EXHIBIT-10.1.08
TRUST AGREEMENT
between
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
and
SHAWMUT BANK, N.A.
as Trustee
Dated as of July 1, 1993
And Providing for the Issue of
$40,000,000
Massachusetts Industrial Finance Agency
5 7/8% Pollution Control Revenue Refunding Bonds, 1993 Series
(Eastern Edison Company Project)
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS ..................................... 3
ARTICLE II - THE BOND ........................................ 6
Section 2.1 Issuance, Certain Terms and Form of
1993 Series Bonds............................6
Section 2.2 Delivery of 1993 Series Bonds...............18
Section 2.3 Issuance of Additional Bonds................19
Section 2.4 Execution, Authentication...................20
Section 2.5 Interchangeability of Bonds.................20
Section 2.6 Transfer and Ownership......................21
Section 2.7 Regulation With Respect to Exchanges and
Transfers...................................21
Section 2.8 Bonds Mutiliated, Destroyed, Stolen or Lost.21
Section 2.9 Temporary Bonds.............................22
Section 2.10 Cancellation and Destruction of Bonds......23
ARTICLE III - REDEMPTION OF BONDS BEFORE MATURITY..............23
Section 3.1 Redemption Dates and Prices for 1993 Series
Bonds.......................................23
Section 3.2 Notice of Redemption of Bonds...............24
Section 3.3 Payment of Bonds Called for Redemption......24
ARTICLE IV - FUNDS AND REVENUES................................24
Section 4.1 Bond Fund...................................24
Section 4.2 Deposits and Payments.......................25
Section 4.3 Investment of Moneys in Bond Fund...........25
Section 4.4 Moneys to be Held in Trust..................25
ARTICLE V - REPRESENTATIONS AND COVENANTS OF THE AGENCY........25
Section 5.1 Representations.............................25
Section 5.2 Covenant as to Payment; Faith and Credit
of Commonwealth Not Pledged.................26
Section 5.3 Issuance of Refunding Bonds.................27
ARTICLE VI - DEFEASANCE........................................27
Section 6.1 Defeasance..................................27
Section 6.2 Nonpresentment of Bonds.....................28
Section 6.3 Right of Company to Purchase Bonds for
Cancellation................................28
ARTICLE VII - DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND
BONDHOLDERS......................................28
Section 7.1 Defaults; Events of Default.................28
Section 7.2 Acceleration................................28
Section 7.3 Other Remedies; Rights of Bondholders.......29
Section 7.4 Right of Bondholders to Direct Proceedings..30
Section 7.5 Application of Moneys.......................30
Section 7.6 Remedies Vested in Trustee..................30
Section 7.7 Rights and Remedies of Bondholders..........30
Section 7.8 Waivers of Events of Default................31
ARTICLE VIII - THE TRUSTEE.....................................32
Section 8.1 Acceptance of the Trusts....................32
Section 8.2 Fees, Charges and Expenses of Trustee and
Paying Agents...............................33
Section 8.3 Notice of Bondholders if Default or Event
of Default Occurs...........................33
Section 8.4 Successor Trustee...........................33
Section 8.5 Resignation of Trustee; Removal.............34
Section 8.6 Appointment of Successor Trustee............34
Section 8.7 Dealing in Bonds............................34
Section 8.8 List of Bondholders.........................34
Section 8.9 Designation and Succession of Paying Agents.35
ARTICLE IX - SUPPLEMENTAL AGREEMENTS; AND AMENDMENTS TO LOAN
AGREEMENT.........................................35
Section 9.1 Supplemental Agreements Not Requiring
Consent of Bondholders......................35
Section 9.2 Supplemental Agreements Requiring Consent
of Bondholders, etc.........................36
Section 9.3 Amendments, etc., to Loan Agreement.........37
Section 9.4 Consent of Company..........................37
Section 9.5 Opinion of Counsel..........................37
Section 9.6 Modification by Unanimous Consent...........38
ARTICLE X - MISCELLANEOUS......................................38
Section 10.1 Instruments of Further Assurance; Recording
and Filing.................................38
Section 10.2 Rights Under Loan Agreement................38
Section 10.3 Consents, etc., of Bondholders.............38
Section 10.4 Limitations of Rights......................39
Section 10.5 Severability...............................39
Section 10.6 Notices....................................39
Section 10.7 Payments Due on Saturdays, Sundays and
Holidays...................................39
Section 10.8 Extent of Covenants; No Personal Liability.39
Section 10.9 Captions; Table of Contents................40
Section 10.10 Counterparts..............................40
Section 10.11 Governing Law.............................40
TRUST AGREEMENT
THIS TRUST AGREEMENT (the "Trust Agreement") is entered into as of the 1st
day of July, 1993 by and between the Massachusetts Industrial Finance
Agency (the "Agency") and Shawmut Bank, N.A., a national banking association
authorized to accept and execute trusts of the character herein set out, with
its principal office located in Boston, Massachusetts, as Trustee (the
'trustee"). WHEREAS, the Agency, by virtue of the laws of The Commonwealth of
Massachusetts, including Chapters 23A and 40D of the Massachusetts General
Laws (the "Enabling Act"), is authorized and empowered, among other things,
(a) to refund its revenue bonds by the issuance of refunding bonds, and (b) to
secure said refunding bonds by a trust agreement with a corporate trustee and
by a pledge of revenues, as provided for herein; and
WHEREAS Eastern Edison Company (the "Company") has requested that the
Agency issue and sell revenue refunding bonds and loan the proceeds to the
Company pursuant to a Loan Agreement dated as of July 1, 1993 between the
Agency and the Company (which agreement, including all amendments and
supplements thereto is hereinafter referred to as the "Loan Agreement") for
the purpose of repaying the Loan made by the Agency to the Company pursuant
to a Loan Agreement dated as of August 1, 1983 (the "1983 Loan"); and
WHEREAS the Agency has heretofore determined that the amount necessary in
order for the Company to repay the 1983 Loan will require the issuance, sale
and delivery of bonds to be issued pursuant to the Enabling Act in the
aggregate principal amount of Forty Million Dollars ($40,000,000) (the
"1993 Series Bonds"); and
WHEREAS all things necessary to make the 1993 Series Bonds, when
authenticated by the Trustee and issued as provided in this Trust Agreement,
the valid, binding and legal obligations of the Agency according to the import
thereof and to constitute this Trust Agreement a valid pledge of the Pledged
Receipts (hereinafter defined), provision for which is herein made, to secure
the payment of the principal of, premium, if any, and interest on the
1993 Series Bonds and any bonds thereafter issued on a parity therewith (said
1993 Series Bonds and any Additional Bonds (as hereinafter defined) are
hereinafter collectively called the "Bonds"), have been done and performed,
and the execution and delivery of this Trust Agreement, and the issuance,
execution and delivery of the 1993 Series Bonds, subject to the terms hereof,
have in all respects been duly authorized:
NOW, THEREFORE, THIS TRUST AGREEMENT WITNESSETH that, in consideration of
the acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the Bonds by the holders and owners thereof, and
also in order to secure the payment of the principal of, premium, if any, and
interest on the Bonds and the payment, performance and observance by the
Agency of all agreements, covenants and conditions expressed or implied
herein, in the Loan Agreement, in the Bond Purchase Agreement (hereinafter
defined) and in the Bonds on their respective parts to be paid performed and
observed, the Agency has executed and delivered this Trust Agreement and
hereby grants, pledges and assigns unto the Trustee, and to its successors in
said trusts, and to its assigns, and grants a security interest under the
Enabling Act and the Uniform Commercial Code in (to the maximum extent
possible), the Pledged Receipts (hereinafter defined) and all right, title and
interest of the Agency in and to the Loan Agreement, including without
limitation all rights and remedies to enforce the Loan Agreement and the
making of payments thereunder, excepting from such grant, pledge and
assignment the right of the Agency to any payment or reimbursement or
indemnification for its own account pursuant to the Loan Agreement,
TO HAVE AND TO HOLD the Trust Estate (hereinafter defined), whether now
owned or hereafter acquired, unto the Trustee and its respective successors in
said trusts and assigns forever IN TRUST upon the terms and trusts
herein set forth for the benefit, security and protection of all present and
future holders of all Bonds from time to time issued under and secured by this
Trust Agreement; PROVIDED, NEVERTHELESS, that the pledge and assignment hereby
made is upon the further condition that if the Agency, its successors or
assigns, shall pay, or cause to be paid, as provided herein the principal of
the Bonds and the premium, if any, and interest due or to become due thereon,
at the times and in the manner mentioned herein and in the Bonds and shall pay
or cause to be paid to the Trustee all sums of money due or to become due in
accordance with the terms and provisions hereof, and if the Agency and the
Company shall perform and observe all of the agreements, covenants and
conditions on their respective parts to be performed and observed hereunder,
under the Loan Agreement, under the Bond Purchase Agreement, under the
Inducement Letter and under the Bonds, upon such final payments, performance
and observance, this Trust Agreement shall cease and the security interests
created hereby shall terminate.
THIS TRUST AGREEMENT FURTHER WITNESSETH that the Agency and the Trustee
have further agreed as follows (except that in the performance of the
agreements of the Agency herein contained any obligation it may thereby
incur for the payment of money shall not be a general debt or obligation on
its part or a general obligation or charge against or pledge of the faith and
credit or taxing power of The Commonwealth of Massachusetts but shall be
payable solely from the Pledged Receipts and Funds provided under this Trust
Agreement):
ARTICLE I
DEFINITIONS
In addition to the words and terms defined in the Loan Agreement or elsewhere
in this Trust Agreement, the following words and terms as used in this Trust
Agreement, in the Loan Agreement, in the Bonds and in any certificate or other
document executed by any party in connection therewith shall have the
following meanings unless the context or use indicates another or different
meaning or intent:
"Act of Bankruptcy" means the filing of a petition in bankruptcy by or
against the Company under the United States Bankruptcy Code.
"Additional Bonds" means the one or more Bonds which may be issued pursuant
to Section 2.3.
"Banking Day" means any day other than a Saturday, Sunday or public or bank
holiday or the equivalent for banks generally under the laws of Massachusetts.
"Beneficial Owner" shall have the meaning set forth in Section 2.1(b).
"Bonds" means the 1993 Series Bonds, any Bond or Bonds issued in exchange
there for or replacement thereof pursuant to Sections 2.5, 2.6, 2.7, 2.8 and
2.9 and any Additional Bonds.
"Bond Fund" means the Fund established by Section 4.1.
"Bondholder" or "holder" or "owner" of Bonds means, as of any time, the
registered owner of any Bond as shown in the register kept by the Trustee as
bond registrar.
"Bond Payment Date" means, as to the 1993 Series Bonds and any Bond or
Bonds issued in replacement thereof or exchange there for, any date, which may
include an Interest Payment Date, upon which any payment of principal of such
Bonds shall be due pursuant hereto and, as to Additional Bonds and any Bond or
Bonds issued in replacement thereof or exchange there for, any date, which may
include an Interest Payment Date, upon which any payment of principal of such
Bonds shall be due pursuant to the resolution of the Agency authorizing the
issuance of such Bonds.
"Bond Purchase Agreement" means the agreement dated July 14, 1993 between
the Agency and the Representative whereby, among other things, the Agency
agrees to issue and sell the 1993 Series Bonds to the Purchasers and the
Purchasers agree to purchase the 1993 Series Bonds.
"Book-Entry Only System" means the system of registration of the 1993
Series Bonds described in Section 2.1(b).
"Closing Date" shall have the meaning such term has by definition in the
Bond Purchase Agreement.
"Code" means the Internal Revenue Code of 1954, as amended from time to
time, and such provisions of the Internal Revenue Code of 1986, as amended
from time to time, as are applicable to the Bonds.
"DTC" shall mean The Depository Trust Company, a New York corporation.
"Enabling Act" means Massachusetts General Laws Chapters 23A and 40D, each
as amended.
"Event of default" means an event referred to in Section 7.1.
"Inducement Letter" means the letter dated July 14, 1993 from the Company
to the Agency and the Purchasers relating to the 1993 Series Bonds.
