i) interest on any Note on or after the due
dates expressed in such Note and in this Note Indenture, (ii) the unpaid
principal, if any, of any Note on or after the Final Maturity Date therefor or
(iii) in the case of redemption, the unpaid principal of and interest on any
Note on or after the Optional Redemption Date or Mandatory Redemption Date, as
applicable, therefor.
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Note Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Note Indenture; and the Note Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Note Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 5.15. ACTION ON NOTES. The Note Trustee's right to seek and recover
judgment on the Notes or under this Note Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Note Indenture. Neither the lien of this Note Indenture nor any rights or
remedies of the Note Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Note Trustee against the Note Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral or
upon any of the assets of the Note Issuer.
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Note Trustee to do so and at the
Note Issuer's expense, the Note Issuer agrees to take all such lawful action as
the Note Trustee may reasonably request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Note Issuer under or in connection with the Sale Agreement
and the Servicing Agreement, respectively, in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to the Note Issuer under or in connection with the Sale Agreement and
the Servicing Agreement, respectively, to the extent and in the manner directed
by the Note Trustee, including the transmission of notices of default on the
part of the Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Sale Agreement and
the Servicing Agreement, respectively.
(b) If an Event of Default has occurred, the Note Trustee may, and, at the
direction (which direction shall be in writing or by telephone (confirmed in
writing promptly thereafter)) of the Holders of 66-2/3 percent of the
Outstanding Amount of the Notes shall, subject to Article VI, exercise all
rights, remedies, powers, privileges and claims of the Note Issuer against the
Seller or the Servicer under or in connection with the Sale Agreement and the
Servicing Agreement, respectively, including the right or power to take any
action to compel or secure
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performance or observance by the Seller or the Servicer of each of their
obligations to the Note Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale Agreement or the
Servicing Agreement, respectively, and any right of the Note Issuer to take such
action shall be suspended.
ARTICLE VI
THE NOTE TRUSTEE
----------------
SECTION 6.01. DUTIES OF NOTE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Note Trustee
shall exercise the rights and powers vested in it by this Note Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Note Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Note Indenture and no
implied covenants or obligations shall be read into this Note Indenture
against the Note Trustee; and
(ii) in the absence of bad faith on its part, the Note Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Note Trustee and conforming to the requirements
of this Note Indenture; however, the Note Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Note Indenture.
(c) The Note Trustee may not be relieved from liability for its own
negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Note Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Note Trustee was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Note Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) Every provision of this Note Indenture that in any way relates to the
Note Trustee is subject to paragraphs (a) , (b) and (c) of this Section.
(e) The Note Trustee shall not be liable for interest on any money received
by it except as the Note Trustee may agree in writing with the Note Issuer.
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(f) Money held in trust by the Note Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Note
Indenture, the Sale Agreement and the Servicing Agreement.
(g) No provision of this Note Indenture shall require the Note Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Note Indenture relating to the conduct or
affecting the liability of or affording protection to the Note Trustee shall be
subject to the provisions of this Section and to the provisions of the Trust
Indenture Act.
(i) In the event that the Trustee is also acting as Paying Agent or Note
Registrar hereunder, this Article VI shall also be afforded to such Paying Agent
or Note Registrar.
SECTION 6.02. RIGHTS OF NOTE TRUSTEE.
(a) The Note Trustee may conclusively rely and shall be fully protected in
relying on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Note Trustee need not investigate any fact
or matter stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel. The Note Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officer's Certificate or Opinion of Counsel.
(c) The Note Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Note Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Note Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Note Trustee's conduct does not constitute
willful misconduct, gross negligence or bad faith.
(e) The Note Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Note Indenture and the
Notes shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) The Note Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Note Indenture at the request or
direction of any Holder pursuant to this Note Indenture, unless such Holder
shall have offered to the note Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
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(g) The Note Trustee shall not be charged with knowledge of any
default or Event of Default, unless either (1) a Responsible Officer of the Note
Trustee shall have actual knowledge of the default or Event of Default, or (2)
written notice of such default or Event of Default shall have been given to the
Trustee by the Note Issuer or by a Holder of the Notes.
SECTION 6.03. INDIVIDUAL RIGHTS OF NOTE TRUSTEE. The Note Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Note Issuer or its affiliates with the same rights
it would have if it were not Note Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Note Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.04. NOTE TRUSTEE'S DISCLAIMER. The Note Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Note Indenture or the Notes, it shall not be accountable for the Note
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Note Issuer in the Note Indenture or in any document issued
in connection with the sale of the Notes or in the Notes other than the Note
Trustee's certificate of authentication.
SECTION 6.05. NOTICE OF DEFAULTS. If a Default occurs and is continuing and
if it is actually known to a Responsible Officer of the Note Trustee, the Note
Trustee shall mail to each Holder of Notes notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of principal of or
interest on any Note, the Note Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.06. REPORTS BY NOTE TRUSTEE TO HOLDERS.
(a) So long as the Note Trustee is the Note Registrar and Paying Agent, it
shall deliver to each Noteholder such information in its possession as may be
required to enable such holder to prepare its federal and state income tax
returns.
(b) On or prior to each Payment Date therefor, the Note Trustee will
deliver to each Holder of Notes on such Payment Date a statement as provided and
prepared by the Servicer which will include (to the extent applicable) the
following information as to the Notes with respect to such Payment Date or the
period since the previous Payment Date, as applicable:
(i) the amount of the distribution to Noteholders allocable to
principal;
(ii) the amount of the distribution to Noteholders allocable to
interest;
(iii) the aggregate outstanding Principal Balance of the Notes,
after giving effect to payments allocated to principal reported under (i)
above; and
(iv) the difference, if any, between the Principal Balance and
the Projected Principal Balance as of such Payment Date, after giving
effect to distributions to be made on such Payment Date.
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(c) The Note Issuer shall send the Note Trustee a copy of each of the
Certificate of Compliance delivered to it pursuant to Section 3.03 of the
Servicing Agreement and the Annual Accountant's Report delivered to it pursuant
to Section 3.04 of the Servicing Agreement to the Rating Agencies. A copy of
such certificate and report may be obtained by any Noteholder by a request in
writing to the Note Trustee.
(d) If the Note Trustee is also serving as the Certificate Trustee, it
shall also prepare the statements required to be delivered to Certificateholders
pursuant to Section 4.02(d) of the Certificate Indenture.
SECTION 6.07. COMPENSATION AND INDEMNITY. The Note Issuer shall pay to the
Note Trustee from time to time reasonable compensation for its services. The
Note Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Note Issuer shall reimburse the Note Trustee
for all reasonable out-of-pocket expenses disbursements and advances incurred or
made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Note Trustee's agents, counsel,
accountants and experts. The Note Issuer shall indemnify the Note Trustee and
its officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees and expenses) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder. The Note Trustee shall notify the Note Issuer as soon as is
reasonably practicable of any claim for which it may seek indemnity. Failure by
the Note Trustee to so notify the Note Issuer shall not relieve the Note Issuer
of its obligations hereunder. The Note Issuer shall defend the claim and the
Note Trustee may have separate counsel and the Note Issuer shall pay the fees
and expenses of such counsel. The Note Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Note Trustee
through the Note Trustee's own willful misconduct, gross negligence or bad
faith.
