WELPP 8-K
Wisconsin Electric Power Co (WELPP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event
reported):
| Commission File Number |
Registrant; State of Incorporation; Address; and Telephone Number |
IRS Employer Identification No. | ||
| (A |
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| ( |
| (A |
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| c/o Wisconsin Electric Power Company | ||||
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
ITEM 8.01 OTHER EVENTS.
On May 12, 2021, WEPCo Environmental Trust Finance I, LLC (the “Issuing Entity”) issued $118,814,000 aggregate principal amount of Environmental Trust Bonds, Series 2021 (the “ETBs”), pursuant to an Indenture and Series Supplement, each dated May 12, 2021. The ETBs were offered pursuant to a prospectus dated May 4, 2021. In connection with the issuance of the ETBs, Wisconsin Electric Power Company and the Issuing Entity entered into the other agreements listed below in Item 9.01, which are attached hereto as exhibits and incorporated by reference herein.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| WISCONSIN ELECTRIC POWER COMPANY | |
| Date: May 12, 2021 | /s/ William J. Guc |
| William J. Guc, Vice President, Controller and Assistant Corporate Secretary | |
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC | |
| Date: May 12, 2021 | / s/ William J. Guc |
| William J. Guc, Vice President, Controller and Assistant Secretary |
Exhibit 4.1
INDENTURE
by and between
WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC,
Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
Indenture Trustee and Securities Intermediary
Dated as of May 12, 2021
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION; INCORPORATION BY REFERENCE | 2 |
| Section 1.01. Definitions and Rules of Construction | 2 |
| Section 1.02. Incorporation by Reference of Trust Indenture Act | 2 |
| ARTICLE II THE ENVIRONMENTAL TRUST BONDS | 2 |
| Section 2.01. Form | 2 |
| Section 2.02. Denominations: Environmental Trust Bonds Issuable in Series | 3 |
| Section 2.03. Execution, Authentication and Delivery | 4 |
| Section 2.04. Temporary Environmental Trust Bonds | 4 |
| Section 2.05. Registration; Registration of Transfer and Exchange of Environmental Trust Bonds | 5 |
| Section 2.06. Mutilated, Destroyed, Lost or Stolen Environmental Trust Bonds | 6 |
| Section 2.07. Persons Deemed Owner | 7 |
| Section 2.08. Payment of Principal, Premium, if any, and Interest; Interest on Overdue Principal; Principal, Premium, if any, and Interest Rights Preserved | 8 |
| Section 2.09. Cancellation | 9 |
| Section 2.10. Outstanding Amount; Authentication and Delivery of Environmental Trust Bonds | 9 |
| Section 2.11. Book-Entry Environmental Trust Bonds | 12 |
| Section 2.12. Notices to Clearing Agency | 13 |
| Section 2.13. Definitive Environmental Trust Bonds | 13 |
| Section 2.14. CUSIP Number | 14 |
| Section 2.15. Letter of Representations | 14 |
| Section 2.16. Tax Treatment | 14 |
| Section 2.17. State Pledge | 14 |
| Section 2.18. Security Interests | 15 |
| ARTICLE III COVENANTS | 16 |
| Section 3.01. Payment of Principal, Premium, if any, and Interest | 16 |
| Section 3.02. Maintenance of Office or Agency | 17 |
| Section 3.03. Money for Payments To Be Held in Trust | 17 |
| Section 3.04. Existence | 18 |
| Section 3.05. Protection of Environmental Trust Bond Collateral | 18 |
| Section 3.06. Opinions as to Environmental Trust Bond Collateral | 19 |
| Section 3.07. Performance of Obligations; Servicing; SEC Filings | 20 |
| Section 3.08. Certain Negative Covenants | 22 |
| Section 3.09. Annual Statement as to Compliance | 23 |
| Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms | 24 |
| Section 3.11. Successor or Transferee | 26 |
| Section 3.12. No Other Business | 26 |
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TABLE OF CONTENTS
(continued)
Page
| Section 3.13. No Borrowing | 26 |
| Section 3.14. Servicer’s Obligations | 26 |
| Section 3.15. Guarantees, Loans, Advances and Other Liabilities | 27 |
| Section 3.16. Capital Expenditures | 27 |
| Section 3.17. Restricted Payments | 27 |