"Interest Payment Date" means, as to the 1993 Series Bonds and any Bond or
Bonds issued in replacement thereof or exchange there for, any date upon which
interest is to be paid on such Bonds pursuant hereto, and, as to Additional
Bonds and any Bond or Bonds issued in replacement thereof or exchange there
for, any date upon which interest is to be paid on such Bonds pursuant to the
resolution of the Agency authorizing the issuance of such Bonds.
"Investments" means (i) any bonds, notes, bills or other obligations which
as to principal and interest constitute direct obligations of or are
unconditionally and fully guaranteed by the United States of America; (ii) an
investment agreement or other interest-bearing obligation issued by a bank,
trust company (including the Trustee), or state or federally chartered savings
and loan association, which has capital, surplus and undivided profits of
at least $ 100,000,000; (iii) repurchase agreements secured by any of the
investments of the types described in clauses (i), (ii) and (iv) and entered
into with banks, trust companies or savings and loan associations described in
clause (ii); (iv) commercial paper or finance company paper rated not less
than "P-1" or its equivalent by Moody's Investors Service, Inc., and not less
than "A-1" or its equivalent by Standard & Poor's Corporation, or an
equivalent rating by any successor to either of them, excluding
commercial paper issued by the Company, any subsidiary of the Company or any
entity controlling, controlled by, or under common control with the Company;
and (v) obligations of a State, Territory or possession of the United States
of America or political subdivision of any of the foregoing or of the District
of Columbia rated AA or better by Standard and Poor's Corporation; provided
that such investment or deposit is not prohibited by federal or state banking
laws applicable to the Trustee; provided that in circumstances under which
investment earnings may affect the status of interest on the 1993 Series Bonds
under Section 103 of the Code and Treasury Regulations thereunder,
"Investments" means (vi) obligations of a State, Territory or possession of
the United States of America or political subdivision of any of the foregoing
or of the District of Columbia.
"Montaup" means Montaup Electric Company, a Massachusetts corporation and a
wholly-owned subsidiary of the Company.
"Outstanding" and "Outstanding Principal Amount" when used in connection
with Bonds means, at any time, the principal amount of the Bonds theretofore
issued hereunder which has not been paid within the meaning of the second
paragraph of Section 6.1, exclusive of the principal amount of a Bond
in exchange for or replacement of which another Bond has been authenticated
under Sections 2.5., 2.6, 2.7, 2.8 or 2.9.
"Participant" shall have the meaning set forth in Section 2.1(b).
"Paying Agent" means any bank or trust company designated as paying agent
for the Bonds (and may include the Trustee) and its successor or successors
hereafter appointed in the manner provided in this Trust Agreement.
"Person" means natural persons, firms, associations, corporations and
public bodies.
"Plant" means Montaup's electrical generating facilities in Somerset,
Massachusetts.
"Pledged Receipts" means (a) the Loan Payments received or receivable by
the Agency pursuant to the Loan Agreement, except for payments to the Agency
under items (1) and (2) of Section 5.2 of the Loan Agreement, (b) all other
receipts and revenues received or receivable by the Agency, or the Trustee for
the account of the Agency, in respect of the Loan (as that term is defined in
the Loan Agreement), including without limitation moneys received or
receivable by the Trustee for deposit in any Fund established hereunder and
(c) moneys deposited in said Funds and any securities in which moneys in
said Funds are invested and the proceeds derived therefrom.
"Project" means the pollution control facilities described in Exhibit A to
the Loan Agreement.
"Purchasers" means the several Underwriters named in the Bond Purchase
Agreement, as initial purchasers of the 1993 Series Bonds.
"Representative" means Goldman, Sachs & Co., as representative of the
Purchasers.
"Trust Estate" means the properties, rights and interests pledged and
assigned by the Agency in its pledge and assignment preceding this Article I.
"Uniform Commercial Code" means Massachusetts General Laws Chapter 106 as the
same may be amended.
ARTICLE II
THE BONDS
Section 2.1 Issuance. Certain Terms and Form of 1993 Series Bonds.
a. The 1993 Series Bonds shall be designated "Massachusetts Industrial Finance
Agency 5 7/8% Pollution Control Revenue Refunding Bonds, 1993 Series (Eastern
Edison Company Project)", and shall be issued in the aggregate principal
amount of $40,000,000. The 1993 Series Bonds shall be issued in fully
registered form; shall be in the denomination of $5,000 or any integral
multiple thereof; shall be numbered consecutively from R-1 upwards;
shall be substantially in the form set forth below in this subsection 2.1(a),
with such variations, omissions and insertions as are permitted or required
hereby; shall be payable, as to principal of and premium, if any, at the
principal corporate trust office of the Trustee in Boston, Massachusetts,
which is a Paying Agent of the Agency, or of its successor as such Paying
Agent, and as to interest by check drawn upon the Trustee and mailed to the
registered address of the registered owner entitled thereto; and shall be
dated as of July 1, 1993 if authenticated prior to the first Interest Payment
Date on such 1993 Series Bonds and otherwise shall be dated as of the Interest
Payment Date next preceding the date of their authentication, except that if
authenticated on an Interest Payment Date they shall be dated as of such date
of authentication; provided that if at the time of authentication interest
thereon is in default, they shall be dated as of the date to which interest
has been paid, or if no interest has been paid, they shall be dated as of
July 1, 1993. The 1993 Series Bonds shall mature August 1, 2008 and
shall bear interest from the date thereof payable semi- annually on
February 1 and August 1 in each year, commencing February 1, 1994, at the
rate shown below. Interest shall be calculated using a year of 360 days and
twelve thirty-day months.
The person in whose name any 1993 Series Bond is registered at the close of
business on any record date (as hereinbelow defined) with respect to any
Interest Payment Date shall be entitled to receive the interest payable on
such Interest Payment Date notwithstanding the cancellation of such 1993
Series Bond upon any transfer or exchange thereof (including any exchange
effected as an incident to a partial redemption thereof) subsequent to the
record date and prior to such Interest Payment Date, except that, if and to
the extent that the Agency shall default in the payment of the interest due on
any Interest Payment Date, then the registered holders of 1993 Series Bonds on
the record date with respect to such Interest Payment Date shall have no
further right to or claim in respect of such defaulted interest as such
registered holders on such record date, and the persons entitled to receive
payment of such defaulted interest thereafter payable or paid on any 1993
Series Bonds shall be the registered holders of such 1993 Series Bonds on the
record date for payment of such defaulted interest. The term "record date" as
used in this Section 2.1, and in the form of the 1993 Series Bonds, with
respect to any Interest Payment Date applicable to the 1993 Series Bonds shall
mean the January 15 next preceding a February 1 Interest Payment Date
or the July 15 next preceding an August 1 Interest Payment Date, as the case
may be (or the business day next preceding such January 15 or July 15 if such
January 15 or July 15 is not a business day), or such record date established
for defaulted interest as hereinafter provided.
In case of failure by the Agency to pay any interest when due, the claim
for such interest shall be deemed to have been transferred by transfer of any
1993 Series Bond registered on the books of the Agency, and the Trustee, by
not less than 15 days prior written notice mailed to the persons in whose
names the 1993 Series Bonds are registered at the close of business on the
fifth day preceding the date of mailing, may fix a subsequent record date
for determination of holders entitled to payment of such interest. Such
provision for establishment of a subsequent record date, however, shall in no
way affect the rights of Bondholders or of the Trustee consequent on any
default.
[FORM OF 1993 SERIES BOND]
No. R_ $
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
5 7/8% POLLUTION CONTROL REVENUE REFUNDING BOND
1993 SERIES
(EASTERN EDISON COMPANY PROJECT)
THIS BOND DOES NOT CONSTITUTE A GENERAL OBLIGATION OF THE MASSACHUSETTS
INDUSTRIAL FINANCE AGENCY NOR A DEBT OR PLEDGE OF THE FAITH AND CREDIT OR THE
TAXING POWER OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY POLITICAL SUBDIVISION
THEREOF; THE PRINCIPAL OF AND INTEREST AND PREMIUM, IF ANY, ON THIS BOND ARE
PAYABLE SOLELY FROM THE REVENUES AND FUNDS PLEDGED FOR THEIR PAYMENT IN
ACCORDANCE WITH THE LOAN AGREEMENT AND THE TRUST AGREEMENT REFERRED TO HEREIN.
The Massachusetts Industrial Finance Agency (the "Agency"), for value
received, hereby promises to pay (but only from the special funds hereinafter
referred to) to, or registered assigns, on August 1, 2008, the principal
sum of Dollars in lawful money of the United States of America, and to pay
(but only from the special funds hereinafter referred to) interest thereon in
like money from the Interest Payment Date next preceding the date of
authentication of this Bond (unless this Bond is authenticated on an Interest
Payment Date, in which event it shall bear interest from that date, or unless
this Bond is authenticated prior to February 1, 1994, in which event it shall
bear interest from July 1, 1993) until payment of such principal sum,
at the rate of five and seven-eighths percent (5 7/8%) per annum, payable
semi-annually on February 1 and August 1 in each year, commencing February 1,
1994. Interest shall be calculated using a year of 360 days and twelve thirty-
day months.
The principal of and premium, if any, on this Bond are payable, upon the
surrender hereof, at the corporate trust office in Boston, Massachusetts, of
Shawmut Bank, N.A., as Trustee and Paying Agent (with any successor trustee
and paying agent, the "Trustee") under a Trust Agreement dated as of July
1, 1993 (the "Trust Agreement") between the Agency and the Trustee. Interest
on this Bond is payable by check drawn upon the Trustee and mailed to the
registered address of the registered owner of this Bond. The interest so
payable upon any February 1 or August 1 will, subject to certain exceptions
described on the reverse thereof, be paid to the person in whose name this
Bond is registered at the close of business on the January 15 preceding such
February 1 or the July 15 preceding such August 1, as the case may be (or the
business day next preceding such January 15 or July 15 if such January 15 or
July 15 is not a business day). Payment of the principal of, premium, if any,
and interest on this Bond shall be made in any coin or currency of the United
States of America which, at the time of payment, is legal tender for payment
of public and private debts.
Unless this 1993 Series Bond is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the
Agency or its agent for registration of transfer, exchange, or payment,
and any 1993 Series Bond issued is registered in the name of CEDE &
Co., or in such other name as is requested by an authorized representative of
DTC (and any payment is made to CEDE & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, CEDE & Co., has an interest
herein.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH
FOLLOWING THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION HEREON AND SUCH FURTHER
PROVISIONS SHALL FOR AT.T. PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT
THIS PLACE.
It is hereby certified that all of the conditions, things and acts required
to exist, to have happened and to have been performed precedent to and in
the issuance of this Bond do exist, have happened and have been performed in
due time, form and manner as required by the Constitution and laws of The
Commonwealth of Massachusetts.
This Bond shall not be entitled to any benefit under the Trust Agreement,
or become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, the Agency has caused this Bond to be executed in its
name by the manual or facsimile signature of its Deputy Director and its
official seal to be impressed (or a facsimile thereof to be imprinted)
hereon.
DATED: MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
by Deputy Director
(Form of Trustee's Certificate of Authentication)
Trustee's Certificate of Authentication
This Bond is one of the Bonds of the issue described in and issued under the
within-mentioned Trust Agreement.
SHAWMUT BANK, N.A.,
as Trustee
Dated: By Authorized Signer
(FORM OF REVERSE OF 1993 SERIES BOND)
This Bond is one of the bonds of the Agency designated as the
"Massachusetts Industrial Finance Agency 5 7/8% Pollution Control Revenue
Refunding Bonds, 1993 Series (Eastern Edison Company Project)" (the "1993
Series Bonds"), aggregating $40,000,000 in principal amount. The proceeds of
the 1993 Series Bonds will be used to make a loan to Eastern Edison Company
(the "Company") evidenced by a Loan Agreement dated as of July 1, 1993 (the
"Loan Agreement") between the Company and the Agency, which will be used
to repay the 1983 Loan (as defined in the Trust Agreement). The Loan Payments
under (and as defined in) the Loan Agreement will include amounts sufficient
to pay the principal of and interest on, and the premium, if any, on the 1993
Series Bonds as the same become due.