The Note Issuer's payment obligations to the Note Trustee pursuant to this
Section shall survive the discharge of this Note Indenture or the earlier
resignation or removal of the Note Trustee. When the Note Trustee incurs
expenses after the occurrence of a Default specified in Section 5.01(v) or (vi)
with respect to the Note Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.08. REPLACEMENT OF NOTE TRUSTEE. The Note Trustee may resign at
any time by so notifying the Note Issuer, PROVIDED, HOWEVER, that no such
resignation shall be effective until either (a) the Collateral has been
completely liquidated and the proceeds of the liquidation distributed to the
Noteholders or (b) a successor trustee having the qualifications set forth in
Section 6.11 has been designated and has accepted such trusteeship. The Holders
of a majority in Outstanding Amount of the Notes may remove the Note Trustee by
so notifying the Note Trustee and may appoint a successor Note Trustee. The Note
Issuer shall remove the Note Trustee if:
(i) the Note Trustee fails to comply with Section 6.11;
(ii) the Note Trustee is adjudged a bankrupt or insolvent;
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(iii) a receiver or other public officer takes charge of the Note
Trustee or its property; or
(iv) the Note Trustee otherwise becomes incapable of acting.
If the Note Trustee resigns or is removed or if a vacancy exists in the
office of Note Trustee for any reason (the Note Trustee in such event being
referred to herein as the retiring Note Trustee), the Note Issuer shall promptly
appoint a successor Note Trustee.
A successor Note Trustee shall deliver a written acceptance of its
appointment to the retiring Note Trustee and to the Note Issuer. Thereupon the
resignation or removal of the retiring Note Trustee shall become effective, and
the successor Note Trustee shall have all the rights, powers and duties of the
Note Trustee under this Note Indenture. The successor Note Trustee shall mail a
notice of its succession to Noteholders. The retiring Note Trustee shall
promptly transfer all property held by it as Note Trustee to the successor Note
Trustee.
If a successor Note Trustee does not take office within 60 days after the
retiring Note Trustee resigns or is removed, the retiring Note Trustee, the Note
Issuer or the Holders of a majority in Outstanding Amount of the Notes may
petition any court of competent jurisdiction for the appointment of a successor
Note Trustee.
If the Note Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Note Trustee
and the appointment of a successor Note Trustee.
Notwithstanding the replacement of the Note Trustee pursuant to this
Section, the Note Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Note Trustee.
SECTION 6.09. SUCCESSOR NOTE TRUSTEE BY MERGER. If the Note Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Note Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Note Trustee shall succeed to the trusts created by this
Note Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Note Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Note Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
to the Note Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Notes or in this Note Indenture provided that
the certificate of the Note Trustee shall have.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Note Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Note Trustee
shall have the power and may execute and deliver
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all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Collateral, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Collateral, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Note Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Note Trustee shall be conferred or imposed upon and
exercised or performed by the Note Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Note Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Note Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Note Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Note Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Note Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Note Indenture and the
conditions of this Article VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Note Trustee
or separately, as may be provided therein, subject to all the provisions of this
Note Indenture, specifically including every provision of this Note Indenture
relating to the conduct of, affecting the liability of, or affording protection
to, the Note Trustee. Every such instrument shall be filed with the Note
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Note
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Note Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Note Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Note Trustee shall at all
times satisfy the requirements of Trust Indenture Act ss. 310(a) and Section
26(a)(i) of the Investment Company Act of 1940. The Note Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term debt
rating of A (or the equivalent thereof) or better by all of the Rating Agencies
from which a rating is available. The Note Trustee shall comply with Trust
Indenture Act ss. 310(b), including the optional provision permitted by the
second sentence of Trust Indenture Act ss. 310(b)(9); PROVIDED, HOWEVER, that
there shall be excluded from the operation of Trust Indenture Act ss. 310(b)(1)
any indenture or indentures under which other securities of the Note Issuer are
outstanding if the requirements for such exclusion set forth in Trust Indenture
Act ss. 310(b)(1) are met.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST NOTE ISSUER. The
Note Trustee shall comply with Trust Indenture Act ss. 311(a), excluding any
creditor relationship listed in Trust Indenture Act ss. 311(b). A Note Trustee
who has resigned or been removed shall be subject to Trust Indenture Act ss.
311(a) to the extent indicated.
SECTION 6.13. REPRESENTATIONS AND WARRANTIES OF NOTE TRUSTEE. The Note
Trustee hereby represents and warrants that:
(a) the Note Trustee is a banking corporation validly existing in
good standing under the laws of the State of New York; and
(b) the Note Trustee has full power, authority and legal right to
execute, deliver and perform this Note Indenture and the Basic Documents to
which the Note Trustee is a party and has taken all necessary action to
authorize the execution, delivery, and performance by it of this Note
Indenture and such Basic Documents.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
------------------------------
SECTION 7.01. NOTE ISSUER TO FURNISH NOTE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Note Issuer will furnish or cause to be furnished to the Note
Trustee (a) not more than five days after the earlier of (i) each Record Date
and (ii) six months after the last Record Date, a list, in such form as the Note
Trustee may reasonably require, of the names and addresses of the Holders of
Notes as of such Record Date, (b) at such other times as the Note Trustee may
request in writing, within 30 days after receipt by the Note Issuer of any such
request, a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished; PROVIDED, HOWEVER, that so long as the
Note Trustee is the Note Registrar, no such list shall be required to be
furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Note Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Note Trustee as provided in Section 7.01 and
the names and addresses of Holders of Notes
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received by the Note Trustee in its capacity as Note Registrar. The Note Trustee
may destroy any list furnished to it as provided in such Section 7.01 upon
receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to Trust Indenture Act ss. 312(b)
with other Noteholders with respect to their rights under this Note Indenture or
under the Notes.
(c) The Note Issuer, the Note Trustee and the Note Registrar shall have the
protection of Trust Indenture Act ss. 312(c).
SECTION 7.03. REPORTS BY NOTE ISSUER.
(a) The Note Issuer shall:
(i) so long as the Note Issuer is required to file such
documents with the Commission, file with the Note Trustee, within 15 days
after the Note Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Note Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Note Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Note Issuer with the conditions and covenants of this
Note Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all Noteholders described in Trust Indenture Act ss.
313(c)) such summaries of any information, documents and reports required
to be filed by the Note Issuer pursuant to clauses (i) and (ii) of this
Section 7.03(a) as may be required by rules and regulations prescribed from
time to time by the Commission.
(b) Unless the Note Issuer otherwise determines, the fiscal year of the
Note Issuer shall end on December 31 of each year.
SECTION 7.04. REPORTS BY NOTE TRUSTEE. If required by Trust Indenture Act
ss. 313(a), within 60 days after [September 30] of each year, commencing with
the year after the issuance of the Notes, the Note Trustee shall mail to each
Holder of Notes as required by Trust Indenture Act ss. 313(c) a brief report
dated as of such date that complies with Trust Indenture Act ss. 313(a). The
Note Trustee also shall comply with Trust Indenture Act ss. 313(b); PROVIDed,
HOWEVer, that the initial report so issued shall be delivered not more than 12
months after the Issuance Date.