| Section 3.18. Notice of Events of Default | 27 |
| Section 3.19. Further Instruments and Acts | 27 |
| Section 3.20. Inspection | 27 |
| Section 3.21. Sale Agreement, Servicing Agreement and Administration Agreement Covenants | 28 |
| Section 3.22. Taxes | 30 |
| Section 3.23. Notices from Holders | 30 |
| Section 3.24. Volcker Rule | 30 |
| ARTICLE IV SATISFACTION AND DISCHARGE; DEFEASANCE | 31 |
| Section 4.01. Satisfaction and Discharge of Indenture; Defeasance | 31 |
| Section 4.02. Conditions to Defeasance | 32 |
| Section 4.03. Application of Trust Money | 34 |
| Section 4.04. Repayment of Moneys Held by Paying Agent | 34 |
| ARTICLE V REMEDIES | 34 |
| Section 5.01. Events of Default | 34 |
| Section 5.02. Acceleration of Maturity; Rescission and Annulment | 36 |
| Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee | 37 |
| Section 5.04. Remedies; Priorities | 38 |
| Section 5.05. Optional Preservation of the Collateral | 40 |
| Section 5.06. Limitation of Suits | 40 |
| Section 5.07. Unconditional Rights of Holders To Receive Principal, Premium, if any, and Interest | 41 |
| Section 5.08. Restoration of Rights and Remedies | 41 |
| Section 5.09. Rights and Remedies Cumulative | 41 |
| Section 5.10. Delay or Omission Not a Waiver | 41 |
| Section 5.11. Control by Holders | 42 |
| Section 5.12. Waiver of Past Defaults | 42 |
| Section 5.13. Undertaking for Costs | 43 |
| Section 5.14. Waiver of Stay or Extension Laws | 43 |
| Section 5.15. Action on Environmental Trust Bonds | 43 |
| ARTICLE VI THE INDENTURE TRUSTEE | 43 |
| Section 6.01. Duties of Indenture Trustee | 43 |
| Section 6.02. Rights of Indenture Trustee | 46 |
| Section 6.03. Individual Rights of Indenture Trustee | 47 |
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TABLE OF CONTENTS
(continued)
Page
| Section 6.04. Indenture Trustee’s Disclaimer | 47 |
| Section 6.05. Notice of Defaults | 47 |
| Section 6.06. Reports by Indenture Trustee to Holders | 48 |
| Section 6.07. Compensation and Indemnity | 49 |
| Section 6.08. Replacement of Indenture Trustee and Securities Intermediary | 50 |
| Section 6.09. Successor Indenture Trustee by Merger | 52 |
| Section 6.10. Appointment of Co-Trustee or Separate Trustee | 52 |
| Section 6.11. Eligibility; Disqualification | 53 |
| Section 6.12. Preferential Collection of Claims Against Issuer | 53 |
| Section 6.13. Representations and Warranties of Indenture Trustee | 54 |
| Section 6.14. Annual Report by Independent Registered Public Accountants | 54 |
| Section 6.15. Custody of Environmental Trust Bond Collateral | 54 |
| ARTICLE VII HOLDERS’ LISTS AND REPORTS | 55 |
| Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of Holders | 55 |
| Section 7.02. Preservation of Information; Communications to Holders | 55 |
| Section 7.03. Reports by Issuer | 56 |
| Section 7.04. Reports by Indenture Trustee | 56 |
| ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES | 57 |
| Section 8.01. Collection of Money | 57 |
| Section 8.02. Collection Account. | 57 |
| Section 8.03. General Provisions Regarding the Collection Account | 60 |
| Section 8.04. Release of Environmental Trust Bond Collateral | 61 |
| Section 8.05. Opinion of Counsel | 61 |
| Section 8.06. Reports by Independent Registered Public Accountants | 62 |
| ARTICLE IX SUPPLEMENTAL INDENTURES | 62 |
| Section 9.01. Supplemental Indentures Without Consent of Holders | 62 |
| Section 9.02. Supplemental Indentures with Consent of Holders | 64 |
| Section 9.03. Execution of Supplemental Indentures | 66 |
| Section 9.04. Effect of Supplemental Indenture | 66 |
| Section 9.05. Conformity with Trust Indenture Act | 66 |
| Section 9.06. Reference in Environmental Trust Bonds to Supplemental Indentures | 66 |
| ARTICLE X MISCELLANEOUS | 66 |
| Section 10.01. Compliance Certificates and Opinions, etc. | 66 |
| Section 10.02. Form of Documents Delivered to Indenture Trustee | 68 |
| Section 10.03. Acts of Holders | 69 |
| Section 10.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies | 69 |
| Section 10.05. Notices to Holders; Waiver | 70 |