The 1993 Series Bonds are authorized to be issued pursuant to the
provisions of Chapters 23A and 40D of the Massachusetts General Laws, each as
amended (the "Enabling Act"), and, together with any Additional Bonds (as
defined in the Trust Agreement) as may be issued on a parity therewith under
the Trust Agreement (said 1993 Series Bonds and any such Additional Bonds
being hereinafter collectively called the "Bonds") are all issued or to
be issued under and equally and ratably secured by the Trust Agreement. The
1993 Series Bonds are special obligations of the Agency and, as and to
the extent set forth in the Trust Agreement, are payable solely from,
and are secured by a pledge of and lien on, the Pledged Receipts (as
defined in the Trust Agreement).
This Bond is transferable, as provided in the Trust Agreement, only upon
the books of the Agency kept for that purpose at the principal corporate trust
office of the Trustee, by the registered owner hereof in person or by his
attorney duly authorized in writing, upon surrender hereof together with a
written instrument of transfer satisfactory to the Trustee duly executed by
the registered owner or such duly authorized attorney, and thereupon a
new 1993 Series Bond or Bonds of the same aggregate principal amount as the
surrendered Bond shall be issued in the name of the transferee as provided in
the Trust Agreement and upon payment of charges therein prescribed. The
Agency, the Trustee and any Paying Agent of the Agency may treat and consider
the person in whose name this Bond is registered as the holder and absolute
owner hereof for the purpose of receiving payment of, or on account of, the
principal or premium hereof and interest due hereon and for all other
purposes whatsoever. Neither the Agency nor the Trustee shall be required (a)
to transfer or exchange Bonds during a period beginning at the opening of
business on the fifteenth day next preceding an Interest Payment Date
or next preceding any date of selection of Bonds to be redeemed and ending at
the close of business on such Interest Payment Date or the day on which notice
of such redemption is given; or (b) to transfer or exchange any Bond
called in whole, or the called portion of any Bond called in part, for
redemption. Subject to the provisions of the Trust Agreement, if this Bond is
surrendered for any transfer or exchange between the record date for any
Interest Payment Date and such Interest Payment Date, the new Bond will be
dated such Interest Payment Date.
The Trust Agreement provides that in the event of any default in payment of
the interest due on any Interest Payment Date, such interest shall not be
payable to the holder of this Bond on the original record date but shall be
paid to the registered holder of such Bond on the subsequent record date
established for payment of such defaulted interest.
The Bonds are issuable in the form of registered Bonds only without
coupons, in the denomination of $5,000 or any integral multiple thereof. This
Bond may, at the option of the registered owner hereof, be exchanged for an
equal aggregate principal amount of 1993 Series Bonds of any of the authorized
denominations, upon surrender hereof at the principal corporate trust office
of the Trustee together with a written instrument of transfer satisfactory to
the Trustee duly executed by the registered owner or by his attorney, duly
authorized in writing, as provided in the Trust Agreement and upon the payment
of charges therein prescribed.
Reference is hereby made to the Trust Agreement and to the Loan Agreement
and to all agreements supplementing or amending either thereof, for a
description of the rights under the Trust Agreement of the registered owners
of the 1993 Series Bonds, of the nature and extent of the security for the
1993 Series Bonds, of the rights, duties and immunities of the Trustee and of
the rights, obligations and immunities of the Agency thereunder, to all
of the provisions of which Trust Agreement and Loan Agreement the registered
owner of this 1993 Series Bond, by acceptance hereof, assents and agrees.
The holder of this 1993 Series Bond shall have no right to enforce the
provisions of the Trust Agreement or to institute action to enforce the
covenants therein, or to take any action with respect to any event of default
under the Trust Agreement, or to institute, appear in or defend any suit or
other proceedings with respect thereto, except as provided in the Trust
Agreement. Modifications or alterations of the Loan Agreement or the
Trust Agreement, or of any amendments or supplements thereto, may be
made only to the extent and in the circumstances permitted by the Trust
Agreement. In certain events, on the conditions, in the manner and with
the effect set forth in the Trust Agreement, the principal of all the
1993 Series Bonds issued under the Trust Agreement and then outstanding may
become or may be declared due and payable before the stated maturity thereof,
together with interest accrued thereon.
Optional Redemption: The 1993 Series Bonds are subject to redemption prior
to stated maturity on any date on or after August 1, 2003, at the option of
the Company, in whole or in part by lot or in any other manner deemed fair
by the Trustee, provided that for so long as CEDE & Co., as nominee of
The Depository Trust Company ("DTC") is the registered owner of the
1993 Series Bonds, the particular bonds or portions thereof to be redeemed
shall be selected by DTC, in such manner as DTC may deem fair. The 1993
Series Bonds may be redeemed from any source of available funds, on any date
on or after August 1, 2003, at the following redemption prices (expressed in
terms of the percentages of the principal amount of Bonds to be redeemed),
together, in each case, with interest accrued thereon to the date fixed for
redemption:
Redemption Dates Inclusive Price
August 1, 2003-July31,2004 102%
August 1, 2004-July31,2005 101%
Thereafter 100%o
Extraordinary Optional Redemption: The 1993 Series Bonds are subject to
redemption in whole on any date prior to their stated maturity, at the option
of the Company, upon the occurrence of any of the following events:
(a) Damage or destruction to the Project or the Plant shall have occurred
to such extent that, in the reasonable judgment of the Company and Montaup,
the Project or the Plant, as the case may be, cannot reasonably be repaired,
rebuilt or restored within a period of six months to its condition immediately
preceding such damage or destruction.
(b) Loss of title to or use of a substantial part of the Project or the
Plant as a result of the exercise of the power of eminent domain shall have
occurred which, in the reasonable judgment of the Company and Montaup, results
or is likely to result in Montaup being prevented from carrying on its normal
operations at the Plant for a period of not less than six months.
(c) (i) Unreasonable burdens or regulations or excessive liabilities shall
have been imposed upon Montaup with respect to the Project or the Plant or the
operation thereof, or (ii) changes in the economic availability of raw
materials, operating supplies, fuel or other energy sources or supplies, or
facilities necessary for the operation of the Project or any other property of
Montaup material to the conduct of its operations at the site of the Project
or such technological or other changes shall have occurred, which the Company
and Montaup cannot reasonably overcome or control, either of which events in
the reasonable judgment of the Company and Montaup renders the Project or such
other property of Montaup material to the conduct of its operations at the
site of the Project uneconomic for such purposes.
(d) The acquisition, construction, installation and/or operation of the
Project or operation of the Plant shall have been enjoined or shall otherwise
have been prohibited by any order, decree, rule or regulation of any court or
of any location, state or federal regulatory body, administrative agency or
other governmental body for a period of not less than six months.
(e) A determination that the interest income on any 1993 Series Bond does
not qualify for the exclusion from gross income of the owner thereof ("exempt
interest") under Section 103 of the Code, other than a determination that such
owner is a "substantial user" of the Project or a "related person" within the
meaning of Section 103(b)(13) of the Code, which determination shall be deemed
to have been made upon the occurrence of the first to occur of the following:
(i) the date on which the Company determines that the interest income
on any 1993 Series Bond does not qualify as exempt interest if
such determination is supported by a written opinion to that
effect of nationally recognized bond counsel satisfactory to the
Trustee (who may also be counsel to the Company); or
(ii) the date on which the Company shall receive notice from the
Trustee in writing that the Trustee has been advised by the
holder of any 1993 Series Bond that, as a result of any
authorized federal administrative action or by final decree,
judgment or order of any federal court or authorized federal
administrative body, it has been determined that, as a result of
a failure by the Company to observe any agreement or
representation in the Loan Agreement, the interest payable on the
1993 Series Bonds does not qualify as exempt interest. Any such
determination will not be considered final for this purpose:
(A) unless the holder of the 1993 Series Bond involved in the
proceeding or action resulting in the determination gives
the Company and the Trustee prompt written notice of the
commencement thereof and such holder offers the Company
an opportunity to contest the determination, either
directly or in the name of the holder of the 1993 Series
Bond; and either
(B) the Company declines to contest such determination; or
(C) the Company elects to contest such determination and agrees
to pay all expenses in connection therewith and indemnify
such 1993 Series Bond holder against all liabilities in
connection therewith, in which case such determination
shall not be considered final until the earlier of: (1) the
date on which the Company in its sole discretion elects to
discontinue such contest, or (2) conclusion of any
appellate court review of such determination, if sought.
If this 1993 Series Bond or any portion hereof is called for redemption,
and payment is duly provided there for as specified in the Trust Agreement,
interest on this 1993 Series Bond or the portion hereof called for redemption
shall cease to accrue from and after the date fixed for redemption.
1993 Series Bonds or portions thereof may be redeemed only in the principal
amount of Five Thousand Dollars ($5,000) or any integral multiple thereof.
Notice of redemption shall be mailed, not less than 30 nor more than 60
days prior to the redemption date, to each registered owner of each 1993
Series Bond called for redemption, but neither failure to mail such notice nor
any defect in any notice so mailed shall affect the sufficiency of the
proceedings for the redemption of any other 1993 Series Bonds.
If an event of default, as defined in the Trust Agreement, shall occur, the
principal of all 1993 Series Bonds may be declared due and payable upon the
conditions, in the manner and with the effect provided in the Trust Agreement.
The Trust Agreement also provides that in certain events such declaration and
its consequences may be rescinded as therein provided.
This 1993 Series Bond shall not constitute the personal obligation, either
jointly or severally, of any director, officer, employee or agent of the
Agency.
[FORM FOR TRANSFER]
FOR VALUE RECEIVED, , the undersigned _______ hereby sells, assign, and
transfers unto (Please insert Social Security Number or other identifying
number of assignee) the within Bond and all rights thereunder and hereby
irrevocably constitutes and appoints _____________ attorney to transfer the
within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: NOTICE:
The signature to this assignment must correspond with the name as it
appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
b. The provisions of this subsection 2.1(b) shall apply with respect to any
1993 Series Bond registered to CEDE & Co. or any other nominee of DTC while
the Book-Entry Only System is in effect. Book-Entry Only System shall mean
the system of registration of the 1993 Series Bonds described below: The 1993
Series Bonds shall be issued in the form of a single authenticated fully-
registered bond in substantially the form set forth in this Section 2.1. Prior
to the Closing Date, there shall be deposited with DTC one certificated
Bond registered in the name of CEDE & Co. as DTC's nominee in the aggregate
amount of the 1993 Series Bonds. Such Bond shall bear the following legend:
Unless this 1993 Series Bond is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the Agency
or its agent for registration of transfer, exchange or payment, and any 1993
Series Bond issued is registered in the name of CEDE & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to CEDE & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, CEDE & Co., has an interest herein.
On the date of original delivery thereof, the 1993 Series Bonds shall be
registered in the registry books of the Trustee in the name of CEDE & Co., as
nominee of DTC as agent for the Agency in maintaining the Book-Entry Only
System. With respect to 1993 Series Bonds registered in the registry books
kept by the Trustee in the name of CEDE & Co. as nominee of DTC, the Agency,
the Paying Agent, the Company and the Trustee shall have no responsibility or
obligation to any Participant (which means securities brokers and dealers,
banks, trust companies, clearing corporation and various other entities, some
of whom or their representatives own DTC) or to any Beneficial Owner (which
means, when used with reference to the Book-Entry-Only System, the person who
is considered the beneficial owner of a 1993 Series Bond pursuant to the
arrangements for book-entry determination of ownership applicable to DTC) with
respect to the following:
i. the accuracy of the records of DTC, CEDE & Co. or any Participant with
respect to any ownership interest in the 1993 Series Bonds;
ii. the delivery to any Participant, any Beneficial Owner or any other
person, other than DTC, of any notice with respect to the 1993 Series
Bonds, including any notice of redemption; or
iii. the payment to any Participant, any Beneficial Owner or any other
person, other than DTC, of any amount with respect to the principal of
or premium, if any, or interest on the 1993 Series Bonds.