A copy of each report at the time of its mailing to Noteholders shall be
filed by the Note Trustee with the Commission and each stock exchange, if any,
on which the Notes are listed. The Note Issuer shall notify the Note Trustee if
and when the Notes are listed on any stock exchange.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
------------------------------------
SECTION 8.01. COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Note Trustee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assistance of any fiscal agent
or other intermediary, all money and other property payable to or receivable by
the Note Trustee, the Certificate Trustee or the Delaware Trustee pursuant to
this Note Indenture, the Certificate Indenture and the Fee and Indemnity
Agreement. The Note Trustee shall apply all such money received by it as
provided in this Note Indenture. Except as otherwise expressly provided in this
Note Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Collateral,
the Note Trustee may take such action as may be appropriate to enforce such
payment or performance, subject to Article VI, including the institution and
prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this Note
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.02. COLLECTION ACCOUNT.
(a) Prior to the Issuance Date, the Note Issuer shall open, at the Note
Trustee's Corporate Trust Office, or at another Eligible Institution, one or
more segregated trust accounts in the Note Trustee's name for the deposit of RTC
Charge Collections (collectively, the "Collection Account"). The Note Trustee
shall hold the Collection Account for the benefit of Noteholders. The Collection
Account will consist of four subaccounts: a general subaccount (the "General
Subaccount"), a reserve subaccount (the "Reserve Subaccount"), a subaccount for
the Overcollateralization Amount (the "Overcollateralization Subaccount") and a
capital subaccount (the "Capital Subaccount"). All amounts in the Collection
Account not allocated to any other subaccount shall be allocated to the General
Subaccount. Prior to the initial Payment Date, all amounts in the Collection
Account (other than funds deposited into the Capital Subaccount, together with
interest earnings thereon, up to the Required Capital Level) shall be allocated
to the General Subaccount. All references to the Collection Account shall be
deemed to include reference to all subaccounts contained therein. Withdrawals
from and deposits to each of the foregoing subaccounts of the Collection Account
shall be made as set forth in Section 8.02. The Collection Account shall at all
times be maintained in an Eligible Deposit Account and only the Note Trustee
shall have access to the Collection Account for the purpose of making deposits
in and withdrawals from the Collection Account in accordance with this Note
Indenture. Funds in the Collection Account shall not be commingled with any
other moneys. Except as provided in Section 8.03, all moneys deposited from time
to time in the Collection Account, all deposits therein pursuant to this Note
Indenture, and all investments made in Eligible Investments with such moneys,
including all income or other gain from such investments, shall be held by the
Note Trustee in the Collection Account as part of the Collateral as herein
provided.
(b) The Note Trustee shall have sole dominion and exclusive control over
all moneys in the Collection Account and shall apply such amounts therein as
provided in this Section 8.02. The Note Trustee shall also pay from the
Collection Account any amounts requested to be paid by the Servicer pursuant to
Section 4.03(b) of the Servicing Agreement.
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(c) All Estimated RTC Charge Payments shall be deposited in the General
Subaccount as provided in Section 4.03 of the Servicing Agreement. All deposits
to and withdrawals from the Collection Account and all allocations to the
subaccounts of the Collection Account shall be made by the Note Trustee in
accordance with the written instructions provided by the Servicer in the
Semiannual Servicer's Certificate or as otherwise provided herein.
(d) On any Business Day upon which the Note Trustee receives a written
request from the Administrator stating that any Operating Expense payable by the
Note Issuer (but only as described in clauses (i) through (iv) below) will
become due and payable prior to the next succeeding Payment Date, and setting
forth the amount and nature of such Operating Expenses, as well any supporting
documentation that the Note Trustee may reasonably request, the Note Trustee,
upon receipt of such information, will make payment of such Operating Expenses
on or before the date such payment is due from amounts on deposit in the General
Subaccount, the Reserve Subaccount, the Overcollateralization Subaccount and the
Capital Subaccount, in that order and only to the extent required to make such
payment.
On each Payment Date, the Note Trustee shall apply, at the direction of the
Servicer, all amounts on deposit in the Collection Account, including all net
earnings thereon (other than on amounts in the Capital Subaccount), to pay the
following amounts, in accordance with the Semiannual Servicer Certificate, in
the following priority:
(i) all amounts owed by the Note Issuer to the Note Trustee
(including legal fees and expenses) shall be paid to the Note Trustee
(subject to Section 6.07) and all amounts owed by the Note Issuer to the
Certificate Trustee and the Delaware Trustee under the Fee and Indemnity
Agreement shall be paid to the Certificate Trustee and the Delaware
Trustee, as appropriate;
(ii) the Servicing Fee for such Payment Date and all unpaid
Servicing Fees from prior Payment Dates shall be paid to the Servicer;
(iii) the Administration Fee and all unpaid Administration Fees
from prior Payment Dates shall be paid to the Administrator;
(iv) so long as no Default or Event of Default shall have
occurred and be continuing or would result from such payment, all other
Operating Expenses shall be paid to the Persons entitled thereto; PROVIDED,
HOWEVER, that the amount of Operating Expenses paid by the Note Trustee
with respect to any Semiannual Period ending on a Payment Date shall not,
in the aggregate, exceed $100,000;
(v) first, any overdue Semiannual Interest (together with, to
the extent lawful, interest on such overdue Semiannual Interest at the
applicable Note Interest Rate) and, second, Semiannual Interest for such
Payment Date shall be paid to the Noteholders;
(vi) first, principal due and payable on the Notes as a result of
an Event of Default or on the Final Maturity Date of the Notes, shall be
paid to the Noteholders and, second, Semiannual Principal for such Payment
Date shall be paid to the Noteholders;
(vii) unpaid Operating Expenses shall be paid to the Persons
entitled thereto;
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(viii) the amount, if any, by which the Required Capital Level with
respect to all Outstanding Notes exceeds the amount in the Capital
Subaccount as of such Payment Date shall be allocated to the Capital
Subaccount;
(ix) the amount, if any, by which the Required
Overcollateralization Level, with respect to all Outstanding Notes, exceeds
the amount in the Overcollateralization Subaccount as of such Payment Date
shall be allocated to the Overcollateralization Subaccount;
(x) the balance, if any, shall be allocated to the Reserve
Subaccount for distribution on subsequent Payment Dates; and
(xi) after principal of and interest on all Notes, and all of the
other foregoing amounts, have been paid in full, the balance, if any, shall
be paid to the Note Issuer, free from the lien of this Note Indenture.
All payments to the Noteholders pursuant to clauses (v) and (vi) above
shall be made to such holders pro rata based on the respective principal amounts
of Notes held by such Holders. Payments in respect of principal of and interest
on any Class of Notes will be made on a pro rata basis among all the Noteholders
of such Class.
(e) If on any Payment Date, or for any amounts payable under clauses (i)
through (iv) above, on any Business Day, funds on deposit in the General
Subaccount are insufficient to make the payments contemplated by clauses (i)
through (vi) of Section 8.02(d) above, the Note Trustee shall (i) FIRST, draw
from amounts on deposit in the Reserve Subaccount, (ii) SECOND, draw from
amounts on deposit in the Overcollateralization Subaccount and (III) THIRD, draw
from amounts on deposit in the Capital Subaccount, in each case, up to the
amount of such shortfall in order to make the payments contemplated by clauses
(i) through (vi) of Section 8.02(d). In addition, if on any Payment Date funds
on deposit in the General Subaccount are insufficient to make the allocations
contemplated by clauses (viii) and (ix) above, the Note Trustee shall draw from
amounts on deposit in the Reserve Subaccount to make such allocations. If on any
Payment Date funds on deposit in the Collection Account are insufficient to make
the transfers contemplated by clause (v) above, the Note Trustee will allocate
the funds in the Collection Account among the classes pro rata.