| Section 10.06. Rule 17g-5 Compliance | 71 |
iii
TABLE OF CONTENTS
(continued)
Page
| Section 10.07. Conflict with Trust Indenture Act | 71 |
| Section 10.08. Effect of Headings and Table of Contents | 71 |
| Section 10.09. Successors and Assigns | 71 |
| Section 10.10. Severability | 71 |
| Section 10.11. Benefits of Indenture | 71 |
| Section 10.12. Legal Holidays | 71 |
| Section 10.13. GOVERNING LAW | 72 |
| Section 10.14. Counterparts | 72 |
| Section 10.15. Recording of Indenture | 72 |
| Section 10.16. No Recourse to Issuer | 72 |
| Section 10.17. Basic Documents | 73 |
| Section 10.18. No Petition | 73 |
| Section 10.19. Securities Intermediary | 73 |
EXHIBITS
| Exhibit A | Form of Environmental Trust Bonds |
| Exhibit B | Form of Series Supplement |
| Exhibit C | Servicing Criteria to be Addressed by Indenture Trustee in Assessment of Compliance |
| Exhibit D | Form of Intercreditor Agreement |
APPENDIX
| Appendix A | Definitions and Rules of Construction |
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TRUST INDENTURE ACT CROSS REFERENCE TABLE
| TRUST INDENTURE ACT SECTION |
INDENTURE SECTION | |||
| 310 | (a)(1) | 6.11 | ||
| (a)(2) | 6.11 | |||
| (a)(3) | 6.10(b)(i) | |||
| (a)(4) | Not applicable | |||
| (a)(5) | 6.11 | |||
| (b) | 6.11 | |||
| 311 | (a) | 6.12 | ||
| (b) | 6.12 | |||
| 312 | (a) | 7.01 and 7.02 | ||
| (b) | 7.02(b) | |||
| (c) | 7.02(c) | |||
| 313 | (a) | 7.04 | ||
| (b)(1) | 7.04 | |||
| (b)(2) | 7.04 | |||
| (c) | 7.03(a) and 7.04 | |||
| (d) | Not applicable | |||
| 314 | (a) | 3.09, 4.01 and 7.03(a) | ||
| (b) | 3.06 and 4.01 | |||
| (c)(1) | 2.10, 4.01, 8.04(b) and 10.01(a) | |||
| (c)(2) | 2.10, 4.01, 8.04(b) and 10.01(a) | |||
| (c)(3) | 2.10, 4.01, 4.02 and 10.01(a) | |||
| (d) | 2.10, 8.04(b) and 10.01 | |||
| (e) | 10.01(a) | |||
| (f) | 10.01(a) | |||
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| TRUST INDENTURE ACT SECTION |
INDENTURE SECTION | |||
| 315 | (a) | 6.01(b)(i) and 6.01(b)(ii) | ||
| (b) | 6.05 | |||
| (c) | 6.01(a) | |||
| (d) | 6.01(c)(i), 6.01(c)(ii) and 6.01(c)(iii) | |||
| (e) | 5.13 | |||
| 316 | (a) (last sentence) | Appendix A — definition of “Outstanding” | ||
| (a)(1)(A) | 5.11 | |||
| (a)(1)(B) | 5.12 | |||
| (a)(2) | Not applicable | |||
| (b) | 5.07 | |||
| (c) | Appendix A — definition of “Record Date” | |||
| 317 | (a)(1) | 5.03(a) | ||
| (a)(2) | 5.03(c)(iv) | |||
| (b) | 3.03 | |||
| 318 | (a) | 10.07 | ||
| (b) | 10.07 | |||
| (c) | 10.07 | |||
THIS CROSS REFERENCE TABLE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART OF THIS INDENTURE.
vi
This INDENTURE, dated as of May 12, 2021, is by and between WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, a Delaware limited liability company (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as indenture trustee (in such capacity, the “Indenture Trustee”) for the benefit of the Secured Parties (as defined herein) and in its separate capacity as a securities intermediary and account bank (in such capacities, the “Securities Intermediary”).
In consideration of the mutual agreements herein contained, each party hereto agrees as follows for the benefit of the other party hereto and each of the Holders:
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture and the creation and issuance of the Environmental Trust Bonds issuable hereunder, which will be of substantially the tenor set forth herein and in the Series Supplement.
The Environmental Trust Bonds shall be non-recourse obligations and shall be secured by and payable solely out of the proceeds of the Environmental Control Property and the other Environmental Trust Bond Collateral. If and to the extent that such proceeds of the Environmental Control Property and the other Environmental Trust Bond Collateral are insufficient to pay all amounts owing with respect to the Environmental Trust Bonds, then, except as otherwise expressly provided hereunder, the Holders shall have no Claim in respect of such insufficiency against the Issuer or the Indenture Trustee, and the Holders, by their acceptance of the Environmental Trust Bonds, waive any such Claim.