The Trustee or any Paying Agent shall pay all principal of and premium, if
any, and interest on the 1993 Series Bonds only to or upon the order of DTC,
and all such payments shall be valid and effective fully to satisfy and
discharge the Agency's obligations with respect to the principal of and
premium, if any, and interest on such 1993 Series Bonds to the extent
of the sum or sums so paid. Except as provided below, no person other than
DTC shall receive an authenticated 1993 Series Bond evidencing the obligation
of the Agency to make payments of principal of and premium, if any, and
interest pursuant to this Trust Agreement. Upon delivery by DTC to the
Trustee of written notice to the effect that DTC has determined to substitute
a new nominee in place of CEDE & Co., the words "CEDE & Co." in this Trust
Agreement shall refer to such new nominee of DTC.
c. Upon receipt by the Agency and the Trustee of written notice from DTC to
the effect that DTC is unable or unwilling to discharge its responsibilities,
the Trustee shall authenticate, transfer and exchange the 1993 Series
Bonds as requested by DTC in appropriate amounts, and whenever DTC requests
the Agency, the Paying Agent and the Trustee to do so, the Trustee, the Paying
Agent and the Agency will cooperate with DTC in taking appropriate action
after reasonable notice: (i) to arrange for a substitute bond depository
willing and able upon reasonable and customary terms to maintain custody of
the 1993 Series Bonds or (ii) to make available 1993 Series Bonds registered
in whatever name or names the Bondholders transferring or exchanging such 1993
Series Bonds shall designate.
d. In the event the Agency determines that it is in the best interests of
the Beneficial Owners that they be able to obtain 1993 Series Bond
certificates, the Agency may so notify DTC, the Paying Agent and the Trustee,
whereupon DTC will notify the Participants of the availability through DTC of
certificates for the 1993 Series Bonds. In such event, the Trustee shall
authenticate, transfer and exchange certificates for the 1993 Series Bonds as
requested by DTC in appropriate amounts and in authorized denominations.
Whenever DTC requests the Agency and the Paying Agent to do so, the Paying
Agent and the Authority will cooperate with DTC in taking appropriate action
after reasonable notice to make available 1993 Series Bonds registered in
whatever name or names the Beneficial Owners transferring or exchanging 1993
Series Bonds shall designate.
e. Notwithstanding any other provision of this Trust Agreement to the
contrary, so long as any 1993 Series Bond is registered in the name of CEDE &
Co., as nominee of DTC, all payments with respect to the principal of,
premium, if any, and interest on such 1993 Series Bond and all notices with
respect to such 1993 Series Bond shall be made and given, respectively,
to DTC, as provided in the Representation Letter, the form of which is
Included as Exhibit 2.1 to this Trust Agreement.
Section 2.2 Delivery of 1993 Series Bonds. Upon the execution and delivery
of this Trust Agreement, the Agency shall execute and deliver the 1993 Series
Bonds to the Trustee. The Trustee shall authenticate the 1993 Series Bonds and
deliver them to the Purchasers upon the filing with the Trustee of the
following documents, namely:
1. A copy, duly certified by the Secretary of the Agency, of the
resolutions adopted by the Agency authorizing the execution and delivery of
the Loan Agreement, this Trust Agreement, the Inducement Letter and the Bond
Purchase Agreement and the issuance and sale of the 1993 Series Bonds.
2. A copy, duly certified by the Clerk or any Assistant Clerk of the
Company, of the vote or votes adopted by its Board of Directors authorizing
the execution and delivery of the Loan Agreement and the Inducement Letter.
3. Original executed counterparts of the Loan Agreement, this Trust
Agreement, the Bond Purchase Agreement, the Inducement Letter and all other
agreements, if any, required by the Purchasers as provided in the Bond
Purchase Agreement and a signed counterpart of the opinion of McDermott, Will
& Emery as Bond Counsel required by the Bond Purchase Agreement with an
accompanying opinion of said Bond Counsel directed to the Trustee.
4. A request and authorization to the Trustee on behalf of the Agency,
signed by its Executive Director, its Deputy Director or its Vice Chairman to
authenticate and deliver the 1993 Series Bonds to the Purchasers, upon payment
to the Trustee for the account of the Agency, of the sum specified in said
request to be paid by the Purchasers.
The proceeds of the 1993 Series Bonds (except for any accrued interest paid
at the sale of the 1993 Series Bonds) shall be transferred by the Trustee to
State Street Bank and Trust Company, as trustee, for credit to the Bond Fund
established pursuant to the Loan Agreement dated as of August 1, 1983
between the Company and the Agency, and shall be immediately applied by the
Agency to the outstanding principal balance of the Loan made by the Agency to
the Company pursuant to such Loan Agreement. Accrued interest paid at the sale
of the 1993 Series Bonds shall be deposited in the Bond Fund established under
section 4.1 hereof.
Section 2.3 Issuance of Additional Bonds. The Agency and the Company may,
without notice to or the consent of the Bondholders, from time to time agree
upon and approve the issuance and delivery of Additional Bonds hereunder for
any one or more of the following purposes: (a) acquiring, constructing,
reconstructing, improving and/or installing additional property to become part
of the Plant, including incidental expenses, or (b) refunding the Bonds.
Additional Bonds shall be issued only in fully registered form and shall bear
such date or dates, interest rate or rates, maturities, redemption dates,
redemption premiums and prices as are approved in writing by the Agency and
the Company. All of such Additional Bonds shall be on a parity with the 1993
Series Bonds and any Additional Bonds theretofore or thereafter issued, except
as may be otherwise provided in Section 7.5 as to the application of moneys.
The Agency shall execute and deliver such Additional Bonds to the Trustee
which shall authenticate and deliver the same to the purchaser thereof upon
the filing with the Trustee of the following documents, namely:
1. A copy, duly certified by the Secretary of the Agency, of the
resolutions adopted by the Agency authorizing the issuance and sale of the
Additional Bonds and the execution and delivery of the related supplemental
agreements to this Trust Agreement and the Loan Agreement and a bond purchase
agreement pertaining to the Additional Bonds.
2. A copy, duly certified by the Clerk or any Assistant Clerk of the
company, of the vote or votes adopted by its Board of Directors authorizing
the execution and delivery of the applicable amendment or supplement to the
Loan Agreement in connection with the issuance of such Additional Bonds.
3. Original executed counterparts of such supplemental agreements and
bond purchase agreement and of such other guaranties and agreements, if any,
as may be required by the purchaser or purchasers of such Additional Bonds as
provided in such bond purchase agreement and a signed counterpart of the
opinion of nationally recognized bond counsel with an accompanying opinion of
nationally recognized bond counsel addressed to the Trustee.
4. A request and authorization to the Trustee on behalf of the Agency,
signed by its Executive Director, Deputy Director or Vice Chairman to
authenticate and deliver the Additional Bonds to the purchaser or purchasers
thereof upon payment to the Trustee for the account of the Agency of the sum
specified in such request to be paid by the Purchaser. The proceeds of the
Additional Bonds shall be deposited with the Trustee (except for accrued
interest thereon) to the credit of a project fund or comparable fund created
by a supplemental agreement entered into pursuant to Article IX.
5. An opinion of nationally recognized bond counsel (who may be counsel
to the Company) that the issuance of such Additional Bonds will not affect the
exemption from federal income taxation on the interest paid on any Outstanding
Bonds.
Section 2.4 Execution. Authentication. The Bonds shall be executed on
behalf of the Agency by the manual or facsimile official signature of its
Executive Director, its Deputy Director or its Vice Chairman and shall have
the official seal of the Agency impressed thereon or a facsimile imprinted
thereon. In case any officer whose signature or facsimile of whose signature
shall appear on the Bonds shall cease to be such officer before the delivery
of such Bond, such signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, as if he had remained in office until delivery,
and any Bond may be signed on behalf of the Agency by such persons as, at the
time of execution of such Bond shall be the proper officers of the Agency,
even though at the date of such Bond or of the delivery of this Trust
Agreement any such person was not such officer.
No Bond shall be valid or obligatory for any purpose or be entitled to any
security or benefit hereunder unless and until a certificate of authentication
on the Bond, as provided in Section 2.1, shall have been duly executed by an
authorized signer of the Trustee, and such executed certificate of the Trustee
upon a Bond shall be conclusive evidence that the Bond has been authenticated
and delivered hereunder. It shall not be necessary that the same person sign
the certificate of authentication on all of the Bonds issued
hereunder.
Section 2.5 Interchangeability of Bonds. Subject to the conditions and
upon the payment of the charges provided in this Trust Agreement, Bonds, upon
surrender thereof at the principal corporate trust office of the Trustee with
a written instrument of transfer satisfactory to the Trustee duly executed by
the registered owner thereof or by his attorney duly authorized in writing,
may, at the option of the registered owner thereof, be exchanged for an equal
aggregate principal amount of registered Bonds of the same series,
designation, maturity and interest rate of any other authorized denominations.
Section 2.6 Transfer and Ownership. Each Bond shall be transferable only
upon the books of the Agency, which shall be kept for the purpose at the
principal corporate trust office of the Trustee, by the registered owner
thereof in person or by his attorney duly authorized in writing, upon
surrender thereof together with a written instrument of transfer satisfactory
to the Trustee duly executed by the registered owner or his duly authorized
attorney and containing the Social Security or federal tax identification
number of the transferee and, if such transferee is a trust, the name and
social security or federal tax identification number of the settlor and the
trustee of the transferee. Upon the transfer of any such Bond, the Agency
shall issue and the Trustee shall authenticate in the name of the transferee a
new Bond or Bonds of the same aggregate principal amount and of the same
series, designation, maturity and interest rate as the surrendered Bond.
The Trustee, the Agency and any Paying Agent may treat and consider the
person in whose name any Bond for the time being shall be registered upon the
books of the Trustee as the absolute owner of such Bond, whether such Bond
shall be overdue or not, for the purpose of receiving payment of, or on
account of, the principal or premium, if any, thereof and the interest
thereon, and for all other purposes whatsoever and all such payments so
made to any such registered owner or upon his order shall be valid and
effectual to satisfy and discharge the liability upon such Bond to the extent
of the sum or sums so paid, and neither the Trustee, the Agency nor any
Paying Agent shall be affected by any notice to the contrary.
Section 2.7 Regulations With Respect to Exchanges and Transfers. In all
cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Agency shall execute and the Trustee shall authenticate and
deliver Bonds in accordance with the provisions of this Trust Agreement. For
every such exchange or transfer of Bonds, whether temporary or definitive, the
Agency or the Trustee may make a charge sufficient to reimburse them for any
tax, fee or other governmental charge required to be paid with respect to such
exchange or transfer. Neither the Agency nor the Trustee shall be required
(a) to transfer or exchange Bonds during a period beginning at the opening of
business on the fifteenth day next preceding an Interest Payment Date or next
preceding any date of selection of Bonds to be redeemed and ending at the
close of business on such Interest Payment Date or the date on which notice of
such redemption is given; or (b) to transfer or exchange any Bond called in
whole, or the called portion of any Bond called in part, for redemption.
Section 2.8 Bonds Mutilated. Destroyed. Stolen or Lost. In case any Bond
shall become mutilated or be destroyed, stolen or lost, the Agency shall
execute and the Trustee shall authenticate and deliver, a new Bond of like
series, designation, maturity, interest rate and principal amount as the Bond
so mutilated, destroyed, stolen or lost, (a) in exchange and substitution for
such mutilated Bond, upon surrender and cancellation of such mutilated
Bond or (b) in lieu of and substitution for the Bond destroyed, stolen or
lost, upon filing with the Trustee of evidence satisfactory to the Agency and
the Trustee that such Bond has been destroyed, stolen or lost and proof of
ownership thereof. In every case the applicant for a substituted Bond shall
furnish the Agency, the Company and the Trustee with indemnity satisfactory to
them and comply with such other reasonable regulations as the Agency, the
Company and the Trustee may prescribe and pay such expenses as the Agency,
the Company and the Trustee may incur. All Bonds so surrendered to the Trustee
shall be canceled by it. Any such new Bonds issued pursuant to this Section in
substitution for Bonds alleged to be destroyed, stolen or lost shall
constitute original additional contractual obligations on the part of the
Agency, whether or not the Bonds so alleged to be destroyed, stolen or lost be
at any time enforceable by anyone, and shall be equally secured by and
entitled to equal proportionate benefits with all other Bonds issued
under the Trust Agreement, in any moneys or securities held by the Agency or
the Trustee for the benefit of the holders of Bonds.