(f) On any Optional Redemption Date or Mandatory Redemption Date, the Note
Trustee shall pay to the Noteholders the Optional Redemption Price or Mandatory
Redemption Price, as the case may be.
(g) On the last day of each month, if the amount in the Capital Subaccount
exceeds the Required Capital Level, the Note Trustee shall pay to the Note
Issuer, upon receipt of an Issuer Request, free from the lien of this Note
Indenture, all amounts in the Capital Subaccount in excess of the Required
Capital Level.
SECTION 8.03. GENERAL PROVISIONS REGARDING THE COLLECTION ACCOUNT.
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Collection Account shall be
invested in Eligible Investments and
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reinvested by the Note Trustee upon Issuer Order; PROVIDED, HOWEVER, that (i)
such Eligible Investments shall not mature later than the Business Day prior to
the next Payment Date, (ii) such Eligible Investments shall not be sold,
liquidated or otherwise disposed of at a loss prior to the maturity thereof and
(iii) 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 the equivalent thereof by the other
Rating Agencies) or a short-term rating of at least P-1 by Moody's (or the
equivalent thereof by the other Rating Agencies), and 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 A1 by Moody's (or the equivalent thereof by the other Rating Agencies) and
a short-term rating of at least P-1 by Moody's (or the equivalent thereof by the
other Rating Agencies). All income or other gain from investments of moneys
deposited in the Collection Account shall be deposited by the Note Trustee in
the Collection Account, and any loss resulting from such investments shall be
charged to the Collection Account; PROVIDED, HOWEVER, that all income or other
gain from investments of moneys deposited in the Capital Subaccount shall be
retained in the Capital Subaccount, and any loss resulting from such investments
shall be charged to the Capital Subaccount. The Note Issuer will not direct the
Note Trustee to make any investment of any funds or to sell any investment held
in the Collection Account unless the security interest Granted and perfected in
such account will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person, and, in
connection with any direction to the Note Trustee to make any such investment or
sale, if requested by the Note Trustee, the Note Issuer shall deliver to the
Note Trustee an Opinion of Counsel, reasonably acceptable to the Note Trustee,
to such effect. In no event shall the Note Trustee be liable for the selection
of Eligible Investments or for investment losses incurred thereon. The Note
Trustee shall have no liability in respect of losses incurred as a result of the
liquidation of any Eligible Investment prior to its stated maturity or the
failure of the Note Issuer to provide timely written investment direction. The
Note Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of written investment direction pursuant to an Issuer
Order.
(b) Subject to Section 6.01(c), the Note Trustee shall not in any way be
held liable by reason of any insufficiency in the Collection Account resulting
from any loss on any Eligible Investment included therein except for losses
attributable to the Note Trustee's failure to make payments on such Eligible
Investments issued by the Note Trustee, in its commercial capacity as principal
obligor and not as trustee, in accordance with their terms.
(c) If (i) the Note Issuer shall have failed to give written investment
directions for any funds on deposit in the Collection Account to the Note
Trustee by 11:00 a.m. Eastern Time (or such other time as may be agreed by the
Note Issuer and Note Trustee) on any Business Day; or (ii) a Default or Event of
Default shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section 5.02;
then the Note Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Collection Account in one or more investments which
qualify as investments in money market funds described under paragraph (d) of
the definition of Eligible Investments.
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SECTION 8.04. RELEASE OF COLLATERAL.
(a) The Note Trustee may, and when required by the provisions of this Note
Indenture shall, execute instruments to release property from the lien of this
Note Indenture, or convey the Note Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Note Indenture. No party relying upon an instrument executed by the Note Trustee
as provided in this Article VIII shall be bound to ascertain the Note Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Note Trustee shall, at such time as there are no Notes Outstanding,
release any remaining portion of the Collateral that secured the Notes from the
lien of this Note Indenture and release to the Note Issuer or any other Person
entitled thereto any funds then on deposit in the Collection Account. The Note
Trustee shall release property from the lien of this Note Indenture pursuant to
this Section 8.04(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the Trust
Indenture Act) Independent Certificates in accordance with Trust Indenture Act
xx.xx. 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.01.
SECTION 8.05. OPINION OF COUNSEL. The Note Trustee shall receive at least
seven days' notice when requested by the Note Issuer to take any action pursuant
to Section 8.04(a), accompanied by copies of any instruments involved, and the
Note Trustee shall also require, as a condition to such action, an Opinion of
Counsel, in form and substance reasonably satisfactory to the Note Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Note Indenture; PROVIDED, HOWEVER, that
such Opinion of Counsel shall not be required to express an opinion as to the
fair value of the Collateral. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Note Trustee in connection with
any such action.
SECTION 8.06. REPORTS BY INDEPENDENT ACCOUNTANTS. As of the Issuance Date,
the Note Issuer shall appoint a firm of Independent certified public accountants
of recognized national reputation for purposes of preparing and delivering the
reports or certificates of such accountants required by this Note Indenture. In
the event such firm requires the Note Trustee to agree to the procedures
performed by such firm, the Note Issuer shall direct the Note Trustee in writing
to so agree; it being understood and agreed that the Note Trustee will deliver
such letter of agreement in conclusive reliance upon the direction of the Note
Issuer, and the Note Trustee makes no independent inquiry or investigation to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures. Upon any resignation by such firm
the Note Issuer shall provide written notice thereof to the Note Trustee and
shall promptly appoint a successor thereto that shall also be a firm of
Independent certified public accountants of recognized national reputation. If
the Note Issuer shall fail to appoint a successor to a firm of Independent
certified public accountants that has resigned within 15 days after such
resignation, the Note Trustee shall promptly notify the Note Issuer of such
failure in writing. If the Note Issuer shall not have appointed a successor
within 10 days thereafter the Note Trustee shall promptly
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appoint a successor firm of Independent certified public accountants of
recognized national reputation; PROVIDED, HOWEVER, that the Note Trustee shall
have no liability with respect to such appointment if the Note Trustee acted
with due care with respect thereto. The fees of such Independent certified
public accountants and its successor shall be payable by the Note Issuer.
ARTICLE IX
SUPPLEMENTAL NOTE INDENTURES
----------------------------
SECTION 9.01. SUPPLEMENTAL NOTE INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies, the Note Issuer and the Note Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
reasonably satisfactory to the Note Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Note Indenture, or better to assure,
convey and confirm unto the Note Trustee any property subject or required
to be subjected to the lien of this Note Indenture, or to subject to the
lien of this Note Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Note Issuer, and the
assumption by any such successor of the covenants of the Note Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Note Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Note Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Note Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental note indenture which may be
inconsistent with any other provision herein or in any supplemental note
indenture or to make any other provisions with respect to matters or
questions arising under this Note Indenture or in any supplemental note
indenture; PROVIDED, HOWEVER, that such action shall not adversely affect
the interests of the Holders of the Notes or holders of the Certificates;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and
to add to or change any of the provisions of this Note Indenture as shall
be necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Note
Indenture to such extent as shall be necessary to effect the qualification
of this Note Indenture under the
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Trust Indenture Act or under any similar federal statute hereafter enacted
and to add to this Note Indenture such other provisions as may be expressly
required by the Trust Indenture Act.