All things necessary to (a) make the Environmental Trust Bonds, when executed by the Issuer and authenticated and delivered by the Indenture Trustee hereunder and duly issued by the Issuer, valid obligations, and (b) make this Indenture a valid agreement of the Issuer, in each case, in accordance with their respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises herein contained and of the purchase of the Environmental Trust Bonds by the Holders and of other good and lawful consideration, the receipt and sufficiency of which are hereby acknowledged, and to secure, equally and ratably without prejudice, priority or distinction, except as specifically otherwise set forth in this Indenture, the payment of the Environmental Trust Bonds, the payment of all other amounts due under or in connection with this Indenture (including, without limitation, all fees, expenses, counsel fees and other amounts due and owing to the Indenture Trustee) and the performance and observance of all of the covenants and conditions contained herein or in the Environmental Trust Bonds, has hereby executed and delivered this Indenture and by these presents does hereby and under the Series Supplement will convey, grant, assign, transfer and pledge, in each case, in and unto the Indenture Trustee, its successors and assigns forever, for the benefit of the Secured Parties, all and singular the property described in the Series Supplement (such property hereinafter referred to as the “Environmental Trust Bond Collateral”). The Series Supplement will more particularly describe the obligations of the Issuer secured by the Environmental Trust Bond Collateral.
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AND IT IS HEREBY COVENANTED, DECLARED AND AGREED between the parties hereto that all Environmental Trust Bonds are to be issued, countersigned and delivered and that all of the Environmental Trust Bond Collateral is to be held and applied, subject to the further covenants, conditions, releases, uses and trusts hereinafter set forth, and the Issuer, for itself and any successor, does hereby covenant and agree to and with the Indenture Trustee and its successors in said trust, for the benefit of the Secured Parties, as follows:
ARTICLE
I
DEFINITIONS AND RULES OF CONSTRUCTION; INCORPORATION BY REFERENCE
Section 1.01. Definitions and Rules of Construction. Except as otherwise specified herein or as the context may otherwise require, the capitalized terms used herein shall have the respective meanings set forth in Appendix A attached hereto and made a part hereof for all purposes of this Indenture. Not all terms defined in Appendix A are used in this Indenture. The rules of construction set forth in Appendix A shall apply to this Indenture and are hereby incorporated by reference into this Indenture as if set forth fully in this Indenture.
Section 1.02. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, that provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Environmental Trust Bonds.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Indenture Trustee.
“obligor” on the indenture securities means the Issuer and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.
ARTICLE
II
THE ENVIRONMENTAL TRUST BONDS
Section 2.01. Form. The Environmental Trust Bonds and the Indenture Trustee’s certificate of authentication shall be in substantially the forms set forth in Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or by the Series Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing the Environmental Trust Bonds, as evidenced by their execution of the Environmental Trust Bonds. Any portion of the text of any Environmental Trust Bond may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Environmental Trust Bond.
2
The Environmental Trust Bonds shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing the Environmental Trust Bonds, as evidenced by their execution of the Environmental Trust Bonds.
Each Environmental Trust Bond shall be dated the date of its authentication. The terms of the Environmental Trust Bonds set forth in Exhibit A are part of the terms of this Indenture.
Section 2.02. Denominations: Environmental Trust Bonds Issuable in Series. The Environmental Trust Bonds shall be issuable in the Minimum Denomination specified in the Series Supplement and, except as otherwise provided in the Series Supplement, in integral multiples of $1,000 in excess thereof.
The Environmental Trust Bonds may, at the election of and as authorized by a Responsible Officer of the Issuer, be issued in one or more Tranches, and shall be designated generally as the “Environmental Trust Bonds, Series 2021” of the Issuer, with such further particular designations added or incorporated in such title for the Environmental Trust Bonds of any particular Tranche as a Responsible Officer of the Issuer may determine. Each Environmental Trust Bond shall bear upon its face the designation so selected for the Tranche to which it belongs. All Environmental Trust Bonds shall be identical in all respects except for the denominations thereof, the Holder thereof, the numbering thereon and the legends thereon, unless the Environmental Trust Bonds are comprised of one or more Tranches, in which case all of the Environmental Trust Bonds of the same Tranche shall be identical in all respects except for the denominations thereof, the Holder thereof, the numbering thereon, the legends thereon and the CUSIP number thereon. All Environmental Trust Bonds of a particular Tranche shall be in all respects equally and ratably entitled to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery, all in accordance with the terms and provisions of this Indenture.