Section 2.9 Temporary Bonds. Until the definitive Bonds are prepared, the
Agency may execute, in the same manner as is provided in Section 2.4, and,
upon the request of the Agency, the Trustee shall authenticate and deliver one
or more temporary Bonds, registerable as to principal and interest. Such
temporary Bonds shall be subject to the same provisions, limitations and
conditions as the definitive Bonds except as to the denomination thereof and
as the exchangeability for Bonds and shall be substantially of the tenor of
the definitive Bonds in lieu of which such temporary Bond or Bonds are issued,
in denominations of $5,000 or any integral multiple thereof authorized by the
Agency, and with such omissions, insertions and variations as may be
appropriate to temporary Bonds. The Agency at its own expense shall prepare
and shall deliver in exchange there for, definitive Bonds, of the same
aggregate principal amount and maturity as the temporary Bonds surrendered.
Until so exchanged, the temporary Bonds shall in all respects be entitled to
the same benefits and security as definitive Bonds issued pursuant to the
Trust Agreement.
If the Agency shall authorize the issuance of temporary Bonds in more than
one denomination, the holder of any temporary Bond or Bonds may, at his
option, surrender the same to the Trustee in exchange for another temporary
Bond or Bonds of like aggregate principal amount and maturity of any other
authorized denomination or denominations, and thereupon the Agency shall
execute and the Trustee, in exchange for the temporary Bond or Bonds so
surrendered and upon payment of the taxes, fees and charges provided for in
Section 2.7, shall authenticate and deliver a temporary Bond or Bonds of like
aggregate principal amount and maturity in such other authorized denomination
or denominations as shall be requested by such holder.
All temporary Bonds surrendered in exchange either for another temporary
Bond or Bonds or for a definitive Bond or Bonds shall be forthwith canceled by
the Trustee.
Section 2.10 Cancellation and Destruction of Bonds. All Bonds paid or
redeemed, either at or before maturity, shall be delivered to the Trustee when
such payment or redemption is made, and such Bonds, together with all Bonds
purchased by the Trustee and all registered Bonds surrendered in any exchanges
or transfers, shall thereupon be promptly canceled. Bonds so canceled may at
any time be cremated or otherwise destroyed by the Trustee, which shall
execute a certificate of cremation or destruction in duplicate by the
signature of one of its authorized officers describing the Bonds so cremated
or otherwise destroyed, and one executed certificate shall be filed with the
Agency and the other executed certificate shall be retained by the Trustee.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.1 Redemption Dates and Prices for 1993 Series Bonds.
3.1.1 The 1993 Series Bonds are subject to redemption by the Agency, at
the option of the Company, prior to stated maturity on any date on or after
August 1, 2003, in whole or in part. The Bonds may be redeemed from any source
of available funds on any date, on or after August 1, 2003, at redemption
prices equal to the following percentages of the principal amount redeemed,
plus in each case accrued interest to the date fixed for redemption:
Redemption Dates Incluvsive Price
August 1, 2003 - July 31, 2004 102%
August 1, 2004 - July 31, 2005 101%
Thereafter 100%
3.1.2 In addition to redemption provided for in Section 3.1.1, the 1993
Series Bonds shall be redeemed in whole and not in part by the Agency, at the
option of the Company, on any date at a redemption price of 100% of the
principal amount redeemed, plus accrued interest to the redemption date, if
any of the events set forth in the paragraph headed "Extraordinary Optional
Redemption" in the form of the 1993 Series Bond in Section 2.1 shall have
occurred.
3.1.3 If less than all of the Outstanding 1993 Series Bonds are called for
redemption at any time, the selection of such 1993 Series Bonds, or portions
of 1993 Series Bonds, to be called shall be made by lot or in any other manner
deemed fair by the Trustee provided that for so long as CEDE & Co., as nominee
of DTC is the registered owner of the 1993 Series Bonds, the particular bonds
or portions thereof to be redeemed shall be selected by DTC, in such manner as
DTC may deem fair. Upon redemption of any 1993 Series Bond in part only, the
Trustee shall authenticate and deliver to the owner thereof a new 1993 Series
Bond or Bonds of authorized denominations in any aggregate principal amount
equal to the unredeemed portion of the Bond so redeemed. Bonds for portions
thereof) may be redeemed only in the principal amount of Five Thousand Dollars
($5,000) or any integral multiple thereof.
Section 3.2 Notice of Redemption of Bonds. Notice of the call for any
redemption of Bonds, identifying by designation, letters, numbers, or other
distinguishing marks, the Bonds, or portions of Bonds in amounts of $S,000 or
an integral multiple thereof, to be redeemed, the redemption price to be paid,
the date fixed for redemption and the place or places where the amounts due
upon such redemption are payable, shall be mailed by the Trustee by first
class mail, postage prepaid not less than 30 nor more than 60 days prior to
the redemption date, to the registered owner of any Bonds or portions thereof
to be redeemed, but neither failure to mail such notice nor any defect in any
notice so mailed shall affect the sufficiency of the proceedings for the
redemption of any other Bonds.
Section 3.3 Payment of Bonds Called for Redemption. Notice having been
given in the manner provided in Section 3.2 hereof, the Bonds (and portions of
Bonds) so called for redemption shall become due and payable on the redemption
date at the redemption price, plus interest accrued to the redemption date;
and, upon presentation and surrender thereof, at the place or places specified
in such notice, such Bonds (and portions of Bonds) shall be paid at the
redemption price plus interest accrued and unpaid to the redemption date. If,
on the redemption date, moneys for the redemption of all such Bonds (and
portions of Bonds) to be redeemed, together with interest to the redemption
date, are held by the Trustee so as to be available there for on said date and
if notice of redemption shall have been given as aforesaid, then, from and
after the redemption date such Bonds (and portions of Bonds) so called for
redemption shall cease to bear interest and said Bonds (and portions of Bonds)
shall no longer be considered as outstanding hereunder. If said moneys shall
not be so available on the redemption date, such Bonds (and portions of Bonds)
shall continue to bear interest until paid at the same rate as they would have
borne had they not been called for redemption.
ARTICLE IV FUNDS AND REVENUES
Section 4.1 Bond Fund. A Bond Fund is hereby established with the Trustee.
From the proceeds of each issuance and delivery of Bonds there shall be
deposited in the Bond Fund a sum equal to the accrued interest paid by the
purchasers of the Bonds. The moneys in the Bond Fund and any Investments held
as part of such Fund shall, except as otherwise provided in section 6.1, be
applied by the Trustee solely to the payment or redemption on the dates when
the same are respectively due of the principal of, premium, if any, and
interest on the Bonds and charges and disbursements of the Trustee. Moneys
deposited in the Bond Fund, including but not limited to moneys deposited as
permitted by Section 5.5 of the Loan Agreement shall be so applied within
thirteen (13) months after the same shall have been deposited. Interest on
Investments held as a part of such Fund shall be so applied within twelve (12)
months after the same shall have been received.
Section 4.2 Deposits and Payments. Deposits in the Bond Fund shall be made
solely from Pledged Receipts except as provided in Section 4.1. All payments
by the Trustee under this Trust Agreement shall be made solely from the
Trust Estate.
Section 4.3 Investment of Moneys in Bond Fund. Moneys in the Bond Fund held
by the Trustee hereunder shall be invested by the Trustee at the direction of
the Company in Investments with maturities at or before the time when such
moneys are required to be available. Any such Investments shall be held by the
Trustee as a part of such Fund. Any interest realized on any such Investment
and any profit or loss realized upon the sale or other disposition thereof
shall be credited or charged to such Fund. Investments shall be valued at
cost, face amount or market value, whichever is less. No investment shall
mature in any event later than twelve (12) months from the date of deposit in
such Fund of the moneys applied to the making of the Investment. No Investment
shall be made which would cause the Bonds to be constituted arbitrage bonds
under Section 148(a) of the Code and regulations then prescribed thereunder
and the Trustee shall be entitled to obtain an opinion from nationally
recognized bond counsel that the making of any Investment will not have such
result. The Trustee shall have no responsibility with respect to the price at
which an Investment is bought or sold.
Section 4.4 Moneys to be Held in Trust. All moneys deposited with the Trustee
hereunder shall be held by the Trustee in trust but need not be segregated
from other funds except as required by law.
ARTICLE V
REPRESENTATIONS AND COVENANTS OF THE AGENCY
Section 5.1 Representations.
A. The Agency is a body politic and corporate and a public instrumentality
of The Commonwealth of Massachusetts established under Chapter 23A of the
Massachusetts General Laws, with the powers under and pursuant to the Enabling
Act, to execute and deliver this Trust Agreement, the Bond Purchase Agreement
and the Loan Agreement, to perform its obligations under each thereof and to
issue and sell the 1993 Series Bonds;
B. The Agency has taken all necessary action and has complied with all
provisions of the Constitution of The Commonwealth of Massachusetts and the
Enabling Act (including but not limited to the making of the findings required
by Section 12 and 22 of Chapter 40D of the Massachusetts General Laws, to the
extent applicable to the 1993 Series Bonds) required to make this Trust
Agreement, the Bond Purchase Agreement, the Loan Agreement and the 1993
Series Bonds the valid obligations of the Agency that they purport to
be; and, when executed and delivered by the parties thereto, this Trust
Agreement and the Loan Agreement will constitute valid and binding agreements
of the Agency and be enforceable in accordance with their respective terms,
except as enforceability may be subject to the exercise of judicial discretion
in accordance with general equitable principles and to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws for the relief of
debtors heretofore or hereafter enacted to the extent that the same may be
constitutionally applied;
C. The Agency shall not take any action, or knowingly omit to take any
action within its control, which, if taken or omitted, would violate its
obligation under the non-arbitrage certificate delivered upon the issuance of
the 1993 Series Bonds.
D. When delivered to and paid for by the Purchasers in accordance with
the terms of the Bond Purchase Agreement and the Trust Agreement, the 1993
Series Bonds will constitute valid and binding special obligations of the
Agency enforceable in accordance with their terms, except as enforceability
may be subject to the exercise of judicial discretion in accordance with
general equitable principles and to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws for the relief of debtors
heretofore or hereafter enacted to the extent that the same may be
constitutionally applied, and will be entitled to the benefits of the Trust
Agreement.
E. The Agency makes no representation or warranty that the 1993 Series
Bonds and any income derived therefrom is or will be exempt from federal or
state taxation.
Section 5.2 Covenant as to Payment: Faith and Credit of Commonwealth Not
Pledged. The Agency covenants that it will promptly pay or cause to be paid
the principal of, interest, premium, if any, and other charges, if any, on
the Bonds at the place, on the dates and in the manner provided herein
and in the Bonds, provided, however, that the Bonds secured hereby do
not now and shall never constitute a general obligation of the Agency
or a pledge of the faith and credit of the Agency or a debt or pledge of the
faith and credit or the taxing power of The Commonwealth of Massachusetts or
any political subdivision thereof, and all covenants and undertakings by the
Agency hereunder and under the Bonds to make payments are special obligations
of the Agency payable solely from the Trust Estate.
Section 5.3 Issuance of Refunding Bonds. The Agency may issue, and the Agency
expressly reserves the right to issue, to the extent permitted by law,
refunding bonds under this Trust Agreement or another trust agreement to
refund all or any principal amount of any series of Bonds.
ARTICLE VI
DEFEASANCE
Section 6.1 Defeasance. When the Agency has paid or has caused to be paid to
the holders of the Bonds the principal, premium, if any, and interest due or
to become due thereon at the times and in the manner stipulated therein and
herein and all fees and expenses of the Trustee, of the Agency and of any
Paying Agent and all other amounts required to be paid under this Trust
Agreement, the Loan Agreement and the Bond Purchase Agreement have been paid
or provided for to the satisfaction of the Agency, of the Trustee and of any
Paying Agent, the lien of this Trust Agreement on the Trust Estate shall
terminate, and the Trustee shall promptly execute and deliver to the Company
and the Agency an appropriate discharge hereof and the Trustee and any Paying
Agent shall assign and deliver to the Company any property at the time subject
to the lien of this Trust Agreement which may then be in its possession,
except amounts held by the Trustee for the payment of the principal of,
premium, if any, and interest on the Bonds.