The Note Trustee is hereby authorized to join in the execution of any such
supplemental note indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Note Issuer and the Note Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes, 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 Note Indenture or of modifying in any manner the rights of
the Holders of the Notes under this Note Indenture; PROVIDED, however, that (i)
such action shall not, as evidenced by an Officer's Certificate, adversely
affect in any material respect the interests of the Noteholders or the holders
of Certificates and (ii) the Rating Agency Condition shall have been satisfied
with respect thereto.
SECTION 9.02. SUPPLEMENTAL NOTE INDENTURES WITH CONSENT OF NOTEHOLDERS. The
Note Issuer and the Note Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies, the Agencies and with the consent of
the Holders of not less than a majority of the Outstanding Amount of the Notes
of each Class to be affected, by Act of such Holders delivered to the Note
Issuer and the Note Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Note Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Note Indenture;
PROVIDED, HOWEVER, that no such supplemental note indenture shall, without the
consent of the Holder of each Outstanding Note of each Class affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Note Indenture
relating to the application of collections on, or the proceeds of the sale
of, the Collateral to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which, any
Note or the interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Note Indenture requiring
the application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the respective
due dates thereof (or, in the case of optional or mandatory redemption, on
or after the Optional Redemption Date or Mandatory Redemption Date, as
applicable);
(ii) reduce the percentage of the Outstanding Amount of the Notes
or of a Class thereof, the consent of the Holders of which is required for
any such supplemental note indenture, or the consent of the Holders of
which is required for any waiver of compliance with certain provisions of
this Note Indenture or certain defaults hereunder and their consequences
provided for in this Note Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
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(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Note Trustee to direct the Note Issuer to sell or
liquidate the Collateral pursuant to Section 5.04;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Note Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vi) modify any of the provisions of this Note Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including the
calculation of any of the individual components of such calculation) or to
affect the rights of the Holders of Notes to the benefit of any provisions
for the mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Note Indenture with respect to any part of the
Collateral or, except as otherwise permitted or contemplated herein,
terminate the lien of this Note Indenture on any property at any time
subject hereto or deprive the Holder of any Note of the security provided
by the lien of this Note Indenture.
The Note Trustee may in its discretion determine whether or not any Notes
or Certificates of a Class would be affected by any supplemental note indenture
and any such determination shall be conclusive upon the Holders of all Notes and
holders of all Certificates of such Class, whether theretofore or thereafter
authenticated and delivered hereunder. The Note Trustee shall not be liable for
any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental note indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Note Issuer and the Note Trustee of any
supplemental note indenture pursuant to this Section, the Note Issuer shall mail
to the Rating Agencies and the Holders of the Notes to which such amendment or
supplemental note indenture relates a notice setting forth in general terms the
substance of such supplemental note indenture. Any failure of the Note Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental note indenture.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL NOTE INDENTURES. In executing any
supplemental note indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Note Indenture, the Note Trustee shall be
entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental note indenture is authorized or permitted by this Note
Indenture. The Note Trustee may, but shall not be obligated to, enter into any
such supplemental note indenture that affects the Note Trustee's own rights,
duties, liabilities or immunities under this Note Indenture or otherwise.
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SECTION 9.04. EFFECT OF SUPPLEMENTAL NOTE INDENTURE. Upon the execution of
any supplemental note indenture pursuant to the provisions hereof, this Note
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to each Class of Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Note Indenture of the Note Trustee, the Note Issuer and
the Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental note indenture shall be and be
deemed to be part of the terms and conditions of this Note Indenture for any and
all purposes. If required by the Note Trustee, Notes may bear a notation in form
approved by the Note Trustee as to any matter provided for in such supplemental
note indenture. If the Note Issuer or the Note Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Note Trustee and the Note
Issuer, to any such supplemental note indenture may be prepared and executed by
the Note Issuer and authenticated and delivered by the Note Trustee in exchange
for Outstanding Notes.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Note Indenture and every supplemental note indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Note Indenture shall then be qualified under the Trust
Indenture Act.
ARTICLE X
REDEMPTION OF NOTES
-------------------
SECTION 10.01. OPTIONAL REDEMPTION BY NOTE ISSUER. The Note Issuer may, at
its option, redeem all, but not less than all, of the Notes on any Payment Date
if, after giving effect to payments that would otherwise be made on such Payment
Date, the Outstanding Amount has been reduced to less than five percent of the
initial principal balance thereof at a price equal to the outstanding principal
amount of the Notes to be redeemed plus accrued and unpaid interest thereon at
the Note Interest Rate to the Optional Redemption Date (such price being called
the "Optional Redemption Price"). If the Note Issuer shall elect to redeem the
Notes pursuant to this Section 10.01, it shall furnish written notice (which
notice shall state all items listed in Section 10.02) of such election to the
Note Trustee and the Rating Agencies not later than 25 days prior to the
Optional Redemption Date and shall deposit with the Note Trustee not later than
one Business Day prior to the Optional Redemption Date the Optional Redemption
Price of the Notes to be redeemed whereupon all such Notes shall be due and
payable on the Optional Redemption Date upon the furnishing of a notice
complying with Section 10.02 hereof to each Holder of the Notes pursuant to this
Section 10.01.
SECTION 10.02. FORM OF OPTIONAL REDEMPTION NOTICE. Notice of redemption
under Section 10.01 hereof shall be given by the Note Trustee by first-class
mail, postage prepaid, mailed not less than five days nor more than 25 days
prior to the Optional Redemption Date to each Holder of Notes to be redeemed, as
of the close of business on the Record Date preceding the Optional Redemption
Date at such Holder's address appearing in the Note Register.
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All notices of redemption shall state:
(1) the Optional Redemption Date;
(2) the Optional Redemption Price; and
(3) the place where such Notes are to be surrendered for payment of
the Optional Redemption Price (which shall be the office or agency of the
Note Issuer to be maintained as provided in Section 3.02 hereof).
Notice of redemption of the Notes to be redeemed shall be given by the Note
Trustee in the name and at the expense of the Note Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Note selected
for redemption shall not impair or affect the validity of the redemption of any
other Note.
SECTION 10.03. NOTES PAYABLE ON OPTIONAL REDEMPTION DATE OR PAYMENT DATE.
Notice of redemption having been given as provided in Section 10.02 hereof, the
Notes to be redeemed shall on the Optional Redemption Date become due and
payable at the Optional Redemption Price and (unless the Note Issuer shall
default in the payment of the Optional Redemption Price) no interest shall
accrue on the Optional Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating the Optional
Redemption Price.