The Environmental Trust Bonds shall be created by the Series Supplement authorized by a Responsible Officer of the Issuer, which shall specify and establish the terms and provisions thereof. The several Tranches thereof may differ as between Tranches, in respect of any of the following matters:
(a) designation of the Tranches thereof;
(b) the principal amount;
(c) the Environmental Trust Bond Interest Rate;
(d) the Payment Dates;
(e) the Scheduled Payment Dates;
3
(f) the Scheduled Final Payment Date;
(g) the Final Maturity Date;
(h) the place or places for the payment of interest, principal and premium, if any;
(i) the Minimum Denominations;
(j) the Expected Amortization Schedule;
(k) the provisions with respect to the definitions set forth in Appendix A hereto;
(l) whether or not the Environmental Trust Bonds are to be Book-Entry Environmental Trust Bonds and the extent to which Section 2.11 should apply; and
(m) any other provisions expressing or referring to the terms and conditions upon which the Environmental Trust Bonds of any Tranche are to be issued under this Indenture that are not in conflict with the provisions of this Indenture and as to which the Rating Agency Condition is satisfied.
Section 2.03. Execution, Authentication and Delivery. The Environmental Trust Bonds shall be executed on behalf of the Issuer by any of its Responsible Officers. The signature of any such Responsible Officer on the Environmental Trust Bonds may be manual or facsimile.
Environmental Trust Bonds bearing the manual or facsimile signature of individuals who were at the time of such execution Responsible Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of the Environmental Trust Bonds or did not hold such offices at the date of the Environmental Trust Bonds.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Environmental Trust Bonds executed by the Issuer to the Indenture Trustee pursuant to an Issuer Order for authentication; and the Indenture Trustee shall authenticate and deliver the Environmental Trust Bonds as in this Indenture provided and not otherwise.
No Environmental Trust Bond shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Environmental Trust Bond a certificate of authentication substantially in the form provided for therein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Environmental Trust Bond shall be conclusive evidence, and the only evidence, that such Environmental Trust Bond has been duly authenticated and delivered hereunder.
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Section 2.04. Temporary Environmental Trust Bonds. Pending the preparation of Definitive Environmental Trust Bonds pursuant to Section 2.13, the Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee shall authenticate and deliver, Temporary Environmental Trust Bonds which are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Environmental Trust Bonds in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing the Environmental Trust Bonds may determine, as evidenced by their execution of the Environmental Trust Bonds.
If Temporary Environmental Trust Bonds are issued, the Issuer will cause Definitive Environmental Trust Bonds to be prepared without unreasonable delay. After the preparation of Definitive Environmental Trust Bonds, the Temporary Environmental Trust Bonds shall be exchangeable for Definitive Environmental Trust Bonds upon surrender of the Temporary Environmental Trust Bonds at the office or agency of the Issuer to be maintained as provided in Section 3.02, without charge to the Holder. Upon surrender for cancellation of any one or more Temporary Environmental Trust Bonds, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Environmental Trust Bonds of minimum denominations. Until so delivered in exchange, the Temporary Environmental Trust Bonds shall in all respects be entitled to the same benefits under this Indenture as Definitive Environmental Trust Bonds.
Section 2.05. Registration; Registration of Transfer and Exchange of Environmental Trust Bonds. The Issuer shall cause to be kept a register (the “Environmental Trust Bond Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Environmental Trust Bonds and the registration of transfers of Environmental Trust Bonds. The Indenture Trustee shall be “Environmental Trust Bond Registrar” for the purpose of registering the Environmental Trust Bonds and transfers of Environmental Trust Bonds as herein provided. Upon any resignation of any Environmental Trust Bond Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Environmental Trust Bond Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as Environmental Trust Bond Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Environmental Trust Bond Registrar and of the location, and any change in the location, of the Environmental Trust Bond Register, and the Indenture Trustee shall have the right to inspect the Environmental Trust Bond Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely conclusively upon a certificate executed on behalf of the Environmental Trust Bond Registrar by a Responsible Officer thereof as to the names and addresses of the Holders and the principal amounts and number of the Environmental Trust Bonds (separately stated by Tranche).
Upon surrender for registration of transfer of any Environmental Trust Bond at the office or agency of the Issuer to be maintained as provided in Section 3.02, provided that the requirements of Section 8-401 of the UCC are met, the Issuer shall execute, and the Indenture Trustee shall authenticate and the Holder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Environmental Trust Bonds in any Minimum Denominations, of the same Tranche and aggregate principal amount.
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At the option of the Holder, Environmental Trust Bonds may be exchanged for other Environmental Trust Bonds in any Minimum Denominations, of the same Tranche and aggregate principal amount, upon surrender of the Environmental Trust Bonds to be exchanged at such office or agency as provided in Section 3.02. Whenever any Environmental Trust Bonds are so surrendered for exchange, the Issuer shall, provided that the requirements of Section 8-401 of the UCC are met, execute, and, upon any such execution, the Indenture Trustee shall authenticate and the Holder shall obtain from the Indenture Trustee, the Environmental Trust Bonds which the Holder making the exchange is entitled to receive.
All Environmental Trust Bonds issued upon any registration of transfer or exchange of other Environmental Trust Bonds shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Environmental Trust Bonds surrendered upon such registration of transfer or exchange.