All Outstanding Bonds of a series or of a maturity within a series shall be
deemed to have been paid within the meaning of this Section when there shall
have been deposited with the Trustee, in trust for and irrevocably committed
thereto, sufficient cash or obligations defined in clause (i) of the
definition of Investments with maturities and interest rates adequate to
produce sufficient cash, (1) to pay, at their maturities or redemption dates,
any principal, premium, if any, and interest on such Bonds as they come due;
and (2) to pay or prepay all fees and expenses of the Agency, the Trustee and
any Paying Agent and all other amounts required to be paid under this Trust
Agreement, under the Loan Agreement and under the Bond Purchase Agreement.
Notwithstanding the termination of the lien hereof, if the Trustee is then
holding any funds for payment to any Bondholder, it shall continue to hold and
make payment of such funds in accordance herewith, and all other rights and
obligations hereunder which by their nature cannot be satisfied or performed
prior to the termination of the lien hereof shall survive until their
subsequent satisfaction or performance. Any amounts remaining in the Bond Fund
after all of the Outstanding Bonds shall be deemed to have been paid, and
after all other amounts required to be paid under this Trust Agreement, under
the Loan Agreement and under the Bond Purchase Agreement shall have been paid
or provided for to the satisfaction of the Agency and of the Trustee, shall be
paid to the Company.
Section 6.2 Nonpresentment of Bonds. If a Bond is not presented for payment
when the Outstanding Principal Amount thereof becomes due, either at maturity
or at the date fixed for redemption thereof or otherwise, and if funds
sufficient to pay all amounts due with respect to such Bond have been
deposited with the Trustee and irrevocably committed thereto, all liability of
the Agency to the holder thereof for the payment of such Bond shall forthwith
cease, and thereupon the Trustee shall hold such funds, without liability
for interest thereon, for the benefit of the holder of such Bond who shall
thereafter be restricted exclusively to such funds for any claim of whatever
nature on his part under this Trust Agreement or on, or with respect to, such
Bond. If such Bond is not presented to the Trustee for payment on or before
the fourth anniversary of said payment or redemption date, the Trustee shall
then pay to or upon the order of the Company the funds then so held by the
Trustee and thereafter the holder of such Bond shall look to the Company with
respect to such claim and the Trustee shall be discharged therefrom.
Section 6.3 Right of Company to Purchase Bonds for Cancellation. The Company
may purchase Bonds from holders thereof and deliver such Bonds to the Trustee
for cancellation.
ARTICLE VII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
Section 7.1 Defaults: Events of Default. If any of the following events occur,
it is hereby defined as and declared to be and to constitute an "event of
default" hereunder:
(1) Failure to pay the principal of, any premium on or interest on the
Bonds when the same is due; or
(2) Any "event of default" or default under the Loan Agreement or the
Bond Purchase Agreement; or
(3) The Agency is rendered incapable of fulfilling its obligations under
this Trust Agreement or under the Enabling Act, as it relates hereto.
Section 7.2 Acceleration. Upon the occurrence and continuance of any event of
default, the Trustee shall, upon and only upon the written request of the
holders of not less than 33% in aggregate principal amount of the Outstanding
Bonds, by written notice to the Agency and the Company, declare the
Outstanding Principal Amount of all Bonds (if not then due and payable) and
the interest accrued thereon to be due and payable immediately, and, upon said
declaration, such principal and interest shall become and be immediately due
and payable. Pursuant to such declaration, interest on the Bonds shall accrue
to the date determined by the Trustee for the tender of payment to the
holders of all Outstanding Bonds pursuant to such declaration.
If, at any time after such principal and interest shall have been so declared
due and payable and prior to the first to occur of (a) the ninetieth (9Oth)
day after such declaration, (b) the entry of a judgment in a court of law or
equity for enforcement hereunder or (c) the appointment, and the confirmation
thereof, of a receiver after an opportunity for hearing by the Agency and the
Company, all sums at the time payable under this Trust Agreement except the
principal of, and interest accrued after the next preceding interest payment
date on, the Bonds which have not reached their stated maturity dates and
which are due and payable solely by reason of said declaration shall have been
duly paid or provided for by deposit with the Trustee and all existing
defaults shall have been made good, then such payment or provision for payment
shall ipso facto constitute a waiver of such default and its consequences and
an automatic rescission and annulment of such declaration under the
above paragraph, but no such waiver or rescission shall extend to or affect
any subsequent event of default or impair any rights consequent thereon.
Section 7.3 Other Remedies: Rights of Bondholders. Upon the occurrence and
continuance of any event of default, the Trustee may pursue any available
remedy to enforce the payment of principal of, premium, if any, and interest
on the Bonds.
Upon any event of default and if requested so to do by holders of a majority
in aggregate principal amount of the Bonds then Outstanding and being
indemnified as provided in Section 8.2 of the Loan Agreement, the Trustee
shall exercise such of the rights and powers conferred by this Section and by
Section 7.2 as the Trustee, being advised by counsel, shall deem most
effective, or shall be directed by such request, to enforce and protect
the interests of the holders of the Bonds.
No remedy under this Trust Agreement or the Loan Agreement is intended to be
exclusive of any other remedy, but all remedies shall be cumulative and each
shall be in addition to any other remedy given to the Trustee or to the holder
of a Bond hereunder or thereunder or now or hereafter existing.
No delay or omission to exercise any right or power accruing upon any event of
default shall impair any such right or power or shall be construed to be a
waiver of any such event of default or acquiescence therein; and every
such right and power may be exercised from time to time and as often as may be
deemed expedient.
No waiver of any event of default hereunder or under the Loan Agreement,
whether by the Trustee or by the holder of a Bond, shall extend to or shall
affect any subsequent event of default or shall impair any rights or remedies
consequent thereon.
Section 7.4 Right of Bondholders to Direct Proceedings. Anything in this Trust
Agreement to the contrary notwithstanding but subject to the provisions of
Section 7.3, the holders of a majority in aggregate principal amount of Bonds
then Outstanding shall have the right at any time, by an instrument or
instruments in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection with
the enforcement of the terms and conditions of this Trust Agreement, or for
any other proceedings hereunder; provided, that such direction shall not be
otherwise than in accordance with the provisions of law and of this Trust
Agreement, and provided that the Trustee shall be indemnified as provided in
Section 8.2 of the Loan Agreement.
Section 7.5 Application of Moneys. Upon the occurrence and continuance of any
event of default all moneys received by the Trustee pursuant to any right
given or action taken under the provisions of this Article shall, subject to
any provisions made pursuant to Section 6.1, be deposited in the Bond Fund;
and all moneys in the Bond Fund (except funds for which provision has been
made under Section 6.2) shall, after payment of all Additional Payments (as
defined in the Loan Agreement) and other charges of the Agency, the Trustee
and any Paying Agent in accordance with this Trust Agreement and the Loan
Agreement, be applied first to the payment of interest, including interest on
overdue principal, then due or overdue on the Bonds without regard to the
order in which the same became due; and second to the payment of the principal
then due or overdue on the bonds without regard to the order in which the same
became due; or in such other order as may be determined by the Trustee
with the written consent of the holders of all Outstanding Bonds and, if the
Agency is affected thereby, with the written consent of the Agency. Payments
shall be made pro rata among holders of Bonds entitled to receive the payment
being made. Any moneys remaining in the Bond Fund after all of the Outstanding
Bonds shall be deemed to have been paid and all other amounts required to have
been paid under this Trust Agreement shall have been paid, shall be applied as
provided in Section 6.1.
Section 7.6 Remedies Vested in Trustee. All rights of action (including the
right to file proofs of claim) under this Trust Agreement or under any of the
Bonds may be enforced by the Trustee without the possession of any of the
Bonds or the production thereof in any trial or other proceeding relating
thereto; and any such suit or proceeding instituted by the Trustee shall be
brought in its name, as Trustee, without the necessity of joining as
plaintiffs or defendants any holders of the Bonds; and any recovery of
judgment shall be for the benefit of the holders of the Bonds subject,
however, to the provisions of this Trust Agreement.
Section 7.7 Rights and Remedies of Bondholders. No holder of a Bond shall have
any right to institute any suit, action or proceeding for the enforcement of
this Trust Agreement or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless an event of
default has occurred and is continuing of or in connection with which the
Trustee has been directed pursuant to Section 7.4 or notified as provided in
subsection 8.1.4, or of which by said subsection 8.1.4 it is deemed to have
notice, and the holders of at least 33% in aggregate principal amount of
Outstanding Bonds shall have made written request to the Trustee and shall
have afforded the Trustee reasonable opportunity to proceed to exercise the
powers herein before granted or to institute such action, suit or proceeding
in its own name, and have offered to the Trustee indemnity as provided in
Section 8.2 of the Loan Agreement, and the Trustee shall thereafter fail or
refuse to exercise the powers herein before granted or to institute such
action, suit or proceeding in its own name; and such notification or
direction, request and offer of indemnity are hereby declared in every case at
the option of the Trustee to the conditions precedent to the execution of the
powers and trusts of this Trust Agreement, and to any action or cause of
action for the enforcement of this Trust Agreement, or for the appointment of
a receiver or for any other remedy hereunder; it being understood and intended
that no one or more holders of the Bonds shall have any right in any manner
whatsoever to affect, disturb or prejudice the lien of this Trust Agreement by
its or their action or to enforce any right hereunder except in the manner
herein provided and that proceedings shall be instituted and maintained in the
manner herein provided and for the benefit of the holders of all Outstanding
Bonds. If the holder of a Bond shall act pursuant to the preceding sentence,
such holder shall have and may exercise with respect to such action all of the
powers, rights and remedies and be subject to all of the obligations of the
Trustee hereunder. Subject to the foregoing, each holder of a Bond shall have
a right of action to enforce the payment of the principal of and interest on
any Bond held by it at and after the maturity thereof at the place, from the
sources and in the manner in said Bond expressed.
Section 7.8 Waivers of Events of Default. At any time the Trustee shall waive
any event of default hereunder and under the Loan Agreement and their
consequences and rescind any declaration of maturity of principal resulting
therefrom upon the written request of the holders of (1) at least a majority
in aggregate principal amount of all the Bonds then Outstanding in respect of
which an event of default in the payment of principal, premium, if any, or
interest on the Bonds exists, or (2) at least a majority in aggregate
principal amount of all Bonds then Outstanding in case of any other event of
default; provided, however, that there shall not be waived any event of
default described in paragraph (1) of Section 7.1 of the Loan Agreement
or any such declaration in connection therewith rescinded, unless at the time
of such waiver or rescission payments of the amounts provided in Section 7.2
hereof for waiver and automatic rescission in connection with acceleration of
maturity have been made or provided for. In case of any such waiver or
rescission, or in case any proceeding taken by the Trustee on account of any
such event of default shall have been discontinued or abandoned or determined
adversely, then and in every such case the Agency, the Trustee and the
Bondholders shall be restored to their former positions and rights hereunder
respectively; but no such waiver or rescission shall extend to any
subsequent or other event of default, or impair any right consequent thereon.
ARTICLE VIII
THE TRUSTEE
Section 8.1 Acceptance of the Trusts. The Trustee hereby accepts the Trust
Estate and the trusts imposed upon it by this Trust Agreement and agrees to
perform said trusts and any duties required to be performed by it under the
terms of this Trust Agreement but only upon and subject to the terms and
conditions contained herein and in Section 8.2 of the Loan Agreement:
8.1.1 Except during the continuance of an event of default described in
Section 7.1, the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Trust Agreement and the Loan
Agreement, and no implied covenants or obligations shall be read into this
Trust Agreement. In case such an event of default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Trust Agreement, and use the same degree of care and skill in their
exercise, as an ordinarily prudent trustee under a corporate mortgage would
use and exercise.