SECTION 10.04. MANDATORY REDEMPTION BY NOTE ISSUER. If the Seller is
required to repurchase the Transition Property pursuant to Section 5.01(b) of
the Sale Agreement, the Note Issuer shall be required to redeem all outstanding
Notes on or before the fifth Business Day following the Repurchase Date (such
date of mandatory redemption, the "Mandatory Redemption Date") for a purchase
price equal to the then outstanding principal amount of the Notes plus accrued
and unpaid interest thereon at the Note Interest Rate to the Mandatory
Redemption Date (such price being called the "Mandatory Redemption Price"). If
the Note Issuer is required to redeem the Notes pursuant to this Section 10.04,
it shall furnish written notice (which notice shall state all items listed in
Section 10.05) of such redemption to the Note Trustee and the Rating Agencies
not later than one Business Day before such Repurchase Date and shall deposit
with the Note Trustee, not later than one Business Day prior to the Mandatory
Redemption Date, the Mandatory Redemption Price of the Notes to be redeemed
whereupon all such Notes shall be due and payable on the Mandatory Redemption
Date upon the furnishing of a notice complying with Section 10.05 hereof to each
Holder of the Notes pursuant to this Section 10.04.
SECTION 10.05. FORM OF MANDATORY REDEMPTION NOTICE. Notice of redemption
under Section 10.04 hereof shall be given by the Note Trustee by first-class
mail, postage prepaid, mailed not less than five days prior to the Mandatory
Redemption Date to each Holder of Notes to be redeemed, as of the close of
business on the Record Date preceding the Mandatory Redemption Date at such
Holder's address appearing in the Note Register.
All notices of redemption shall state:
(1) the Mandatory Redemption Date;
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(2) the Mandatory Redemption Price; and
(3) the place where such Notes are to be surrendered for payment of
the Mandatory Redemption Price (which shall be the office or agency of the
Note Issuer to be maintained as provided in Section 3.02 hereof).
Notice of redemption of the Notes to be redeemed shall be given by the Note
Trustee in the name and at the expense of the Note Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Note selected
for redemption shall not impair or affect the validity of the redemption of any
other Note.
SECTION 10.06. NOTES PAYABLE ON MANDATORY REDEMPTION DATE OR PAYMENT DATE.
Notice of redemption having been given as provided in Section 10.05 hereof, the
Notes to be redeemed shall on the Mandatory Redemption Date become due and
payable at the Mandatory Redemption Price and (unless the Note Issuer shall
default in the payment of the Mandatory Redemption Price) no interest shall
accrue on the Mandatory Redemption price for any period after the date to which
accrued interest is calculated for purposes of calculating the Mandatory
Redemption Price.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Note Issuer to the Note Trustee
to take any action under any provision of this Note Indenture, the Note Issuer
shall furnish to the Note Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Note Indenture relating to
the proposed action have been complied with, (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the Trust Indenture Act) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Note Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Note Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is necessary
to enable such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Note Trustee that is to be made the basis for the release of
any property or securities subject to the lien of this Note Indenture, the Note
Issuer shall, in addition to any obligation imposed in Section 11.01(a) or
elsewhere in this Note Indenture, furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Note
Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Note Issuer is required to furnish to the Note
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Note
Issuer shall also deliver to the Note Trustee an Independent Certificate as
to the same matters, if the fair value to the Note Issuer of the securities
to be so deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then-current
fiscal year of the Note Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is ten percent or more
of the Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value
thereof to the Note Issuer as set forth in the related Officer's
Certificate is less than $[25,000] or less than one percent of the
Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from
the lien of this Note Indenture other than pursuant to Section 8.02(d), the
Note Issuer shall also furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate
as to the fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this Note
Indenture in contravention of the provisions hereof.
(iv) Whenever the Note Issuer is required to furnish to the Note
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the Note
Issuer shall also furnish to the Note Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities and of
all other property, or securities released from the lien of this Note
Indenture (other than pursuant to Section 8.02(d) hereof) since the
commencement of the then-current calendar year, as set forth in the
certificates required by clause (iii) above and this clause (iv), equals 10
percent or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than $[25,000] or less than one percent of the then
Outstanding Amount of the Notes.
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(v) Notwithstanding Section 2.11 or any other provision of this
Section, the Note Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Transition Property and the RTC Charge as and to the extent
permitted or required by the Basic Documents and (B) make cash payments out
of the Collection Account as and to the extent permitted or required by the
Basic Documents.
SECTION 11.02. FORM OF DOCUMENTS DELIVERED TO NOTE 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 Officer of the Note Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the 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, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Whenever in this Note Indenture, in connection with any application or
certificate or report to the Note Trustee, it is provided that the Note Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Note 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 Note 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 Note 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Note Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 11.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Note Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly
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provided such action shall become effective when such instrument or instruments
are delivered to the Note Trustee, and, where it is hereby expressly required,
to the Note Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders 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 Note Indenture and (subject to Section 6.01)
conclusive in favor of the Note Trustee and the Note Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Note Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
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 Note Trustee
or the Note Issuer in reliance thereon, whether or not notation of such action
is made upon such Note.
SECTION 11.04. NOTICES, ETC., TO NOTE TRUSTEE, NOTE ISSUER, AGENCIES AND
RATING AGENCIES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Note
Indenture to be made upon, given or furnished to or filed with:
(i) the Note Trustee by any Noteholder or by the Note Issuer
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing by facsimile transmission, first-class mail or
overnight delivery service to or with the Note Trustee at its Corporate
Trust Office, or
(ii) the Note Issuer by the Note Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Note Issuer addressed to: BEC Funding
LLC, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: President, or at any other address previously furnished in
writing to the Note Trustee by the Note Issuer. The Note Issuer shall
promptly transmit any notice received by it from the Noteholders to the
Note Trustee.
(b) Notices required to be given to the Rating Agencies or the Agencies by
the Note Issuer or the Note Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested to (i) in the case of
Moody's, to: Xxxxx'x Investors Service, ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in the case of Standard & Poor's, to:
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Asset Backed Surveillance Department, (iii) in the case
of Fitch, to Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Commercial Asset-Backed Securities, (iv) in the case of Duff &
Xxxxxx, to: Xxxx & Xxxxxx Credit Rating Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and (v) in the case of the Agencies, to (A) Massachusetts
Development Finance Agency, 00 Xxxxxxx Xxxxxx, Xxxxxx,
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Massachusetts 02110, Attention: General Counsel, and (B) Massachusetts Health
and Educational Facilities Authority, 00 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: General Counsel.
SECTION 11.05. NOTICES TO NOTEHOLDERS; WAIVER. Where this Note Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Noteholder's address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
Where this Note Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Note Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event of Noteholders when such notice is required to be given
pursuant to any provision of this Note Indenture, then any manner of giving such
notice as shall be satisfactory to the Note Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Note Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.06. 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 Note Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of Trust Indenture Act xx.xx. 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Note Indenture) are a part of and
govern this Note Indenture, whether or not physically contained herein.
SECTION 11.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.08. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Note Indenture and the Notes by the Note Issuer shall bind its successors and
assigns, whether so expressed or not.
All agreements of the Note Trustee in this Note Indenture shall bind its
successors.
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SECTION 11.09. SEPARABILITY. In case any provision in this Note Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.10. BENEFITS OF NOTE INDENTURE. Nothing in this Note Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership interest
in any part of the Collateral, any benefit or any legal or equitable right,
remedy or claim under this Note Indenture.
SECTION 11.11. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Note Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12. GOVERNING LAW. THIS NOTE INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. COUNTERPARTS. This Note Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.14. RECORDING OF NOTE INDENTURE. If this Note Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Note Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Note Trustee or any other
counsel reasonably acceptable to the Note Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Note Trustee under this Note Indenture.