Every Environmental Trust Bond presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by: (a) a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an institution which is a member of: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other signature guaranty program acceptable to the Indenture Trustee; and (b) such other documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any registration of transfer or exchange of Environmental Trust Bonds, but the Issuer or the Indenture Trustee may require payment of a sum sufficient to cover any tax or other governmental charge or any fees or expenses of the Indenture Trustee that may be imposed in connection with any registration of transfer or exchange of Environmental Trust Bonds, other than exchanges pursuant to Section 2.04 or Section 2.06 not involving any transfer.
The preceding provisions of this Section 2.05 notwithstanding, the Issuer shall not be required to make, and the Environmental Trust Bond Registrar need not register, transfers or exchanges of any Environmental Trust Bond that has been submitted within fifteen (15) days preceding the due date for any payment with respect to such Environmental Trust Bond until after such due date has occurred.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Environmental Trust Bonds. If (a) any mutilated Environmental Trust Bond is surrendered to the Indenture Trustee or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Environmental Trust Bond and (b) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Environmental Trust Bond Registrar or the Indenture Trustee that such Environmental Trust Bond has been acquired by a Protected Purchaser, the Issuer shall, provided that the requirements of Section 8-401 of the UCC are met, execute, and, upon the Issuer’s written request, the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Environmental Trust Bond, a replacement Environmental Trust Bond of like Tranche and principal amount, bearing a number not contemporaneously outstanding; provided, however, that, if any such destroyed, lost or stolen Environmental Trust Bond, but not a mutilated Environmental Trust Bond, shall have become or within seven (7) days shall be due and payable, instead of issuing a replacement Environmental Trust Bond, the Issuer may pay such destroyed, lost or stolen Environmental Trust Bond when so due or payable without surrender thereof. If, after the delivery of such replacement Environmental Trust Bond or payment of a destroyed, lost or stolen Environmental Trust Bond pursuant to the proviso to the preceding sentence, a Protected Purchaser of the original Environmental Trust Bond in lieu of which such replacement Environmental Trust Bond was issued presents for payment such original Environmental Trust Bond, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Environmental Trust Bond (or such payment) from the Person to whom it was delivered or any Person taking such replacement Environmental Trust Bond from such Person to whom such replacement Environmental Trust Bond was delivered or any assignee of such Person, except a Protected Purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.
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Upon the issuance of any replacement Environmental Trust Bond under this Section 2.06, the Issuer and/or the Indenture Trustee may require the payment by the Holder of such Environmental Trust Bond of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee and the Environmental Trust Bond Registrar) in connection therewith.
Every replacement Environmental Trust Bond issued pursuant to this Section 2.06 in replacement of any mutilated, destroyed, lost or stolen Environmental Trust Bond shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Environmental Trust Bond shall be found at any time or enforced by any Person, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Environmental Trust Bonds duly issued hereunder.
The provisions of this Section 2.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Environmental Trust Bonds.
Section 2.07. Persons Deemed Owner. Prior to due presentment for registration of transfer of any Environmental Trust Bond, the Issuer, the Indenture Trustee, the Environmental Trust Bond Registrar and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name any Environmental Trust Bond is registered (as of the day of determination) as the owner of such Environmental Trust Bond for the purpose of receiving payments of principal of and premium, if any, and interest on such Environmental Trust Bond and for all other purposes whatsoever, whether or not such Environmental Trust Bond be overdue, and none of the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
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Section 2.08. Payment of Principal, Premium, if any, and Interest; Interest on Overdue Principal; Principal, Premium, if any, and Interest Rights Preserved.
(a) The Environmental Trust Bonds shall accrue interest as provided in the Series Supplement at the applicable Environmental Trust Bond Interest Rate, and such interest shall be payable on each applicable Payment Date. Any installment of interest, principal or premium, if any, payable on any Environmental Trust Bond which is punctually paid or duly provided for on the applicable Payment Date shall be paid to the Person in whose name such Environmental Trust Bond (or one or more Predecessor Environmental Trust Bonds) is registered on the Record Date for the applicable Payment Date by check mailed first-class, postage prepaid, to the Person whose name appears as the Registered Holder (or by wire transfer to an account maintained by such Holder) in accordance with payment instructions delivered to the Indenture Trustee by such Holder, and, with respect to Book-Entry Environmental Trust Bonds, payments will be made by wire transfer in immediately available funds to the account designated by the Holder of the applicable Global Environmental Trust Bond unless and until such Global Environmental Trust Bond is exchanged for Definitive Environmental Trust Bonds (in which event payments shall be made as provided above) and except for the final installment of principal and premium, if any, payable with respect to such Environmental Trust Bond on a Payment Date, which shall be payable as provided below.