8.1.2 The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees but shall be answerable for the conduct of the same in accordance
with the standards specified in subsection 8.1.1 except that with respect to
attorneys, agents or receivers it shall be answerable only for lack of due
care in appointing the same, and shall be entitled to advice of counsel
concerning all matters of trust hereof and the duties hereunder, and may in
all cases pay, and be reimbursed for, such reasonable compensation to all such
attorneys, agents, receivers, employees and counsel as may reasonably be
employed in connection with the trusts hereof.
8.1.3 Any action taken by the Trustee pursuant to this Trust Agreement
upon the request or authority or consent of any person who at the time of
making such request or giving such authority or consent is the holder of any
Bond shall be conclusive and binding upon all future holders of the same Bond
and upon Bonds issued in exchange there for or in place thereof.
8.1.4 The Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder, except events of default described in
clause (1) of Section 7.1, unless the Trustee shall be specifically notified
by writing delivered to it of such default by the Agency or by the holders of
at least 33 % in aggregate principal amount of the Outstanding Bonds and in
the absence of such notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
8.1.5 The Trustee shall not be required to give any bond or surety.
8.1.6 Except as otherwise expressly provided herein or therein, whenever
the consent of the Trustee is required to give effect to any amendment,
supplement, modification, cancellation or termination of any of this Trust
Agreement, the Loan Agreement or any payment of the Bonds, and whenever the
consent, waiver or approval of or determination or acknowledgement of
satisfaction by the Trustee is necessary with respect to any action to be
taken under any thereof, the Trustee shall consent to such amendment,
supplement, modification, cancellation or termination, or give or make such
consent, waiver, approval, determination or acknowledgement of satisfaction,
with (but only with) the prior written consent of the holders of not less than
a majority in aggregate principal amount of the Outstanding Bonds.
Section 8.2 Fees. Charges and Expenses of Trustee and Paving Agents. The
Trustee and any Paying Agent shall be entitled to payment or reimbursement for
reasonable fees, charges and expenses for its services as trustee, bond
registrar and/or paying agent rendered hereunder and for all advances, costs,
counsel fees and other expenses and liabilities reasonably made or incurred by
the Trustee or any Paying Agent in connection with such services or in
satisfaction of any obligations of the Agency or of the Company satisfied by
the Trustee or any Paying Agent as provided herein and for interest as
provided in Section 8.2 of the Loan Agreement. Such payment and reimbursement
shall be made from the Additional Payments by the Company pursuant to the Loan
Agreement or, if not made therefrom, from any moneys received or held by the
Trustee or any Paying Agent hereunder.
Section 8.3 Notice to Bondholders if Default or Event of Default Occurs.
If a default occurs of which the Trustee is by subsection 8.1.4 required to
take notice or if notice of default be given as in subsection 8.1.4 provided,
the Trustee shall, within five (5) business days after notice of such default
or knowledge of such event of default, give written notice thereof by
registered or certified mail to the Agency, the Company and the holders of all
Outstanding Bonds.
Section 8.4 Successor Trustee. Any corporation or association into which
the Trustee may be converted or merged, or with which it may be consolidated,
or to which it may sell or transfer its corporate trust business and assets
as a whole or substantially as a whole, and any corporation or association
resulting from any such conversion, sale, merger, consolidation or transfer to
which it is a party, ipso facto, shall be and become successor Trustee
hereunder and vested with all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without the execution
or filing of any instrument or any further act on the part of the parties
hereto other than as may be required by applicable law to record any
succession in title or interest, anything herein to the contrary
notwithstanding, provided, however, that any such successor Trustee shall be
a trust company or bank in good standing having trust powers and located in
The Commonwealth of Massachusetts.
Section 8.5 Resignation of Trustee: Removal. The Trustee may at any time
resign from the trusts hereby created by giving one hundred twenty (120) days'
written notice to the Agency and the Company and by registered or certified
mail to holders of all Outstanding Bonds, but such resignation shall not take
effect until the appointment of a successor Trustee and acceptance by the
successor Trustee of such trusts. If no successor Trustee has been appointed
and accepted the trusts hereby created within 180 days after the date of the
Trustee's resignation, the Trustee may petition a court of competent
jurisdiction for appointment of a successor Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Agency and signed by the holders of a
majority in aggregate principal amount of the Outstanding Bonds; or by any
court of competent jurisdiction for a breach of trust upon application by
the holders of not less than 33% in aggregate principal amount of the
Outstanding Bonds.
Section 8.6 Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or otherwise become
incapable of acting hereunder, a successor shall be appointed by the Agency at
the direction of the Company. At any time within one year after any such
vacancy shall have occurred, the holders of a majority in aggregate principal
amount of the Outstanding Bonds may appoint a successor Trustee by an
instrument or concurrent instruments in writing signed by or on behalf of
such holders, which appointment shall supersede any Trustee heretofore
appointed by the Agency. Every such successor Trustee appointed pursuant to
the provisions of this Section shall be a trust company or bank in good
standing having trust powers, located in The Commonwealth of Massachusetts,
having a reported capital and surplus of not less than $50,000,000. Any such
successor Trustee shall notify the Company and the Agency and by registered or
certified mail the holders of the Bonds of its acceptance of the appointment
and, upon giving such notice, shall become Trustee, vested with all the
property, rights and powers of the Trustee hereunder, without any further act
or conveyance. Any predecessor Trustee shall from time to time execute,
deliver and record and file such instruments as the Trustee may reasonably
require to confirm or perfect any succession hereunder.
Section 8.7 Dealing in Bonds. The Trustee and any Paying Agent and any of
their respective directors, officers, employees or agents may become the
owners of any or all of the Bonds secured hereby.
Section 8.8 List of Bondholders. The Trustee is hereby designated as bond
registrar for the Bonds and, as such, will keep on file a list of names and
addresses of the holders of all Bonds. The Trustee shall be under no
responsibility with regard to the accuracy of such list, including without
limitation the address of any holder of a Bond. At reasonable times and under
reasonable regulations established by the Trustee, such list may be inspected
and copied by the Company, by the Agency or by holders (or a designated
representative thereof) of 33% or more in principal amount of the Outstanding
Bonds, the ownership of any holder and the authority of any such designated
representative to be evidenced to the satisfaction of the Trustee.
Section 8.9 Designation and Succession of Paving Agents. The Trustee and
any other banks or trust companies designated as Paying Agents in any
supplemental agreement shall be the Paying Agent or Paying Agents for the
Bonds.
Any bank or trust company with or into which any Paying Agent other than
the Trustee may be merged or consolidated, or to which the corporate trust
assets and business of such Paying Agent may be sold, shall be deemed the
successor of such Paying Agent for the purposes of this Trust Agreement. If
the position of such Paying Agent shall become vacant for any reason, the
Trustee shall, within 30 days thereafter, appoint a bank or trust company
located in the same city as such Paying Agent to fill such vacancy.
The Paying Agents shall enjoy the same protective provisions in the
performance of their duties hereunder as are specified in Section 8.1 with
respect to the Trustee, insofar as such provisions may be applicable.
ARTICLE IX
SUPPLEMENTAL AGREEMENTS; AND AMENDMENTS TO LOAN AGREEMENT
Section 9.1 Supplemental Agreements Not Requiring Consent of Bondholders.
The parties hereto may without the consent of, or notice to, any of the
holders of the Bonds, enter into agreements supplemental to this Trust
Agreement and financing statements or other instruments evidencing the
existence of a lien for any one or more of the following purposes, provided
that no such supplemental agreement shall be inconsistent with the terms
and provisions hereof:
(1) To cure any ambiguity, inconsistency or formal defect or omission in
this Trust Agreement;
(2) To grant to or confer upon the Trustee for the benefit of the holders
of the Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the holders of the Bonds or the
Trustee;
(3) To subject to the lien and pledge of the Trust Agreement additional
revenues, properties or collateral;
(4) To add to the covenants and agreements of the Agency contained in
the Trust Agreement other covenants and agreements thereafter to be observed
for the protection of the holders of the Bonds or to surrender or limit any
right, power, or authority reserved to or conferred upon the Agency or the
Company in this Trust Agreement; and
(5) To evidence any succession to the Agency or to the Company, not
constituting a default, and the assumption by such successor of the covenants
and agreements of the Agency or of the Company, as the case may be, contained
in the Trust Agreement, the Loan Agreement and the Bonds.
Section 9.2 Supplemental Agreements Requiring Consent of Bondholders. etc.
In addition to supplemental agreements permitted by Section 9.1, the holders
of not less than a majority in aggregate principal amount of the Bonds then
Outstanding shall have the right, from time to time, to consent to and
approve, the execution by the parties hereto of such other agreement or
agreements supplemental hereto for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the terms or
provisions contained in this Trust Agreement or in any supplemental agreement;
except, however, that nothing in this Section contained shall permit (a) an
extension of the stated maturity of the principal of or the interest on any
Bond without the consent of the holder of such Bond; (b) a reduction in the
principal amount of any Bond, the rate of interest thereon or the premium to
be paid upon the redemption thereof prior to maturity without the consent of
the holder of such Bond; (c) the establishment of a privilege or priority of
any Bond or Bonds over any other Bond or Bonds without the consent of the
holders of all Bonds at the time outstanding; (d) a reduction in the aggregate
principal amount of Bonds the holders of which are required to consent to any
such supplemental agreement without the consent of the holders of all the
Bonds at the time outstanding which would be affected by the action to be
taken; or (e) a modification of the rights, duties or immunities of the Agency
or the Trustee without the written consent of the affected party.
If at any time the Company shall request the Agency and the Trustee to
enter into any supplemental agreement pursuant to this Section, the Trustee
shall, upon being satisfactorily indemnified with respect to expenses, cause
notice of the proposed execution of each supplemental agreement to be mailed
in the manner requested by the Company and, in any event, in the same manner
as prescribed in Section 3.2. Such notice shall briefly set forth the nature
of the proposed supplemental agreement and shall state that copies thereof are
on file at the corporate trust office of the Trustee for inspection by all
Bondholders. Except as otherwise provided in this Section 9.2, if, within
sixty days or such longer period (not to exceed two years) as shall be
prescribed by the Agency following the mailing of such notice, the holders of
not less than a majority in aggregate principal amount of the Bonds
Outstanding at the time of the execution of any such supplemental agreement
shall have consented to and approved the execution thereof, no holder of any
Bond shall have any right to object to any of the terms and provisions
contained therein, or the operation thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin or restrain the Trustee or
the Agency from executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such supplemental agreement as
in this Section permitted and provided, this Trust Agreement shall be and be
deemed to be modified and amended in accordance therewith.
Section 9.3 Amendments. etc.. to Loan Agreement. The Agency and the
Trustee may, without the consent of or notice to the Bondholders, consent to
any amendment, change or modification of the Loan Agreement, as may be
required (i) by the provisions of the Loan Agreement or this Trust Agreement,
(ii) to cure any ambiguity, inconsistency, formal defect or omission, or (iii)
to effect any other change therein which, in the judgment of the Trustee, is
not to the prejudice of the Trustee or the holders of the Bonds or to the
Agency.
Neither the Agency nor the Trustee shall consent to any other amendment,
change or modification of the Loan Agreement without notice to the Bondholders
as provided in Section 9.2 hereof and the consent of the holders of not less
than a majority in aggregate principal amount of the Bonds then Outstanding.
Section 9.4 Consent of Company. Anything herein to the contrary
notwithstanding, a supplemental agreement under this Article which affects any
rights or obligations of the Company under the Loan Agreement, or requires a
revision of the Loan Agreement shall not become effective unless and until the
Company shall have consented in writing to the execution and delivery of such
supplemental agreement, and a supplemental agreement under this Article which
affects any rights or obligations of the Trustee shall not become effective
unless and until the Company shall have consented in writing to the execution
and delivery of such supplemental agreement. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any supplemental
agreement together with a copy of the proposed supplemental agreement to be
mailed as provided in Section 10.6 hereof to the Company at least ten days
before the date of its proposed execution and delivery in the case of a
supplemental agreement referred to in Section 9.1 hereof, and not later than
five days after the mailing of the notice of the proposed execution and
delivery in the case of a supplemental agreement provided for in Section 9.2
hereof
Section 9.5 Opinion of Counsel. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, the opinion of any counsel
approved by it, who may be counsel for the Company or the Agency, as
conclusive evidence that any such proposed supplemental agreement or amendment
hereto or to the Loan Agreement complies with the provisions of this Trust
Agreement and that it is proper for the Trustee, under the provisions
of this Article, to join in the execution of such supplemental agreement.