SECTION 11.15. TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Note Issuer or the Note
Trustee on the Notes or under this Note Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Note
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Note Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Note Trustee in its individual capacity, any holder
of a beneficial interest in the Note Issuer or the Note Trustee or of any
successor or assign of the Note Trustee in its individual capacity, except as
any such Person may have expressly agreed (it being understood that the Note
Trustee has no such obligations in its individual capacity).
SECTION 11.16. NO RECOURSE TO NOTE ISSUER. Notwithstanding any provision of
this Note Indenture or any Supplemental Note Indenture to the contrary,
Noteholders shall have no
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recourse against the Note Issuer, but shall look only to the Collateral, with
respect to any amounts due to the Noteholders hereunder.
SECTION 11.17. INSPECTION. The Note Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Note Trustee, during the Note
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Note Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss the Note Issuer's affairs, finances and accounts
with the Note Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Note Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Note Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
Notwithstanding anything herein to the contrary, the foregoing shall not be
construed to prohibit (i) disclosure of any and all information that is or
becomes publicly known, or information obtained by the Note Trustee from sources
other than the Note Issuer, provided such parties are rightfully in possession
of such information and do not have an obligation of confidentiality, (ii)
disclosure of any and all information (A) if required to do so by any applicable
statute, law, rule or regulation, (B) pursuant to any subpoena, civil
investigative demand or similar demand or request of any court or regulatory
authority exercising its proper jurisdiction, (C) in any preliminary or final
offering circular, registration statement or contract or other document
pertaining to the transactions contemplated by this Note Indenture or the Basic
Documents approved in advance by the Note Issuer or (D) to any affiliate,
independent or internal auditor, agent, employee or attorney of the Note Trustee
having a need to know the same, provided that such parties agree to be bound by
the confidentiality provisions contained in this Section 11.17, or (iii) any
other disclosure authorized by the Note Issuer.
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IN WITNESS WHEREOF, the Note Issuer and the Note Trustee have caused this
Note Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
BEC FUNDING LLC
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Note Trustee,
By:
-----------------------------------
Name:
Title:
S-1
74
COMMONWEALTH OF MASSACHUSETTS, )
) ss.:
COUNTY OF [ ], )
On the _____ day of __________, 1999, before me,
_____________________________, a Notary Public in and for said county and state,
personally appeared _____________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person and officer whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument BEC Funding LLC, a Delaware limited liability company and the entity
upon which the person acted, executed this instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public
My commission expires:
75
COMMONWEALTH OF MASSACHUSETTS, )
) ss.:
COUNTY OF [ ], )
On the _____ day of __________, 1999, before me,
_____________________________, a Notary Public in and for said county and state,
personally appeared _____________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person and officer whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument The Bank of New York, the entity upon which the person acted,
executed this instrument.
WITNESS my hand and official seal.
----------------------------------------
Notary Public
My commission expires:
76
SCHEDULE A
EXPECTED AMORTIZATION SCHEDULE
------------------------------
OUTSTANDING PRINCIPAL BALANCE
Payment Date Class A-1 Class A-2 Class A-3 Class A-4 Class A-5 Class A-6 Class A-7 Total
------------ --------- --------- --------- --------- --------- --------- --------- -----
77
SCHEDULE B
REQUIRED OVERCOLLATERALIZATION LEVEL SCHEDULE
---------------------------------------------
Required Required
Overcollateralization Overcollateralization
Payment Date Level Payment Date Level
------------ --------------------- ------------ ---------------------
78
EXHIBIT B
FORM OF NOTE
REGISTERED $[ ]
No. [ ]
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. [ ]
THE PRINCIPAL OF THIS CLASS A-[ ] NOTE WILL BE PAID IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-[ ]
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
BEC FUNDING LLC NOTES
CLASS A-[ ]
Interest Rate Original Principal Amount Final Maturity Date
------------- ------------------------- -------------------
[ ]% $[ ]
BEC Funding LLC, a limited liability company formed and existing under the
laws of the State of Delaware (herein referred to as the "Note Issuer"), for
value received, hereby promises to pay to Massachusetts RRB Special Purpose
Trust BEC-1, or registered assigns, the original Principal Amount shown above in
semiannual installments on the Payment Dates and in the amounts specified on the
reverse hereof or, if less, the amounts determined pursuant to Section 8.02 of
the Note Indenture, in each year, commencing on the date determined as provided
on the reverse hereof and ending on or before the Final Maturity Date and to pay
interest, at the Interest Rate shown above, on each September 15 and March 15 or
if any such day is not a Business Day, the next succeeding Business Day,
commencing on March 15, 2000 and continuing until the earlier of the payment of
the principal hereof or the Final Maturity Date (each a "Payment Date"), on the
principal amount of this Class A-[ ] Note. Interest on this Class A-[ ] Note
will accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding such Payment Date or, if no interest has
yet been paid, from [ ], 1999. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Such principal of and interest on this
Class A-[ ] Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Class A-[ ] Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Note Issuer with respect to this Class A-[ ] Note-shall be applied first to
interest due and payable on this Class A-[ ] Note as provided above
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and then to the unpaid principal of this Class A-[ ] Note, all in the manner set
forth in Section 8.02 of the Note Indenture.
Reference is made to the further provisions of this Class A-[ ] Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-[ ] Note.
Unless the certificate of authentication hereon has been executed by the
Note Trustee whose name appears below by manual signature, this Class A-[ ] Note
shall not be entitled to any benefit under the Note Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Note Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: [ ], 1999
BEC FUNDING LLC
By:
-----------------------------------
Name:
Title:
B-2
80
NOTE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: [ ], 1999
This is one of the Class A-[ ] Notes of the Notes, designated above and
referred to in the within-mentioned Note Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Note Trustee,
By:
-----------------------------------
Name:
Title:
B-3
81
[REVERSE OF NOTE]
This Class A-[ ] Note is one of a duly authorized issue of Notes of the
Note Issuer, designated as its BEC Funding LLC Notes (herein called the
"Notes"), issuable in one or more Classes, and further designated as a Class
A-[ ] Note (collectively with all other Class A-[ ] Notes of this Issue, the
"Class A-[ ] Notes"), all issued under a Note Indenture dated as of
[ ], 1999 (the "Note Indenture"), between the Note Issuer and The
Bank of New York, as Note Trustee (the "Note Trustee," which term includes any
successor trustee under the Note Indenture), to which Note Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Note Issuer, the Note
Trustee and the Holders of the Notes. All terms used in this Class A-[ ] Note
that are defined in the Note Indenture, as supplemented or amended, shall have
the meanings assigned to them in the Note Indenture.
The Class A-[ ] Notes and the other Classes of Notes issued by the Note
Issuer are and will be equally and ratably secured by the collateral pledged as
security therefor, as provided in the Note Indenture.