(b) The principal of each Environmental Trust Bond of each Tranche shall be paid, to the extent funds are available therefor in the Collection Account, in installments on each Payment Date as specified in the Series Supplement; provided, that installments of principal not paid when scheduled to be paid in accordance with the Expected Amortization Schedule shall be paid upon receipt of money available for such purpose, in the order set forth in Section 8.02(e). Failure to pay principal in accordance with such Expected Amortization Schedule because moneys are not available pursuant to Section 8.02 to make such payments shall not constitute a Default or Event of Default under this Indenture; provided, however, that failure to pay the entire unpaid principal amount of the Environmental Trust Bonds of a Tranche upon the Final Maturity Date for the Environmental Trust Bonds of such Tranche shall constitute an Event of Default under this Indenture as set forth in Section 5.01. Notwithstanding the foregoing, the entire unpaid principal amount of the Environmental Trust Bonds shall be due and payable, if not previously paid, on the date on which an Event of Default shall have occurred and be continuing, if the Indenture Trustee or the Holders of the Environmental Trust Bonds representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds have declared the Environmental Trust Bonds to be immediately due and payable in the manner provided in Section 5.02. All payments of principal and premium, if any, on the Environmental Trust Bonds shall be made pro rata to the Holders entitled thereto unless otherwise provided in the Series Supplement. The Indenture Trustee shall notify the Person in whose name an Environmental Trust Bond is registered at the close of business on the Record Date preceding the Payment Date on which the Issuer expects that the final installment of principal of and premium, if any, and interest on such Environmental Trust Bond will be paid. Such notice shall be mailed no later than five (5) days prior to such final Payment Date (and, with respect to Book-Entry Environmental Trust Bonds, such notice shall be mailed to the Depository) and shall specify that such final installment will be payable only upon presentation and surrender of such Environmental Trust Bond and shall specify the place where such Environmental Trust Bond may be presented and surrendered for payment of such installment.
(c) If interest on the Environmental Trust Bonds is not paid when due, such defaulted interest shall be paid (plus interest on such defaulted interest at the applicable Environmental Trust Bond Interest Rate to the extent lawful) to the Persons who are Holders on a subsequent Special Record Date. The Issuer shall fix or cause to be fixed any such Special Record Date and Special Payment Date, and, at least ten (10) days before any such Special Record Date, the Issuer shall mail to each affected Holder a notice that states the Special Record Date, the Special Payment Date and the amount of defaulted interest (plus interest on such defaulted interest) to be paid.
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Section 2.09. Cancellation. All Environmental Trust Bonds surrendered for payment, registration of transfer or exchange shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Environmental Trust Bonds previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Environmental Trust Bonds so delivered shall be promptly canceled by the Indenture Trustee. No Environmental Trust Bonds shall be authenticated in lieu of or in exchange for any Environmental Trust Bonds canceled as provided in this Section 2.09, except as expressly permitted by this Indenture. All canceled Environmental Trust Bonds may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time.
Section 2.10. Outstanding Amount; Authentication and Delivery of Environmental Trust Bonds. The aggregate Outstanding Amount of Environmental Trust Bonds that may be authenticated and delivered under this Indenture shall not exceed the aggregate of the amount of Environmental Trust Bonds that are authorized in the Financing Order, but otherwise shall be unlimited.
Environmental Trust Bonds created and established by the Series Supplement may at any time be executed by the Issuer and delivered to the Indenture Trustee for authentication and thereupon the same shall be authenticated and delivered by the Indenture Trustee upon Issuer Request and upon delivery by the Issuer to the Indenture Trustee, and receipt by the Indenture Trustee, or the causing to occur by the Issuer, of the following; provided, however, that compliance with such conditions and delivery of such documents shall only be required in connection with the original issuance of the Environmental Trust Bonds:
(a) Issuer Action. An Issuer Order authorizing and directing the authentication and delivery of the Environmental Trust Bonds by the Indenture Trustee and specifying the principal amount of Environmental Trust Bonds to be authenticated.
(b) Authorizations. Copies of (i) the Financing Order, which shall be in full force and effect and be Final, (ii) certified resolutions of the Managers or Member of the Issuer authorizing the execution and delivery of the Series Supplement and the execution, authentication and delivery of the Environmental Trust Bonds and (iii) the Series Supplement duly executed by the Issuer.