Section 9.6 Modif;cation by Unanimous Consent. Notwithstanding anything
contained elsewhere in this Trust Agreement, the rights and obligations of the
Agency and of the holders of the Bonds and the terms and provisions of the
Bonds and this Trust Agreement or any supplemental agreement and the Loan
Agreement, may be modified or altered in any respect with the consent of the
Agency, the Trustee and the holders of all of the Bonds then outstanding and,
if any rights or obligations of the Company, the Agency or the Trustee under
the Loan Agreement are affected thereby, with the consent of the affected
party.
ARTICLE X
MISCELLANEOUS
Section 10.1 Instruments of Further Assurance: Recording and Filing. The
Agency shall from time to time execute and deliver or cause to be executed and
delivered to the Trustee all instruments and documents and take or cause to be
taken all such other and further action as the Trustee may reasonably require
in order to effect and confirm and vest more securely in the Trustee all
security for the payment of all amounts coming due with respect to the Bonds
and all rights contemplated by this Trust Agreement. The Agency shall not,
except as otherwise provided herein or in the Loan Agreement, mortgage,
encumber or alienate any part of the Pledged Receipts or its rights under and
pursuant to the Loan Agreement.
The Trustee shall on behalf of the holders from time to time of the Bonds
cause to be filed any continuation statements or instruments of a similar
character which are required by law in order to fully preserve and protect the
security of such holders.
The undertakings of the Agency contained in this Section 10.1 are subject
to the limitation prescribed in Section 5.2.
Section 10.2 Rights Under Loan Agreement. A duly executed counterpart of
the Loan Agreement has been filed with the Trustee, and reference is hereby
made to the same for a detailed statement of the covenants and obligations of
the Company and the rights of the Agency thereunder. The Trustee may enforce
all rights of the Agency (except those not assigned hereunder) and all
obligations of the Company under the Loan Agreement for and on behalf of the
holders of the Bonds, whether or not the Agency is in default hereunder.
Section 10.3 Consents. etc.. of Bondholders. Any consent, request,
direction, approval, objection or other instrument required by this Trust
Agreement to be signed and executed by holders of Bonds may be in any number
of concurrent writings of similar tenor, and may be signed or executed by such
holders in person or by agent appointed in writing.
Section 10.9 Captions: Table of Contents. The captions or headings in, and
the table of contents for, this Trust Agreement are for convenience only and
in no way define, limit or describe the scope or content of any provision of
this Trust Agreement. A reference to any Section or subsection shall be a
reference to all provisions prior to the next comparable number. Section
10.10 Counterparts. This Trust Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 10.11 Governing Law. This Trust Agreement shall be governed by the
law of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Agency has caused this Trust Agreement to be
executed and delivered in its name and behalf by its Executive Director, its
Deputy Director or its Vice Chairman; and to evidence its acceptance of the
trusts hereby created the Trustee has caused this Trust Agreement to be signed
in its name and behalf by its authorized officer, all as of the 1st day of
July, 1993, but actually on the date indicated below opposite the signature
of each party.
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY Dated: July 22, 1993
By
Executive/Deputy Diretor/Vice Chairman
SHAWMUT BANK, N.A.,
as Trustee Dated: July 22, 1993
By Authorized Officer
EXHIBIT 2.1 FORM OF DTC REPRESENTATION LETTER
Letter of Representations
[To be Completed by Issuer and Agent]
MASSACHUSETTS INDUSTRIAL FINANCE AGENCY
[Name of Issuer]
SHAWMUT BANK N. A.
[Name of Agent]
July 22, 1993 (Date)
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: Massachusetts Industrial Finance Agency $40,000,000 Pollution Control
Revenue Refunding Bonds
1993 Series (Eastern Edison Company Project)
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Bonds"). Agent will act as
trustee, paying agent, fiscal agent, or other agent of Issuer with respect to
the Bonds. The Bonds will be issued pursuant to a trust indenture, bond
reso]ution, or other such document authorizing the issuance of the Bonds dated
July 1, 1993 (the "Document"). Goldman Sachs & Co. and Citicorp,
("Underwriter") Securities Markets, Inc., is distributing the Bonds through
The Depository Trust Company ("DTC").
To induce DTC to accept the Bonds as eligible for deposit at DTC, and to act
in accordance with its Rules with respect to the Bonds, Issuer and Agent, if
any, make the following representations to DTC:
1. Prior to closing on tile Bonds on July 22, l993, there shall be
deposited with DTC one Bond certificate registered in tile name of DTCs
nominee, Cede & Co.. for each stated maturity of the Bonds in the face amounts
set forth on Schedule A hereto, the total of which represents 100% of the
principal amount of such Bonds. If, however, the aggregate principal
amount of Amy maturity exceeds $150 million, one certificate will be issued
with respect to each $150 million of principal amount and an additional
certificate will be issued with respect to any remaining principal amount.
Each $150 million Bond certificate shall bear the folio ing legend:
Unless this certificate is presented by an author.The representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
2. In the event of any solicitation of consents from or voting by holders
of the Bonds, Issuer or Agent shall establish a record date for such purposes
(with no provision for revocation of consents or votes by subsequent holders)
and shall, to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date.
3. In the event of a full or partial redemption or an advance refunding
of part of the outstanding Bonds, Issuer or Agent shall send a notice to DTC
specifying: (a) the amount of the redemption or refunding (b) in the case of a
refunding, the maturity date(s) established under the refunding; and (c) the
date such notice is to be mailed to beneficial owners or published (the
"Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in
a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before the Publication
Date. Issuer or Agent shall forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission for multiple
CUSIP numbers (if applicable) which includes a manifest or list of each CUSIP
submitted in that transmission. (The party sending such notice shall have a
method to verify subsequently the use of such means and the timeliness of such
notice.) The Publication Date shall be not less than 30 days nor more than 60
days prior to the redemption date or, in the case of an advance refunding the
date that the proceeds are deposited in escrow.
4. In the event of an invitation to tender the Bonds, notice by Issuer or
Agent to Bondholders specifying the terms of the tender and the Publication
Date of such notice shall be sent to DTC by a secure means in the manner set
forth in the preceding Paragraph.
5. All notices and payment ad vices sent to DTC shall contain the CUSIP
number of the Bonds.
6. Notices to DTC pursuant to Paragraph 2 by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-6896 or (212) 709-6897, and
receipt of such notices shall be confirmed by telephoning (212) 709-6870.
Notices to DTC pursuant to Paragraph 2 by mail or by any other means shall be
sent to:
Supervisor; Proxy
Reorganization Department
The Depository Trust Company
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
7. Notices to DTC pursuant to Paragraph 3 by telecopy shall be sent to
DTCs Call Notification Department at (516) 227-4164 or (516) 227-4190. If the
party, sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone
(516) 227-4070. Notices to DTC pursuant to Paragraph 3 by mail or by any
other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City,NY 11530-4719
8. Notices to DTC pursuant to Paragraph 4 and notices of other actions
(including mandatory tenders, exchanges, and capital changes) by telecopy
shall be sent to DTC's Reorganization Department at (212) 709-1093 or (212)
709-1094, and receipt of such notices shall be confirmed by telephoning (212)
709-6884. Notices to DTC pursuant to the above by mail or by any other means
shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
9. Transactions in the Bonds shall be eligible for next-day funds
settlement in DTC's Next-Day Funds Settlement ("NDFS") system.
A. Interest payments shall be received by Cede & Co., as nominee of DTC,
or its registered assigns in next-day funds on each payment date (or
the equivalent in accordance with existing arrangements between Issuer
or Agent and DTC). Such payments shall be made payable to the order of
Cede & Co. Absent any other existing arrangements such payments shall
be addressed as follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
7 Hanover Square; 24th Floor
New York NY 10004-2695
B. Principal payments shall be received by Cede & Co., as nominee of DTC
or its registered assigns in next-day funds on each payment date (or
the equivalent in accordance with existing arrangements between Issuer
or Agent and DTC). Such pa,yments shall be made payable to the order
of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
55 Water Street; 50th Floor
New York NY 10041-0099
10. DTC may direct Issuer or Agent to use any other telephone number or
address as the number or address to which notices or payments of interest or
principal may be sent.
11. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount
of Bonds outstanding or an advance refunding of part of the Bonds outstanding,
DTC, in its discretion: (a) may request Issuer or Agent to issue and
authenticate a new Bond certificate, or (b) may make an appropriate notation
on the Bond certificate indicating the date and amount of such reduction in
principal except in the case of final maturity, in Which case the certificate
will be presented to Issuer or Agent prior to payment if required
12. In the event that Issuer determines that beneficial owners of Bonds
shall be able to obtain certificdted Bonds, Issuer or Agent shall notify DTC
of the availability of Bond certificates. In such event, Issuer or Agent shall
issue, transfer, and exchange Bond certificates in appropriate amounts, as
required by DTC and others.
13. DTC may discontinue providing its services as securities depository
with respect to the Bonds at any time by giving reasonable notice to Issuer or
Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Bonds outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Bonds to
any DTC Participant having Bonds credited to its DTC accounts.
14. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
Notes:
A. If there is an Agent (as defined in this Letter of Representations),
Agent as well as Issuer must sign this Letter. If there is no Agent,
in signing this letter Issuer itself undertakes to perform all of the
obligations set forth herein.
B. Under Rules of the Municipal Securities Rulemaking Board relating to
"good delivery", a municipal securities dealer must be able to
determine the date that a notice of a partial call or of an advance
refunding of a part of an issue is published (the "publication date").
The establishment of such a publication date is addressed in Paragraph
3 of the Letter.
C. Schedule B contains statements that DTC believes accurately describe
DTC, the method of effecting book-entry transfers of securities
distributed through DTC, and certain related matters.
Very truly yours,
Massachusetts Industrial Finance Agency (Issuer)
by: Authorized Officer's Signature
Shawmut Bank, N.A. (Agent)
by: Authorized Officer's Signature
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
by: Authorized Officer
cc: Underwriter Goldman Sachs & Co and Citibank Securities Markets, Inc.
Underwriter's Counsel Ropes & Gray
SCHEDULE A
(Describe Issue)
CUSIP Principal Amount Maturity Date Interest Rate
575856bdo $40,000,000 July 1, 1998 5 7/8%
SCHEDULE B
SAMPLE OFFICIAL STATEMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC~), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee). One fully-registered Security
certificate will be issued for [each issue of] the Securities, [each] in the
aggregate principal amount of such issue, and will be deposited with DTC.
[If, however, the aggregate principal amount of [any] issue exceeds $150
million, one certificate will be issued with respect to each $150 million of
principal amount and an additional certificate will be issued with respect to
any remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organizations" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporations"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants
"Participants" deposit with DTC. DTC also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly w indirectly "Indirect Participants").
The Rules applicable to DTC and its Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owners") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmation's providing details of the transaction, as well as
periodic statements of their holdings, from the Direct or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Securities are to be accomplished by entries made
on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registration In the name of DTC's partnership
nominee, Cede & Co. The deposit of Securities with DTC and their registration
in the name of Cede & Co. effect no change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts such
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
[6. Redemption notices shall be sent to Cede & Co. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to the
Issuer as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to DTC.
DTC's practice is to credit Direct Participants accounts on payable date in
accordance with their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive payment on payable date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name" and
will be the responsibility of such Participant and not of DTC, the Agent, or
the Issuer, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal and interest to DTC's the
responsibility of the Issuer or the Agent, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners shall be the responsibility of Direct
and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to the [Tender/Remarketing]
Agent, and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to the [Tender/Remarketing] Agent. The requirement for physical
delivery of Securities in connection with a demand for purchase or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records.]
10.DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to the
Issuer or the Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to
be printed and delivered.
11. The Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Issuer believes to be reliable,
but the Issuer takes no responsibility for the accuracy thereof.