The principal of this Class A-[ ] Note shall be payable on each Payment
Date only to the extent that amounts in the Collection Account are available
therefor, and only until the outstanding principal balance thereof on such
Payment Date (after giving effect to all payments of principal, if any, made on
such Payment Date) has been reduced to the principal balance specified in the
Expected Amortization Schedule which is attached to the Note Indenture as
Schedule A, unless payable earlier either because (x) an Event of Default shall
have occurred and be continuing and the Note Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes
have declared the Notes to be immediately due and payable in accordance with
Section 5.02 of the Note Indenture, (y) the Note Issuer, at its option, shall
have called for the redemption of the Notes pursuant to Section 10.01 of the
Note Indenture or (z) the Note Issuer shall have called for the redemption of
the Notes pursuant to Section 10.04 of the Note Indenture if the Seller is
required to repurchase the Transition Property pursuant to Section 5.01(b) of
the Sale Agreement. However, actual principal payments may be made in lesser
than expected amounts and at later than expected times as determined pursuant to
Section 8.02 of the Note Indenture. The entire unpaid principal amount of this
Class A-[ ] Note shall be due and payable on the earlier of the Final Maturity
Date hereof, the optional Redemption Date, if any, and the Mandatory Redemption
Date, if any, herefor. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not then previously
paid, on the date on which an Event of Default shall have occurred and be
continuing and the Note Trustee or the Holders of the Notes representing not
less than a majority of the Outstanding Amount of the Notes have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Note Indenture. All principal payments on the Class A-[ ] Notes shall be
made pro rata to the Class A-[ ] Noteholders entitled thereto based on the
respective principal amounts of the Class A-[ ] Notes held by them.
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Payments of interest on this Class A-[ ] Note due and payable on each
Payment Date, together with the installment of principal shall be made by check
mailed first-class, postage prepaid, to the Person whose name appears as the
Registered Holder of this Class A-[ ] Note (or one or more Predecessor Notes) on
the Note Register as of the close of business on the Record Date, except that
with respect to Notes registered on the Record Date in the name of the
Certificate Trustee, payments will be made by wire transfer in immediately
available funds to the account designated by the Certificate Trustee and except
for the final installment of principal payable with respect to this Class A-[ ]
Note on a Payment Date which shall be payable as provided below. Such checks
shall be mailed to the Person entitled thereto at the address of such Person as
it appears on the Note Register as of the applicable Record Date without
requiring that this Class A-[ ] Note be submitted for notation of payment. Any
reduction in the principal amount of this Class A-[ ] Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Class A-[ ] Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Note Indenture, for payment in full of the then remaining unpaid
principal amount of this Class A-[ ] Note on a Payment Date, then the Note
Trustee, in the name of and on behalf of the Note Issuer, will notify the Person
who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed no later than five days prior to such final
Payment Date and shall specify that such final installment will be payable only
upon presentation and surrender of this Class A-[ ] Note and shall specify the
place where this Class A-[ ] Note may be presented and surrendered for payment
of such installment.
The Note Issuer shall pay interest on overdue installments of interest at
the Note Interest Rate to the extent lawful.
As provided in the Note Indenture, the Class A-[ ] Notes may be redeemed,
in whole but not in part, at the option of the Note Issuer on any Payment Date
at the Optional Redemption Price if, after giving effect to payments that would
otherwise be made on such Payment Date, the Outstanding Amount of the Class
A-[ ] Notes has been reduced to less than five percent of the initial principal
balance thereof. In addition, as provided in the Note Indenture, if the Seller
is required to repurchase the Transition Property pursuant to Section 5.01(b) of
the Sale Agreement, the Note Issuer will be required to redeem all outstanding
Notes, including the Class A-[ ] Notes, on or before the fifth Business Day
following the Repurchase Date (as defined in the Sale Agreement).
As provided in the Note Indenture and subject to certain limitations set
forth therein, the transfer of this Class A-[ ] Note may be registered on the
Note Register upon surrender of this Class A-[ ] Note for registration of
transfer at the office or agency designated by the Note Issuer pursuant to the
Note Indenture, duly endorsed by, or accompanied by (a) a written instrument of
transfer in form satisfactory to the Note Trustee duly executed by the Holder
hereof or his attorney duly authorized in writing, with such signature
guaranteed by an institution which is a member of one of the following
recognized Signature Guaranty Programs: (i) The Securities Transfer Agent
Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
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83
Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in
such other guarantee program acceptable to the Note Trustee, and (b) such other
documents as the Note Trustee may require, and thereupon one or more new Class
A-[ ] Notes of Minimum Denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Class A-[ ]
Note, but the transferor may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange, other than exchanges pursuant to Section
2.04 or 9.06 of the Note Indenture not involving any transfer.
Each Noteholder, by acceptance of a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Note Issuer or the Note Trustee on the Notes or under the Note Indenture
or any certificate or other writing delivered in connection therewith, against
(i) the Note Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Note Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Note Trustee in its individual capacity,
any holder of a beneficial interest in the Note Issuer or the Note Trustee or of
any successor or assign of the Note Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the Note
Trustee has no such obligations in its individual capacity).
Prior to the due presentment for registration of transfer of this Class
A-[ ] Note, the Note Issuer, the Note Trustee and any agent of the Note Issuer
or the Note Trustee may treat the Person in whose name this Class A-[ ] Note is
registered (as of the day of determination) as the owner hereof for the purpose
of receiving payments of principal of and interest on this Class A-[ ] Note and
for all other purposes whatsoever, whether or not this. Class A-[ ] Note be
overdue, and neither the Note Issuer, the Note Trustee nor any such agent shall
be affected by notice to the contrary.
The Note Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Note Issuer and the rights of the Holders of the Notes under the Note Indenture
at any time by the Note Issuer with the consent of the Holders of Notes
representing a majority of the Outstanding Amount of all Notes at the time
Outstanding of each Class to be affected. The Note Indenture also contains
provisions permitting the Holders of Notes representing specified percentages of
the Outstanding Amount of the Notes, on behalf of the Holders of all the Notes,
to waive compliance by the Note Issuer with certain provisions of the Note
Indenture and certain past defaults under the Note Indenture and their
consequences. Any such consent or waiver by the Holder of this Class A-[ ] Note
(or any one of more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-[ ] Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Class
A-[ ] Note. The Note Indenture also permits the Note Trustee to amend or waive
certain terms and conditions set forth in the Note Indenture without the consent
of Holders of the Notes issued thereunder.
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The term "Note Issuer" as used in this Class A-[ ] Note includes any
successor to the Note Issuer under the Note Indenture.
The Note Issuer is permitted by the Note Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Note
Trustee and the Holders of Notes under the Note Indenture.
The Class A-[ ] Notes are issuable only in registered form in denominations
as provided in the Note Indenture, subject to certain limitations therein set
forth.
This Class A-[ ] Note and the Note Indenture shall be construed in
accordance with the laws of The Commonwealth of Massachusetts, without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Note Indenture and no provision of this Class
A-[ ] Note or of the Note Indenture shall alter or impair the obligation of the
Note Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Class A-[ ] Note at the times, place, and rate, and in the coin
or currency herein prescribed.
The Holder of this Class A-[ ] Note by the acceptance hereof agrees that,
notwithstanding any provision of the Note Indenture to the contrary, the Holder
shall have no recourse against the Note Issuer, but shall look only to the
Collateral, with respect to any amounts due to the Holder under this Class A-[ ]
Note.
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85
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Class A-[ ] Note and all rights thereunder, and hereby irrevocably
constitutes and appoints __________________, attorney, to transfer said Class
A-[ ] Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
------------------------- -----------------------------------
Signature Guaranteed:
---------------------------------------- -----------------------------------
----------------------------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A-[ ] Note
in every particular, without alteration, enlargement or any change
whatsoever.
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