(c) Opinions. An opinion or opinions, portions of which may be delivered by one or more counsel for the Issuer, portions of which may be delivered by one or more counsel for the Servicer, and portions of which may be delivered by one or more counsel for the Seller, dated the Closing Date, in each case subject to the customary exceptions, qualifications and assumptions contained therein, to the collective effect, that (i) all conditions precedent provided for in this Indenture relating to (A) the authentication and delivery of the Issuer’s Environmental Trust Bonds and (B) the execution of the Series Supplement to this Indenture dated as of the date of this Indenture have been complied with, and (ii) the execution of the Series Supplement to this Indenture dated as of the date of this Indenture is permitted by this Indenture, together with the other Opinions of Counsel described in Sections 9(c) through 9(u) of the Underwriting Agreement relating to the Issuer’s Environmental Trust Bonds.
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(d) Authorizing Certificate. An Officer’s Certificate, dated the Closing Date, of the Issuer certifying that (i) the Issuer has duly authorized the execution and delivery of this Indenture and the Series Supplement and the execution and delivery of the Environmental Trust Bonds and (ii) the Series Supplement is in the form attached thereto and complies with the requirements of Section 2.02.
(e) The Environmental Trust Bond Collateral. The Issuer shall have made or caused to be made all filings with the PSCW and the Wisconsin Department of Financial Institutions pursuant to the Financing Order and the Statute and all other filings necessary to perfect the Grant of the Environmental Trust Bond Collateral to the Indenture Trustee and the Lien of this Indenture.
(f) Certificates of the Issuer and the Seller.
(i) An Officer’s Certificate from the Issuer, dated as of the Closing Date:
(A) to the effect that (1) the Issuer is not in Default under this Indenture and that the issuance of the Environmental Trust Bonds will not result in any Default or in any breach of any of the terms, conditions or provisions of or constitute a default under the Financing Order or any indenture, mortgage, deed of trust or other agreement or instrument to which the Issuer is a party or by which it or its property is bound or any order of any court or administrative agency entered in any Proceeding to which the Issuer is a party or by which it or its property may be bound or to which it or its property may be subject and (2) all conditions precedent provided in this Indenture relating to the execution, authentication and delivery of the Environmental Trust Bonds have been complied with;
(B) to the effect that the Issuer has not assigned any interest or participation in the Environmental Trust Bond Collateral except for the Grant contained in this Indenture and the Series Supplement; the Issuer has the power and right to Grant the Environmental Trust Bond Collateral to the Indenture Trustee as security hereunder and thereunder; and the Issuer, subject to the terms of this Indenture, has Granted to the Indenture Trustee a first priority perfected security interest in all of its right, title and interest in and to such Environmental Trust Bond Collateral free and clear of any Lien, mortgage, pledge, charge, security interest, adverse claim or other encumbrance arising as a result of actions of the Issuer or through the Issuer, except Permitted Liens;
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(C) to the effect that the Issuer has appointed the firm of Independent registered public accountants as contemplated in Section 8.06;
(D) to the effect that attached thereto are duly executed, true and complete copies of the Sale Agreement, the Servicing Agreement and the Administration Agreement which are, to the knowledge of the Issuer (and assuming such agreements are enforceable against all parties thereto other than the Issuer and Wisconsin Electric), in full force and effect and, to the knowledge of the Issuer, that no party is in default of its obligations under such agreements; and
(E) stating that all filings with the PSCW, the Wisconsin Department of Financial Institutions and the Delaware Secretary of State pursuant to the Statute, the UCC and the Financing Order and all UCC financing statements with respect to the Environmental Trust Bond Collateral which are required to be filed by the terms of the Financing Order, the Statute, the Sale Agreement, the Servicing Agreement and this Indenture have been filed as required.
(ii) An officer’s certificate from the Seller, dated as of the Closing Date, to the effect that:
(A) in the case of the Environmental Control Property identified in the Bill of Sale, immediately prior to the conveyance thereof to the Issuer pursuant to the Sale Agreement: the Seller was the original and the sole owner of such Environmental Control Property, free and clear of any Lien; the Seller had not assigned any interest or participation in such Environmental Control Property and the proceeds thereof other than to the Issuer pursuant to the Sale Agreement; the Seller has the power, authority and right to own, sell and assign such Environmental Control Property and the proceeds thereof to the Issuer; the Seller has its chief executive office in the State of Wisconsin; and the Seller, subject to the terms of the Sale Agreement, has validly sold and assigned to the Issuer all of its right, title and interest in and to such Environmental Control Property and the proceeds thereof, free and clear of any Lien (other than Permitted Liens) and such sale and assignment is absolute and irrevocable and has been perfected;
(B) the attached copy of the Financing Order creating such Environmental Control Property is true and complete and is in full force and effect; and
(C) an amount equal to the Required Capital Level has been deposited or caused to be deposited by the Seller with the Indenture Trustee for crediting to the Capital Subaccount.
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(g) Accountant’s Certificate or Letter. One or more certificates or letters, addressed to the Issuer, of a firm of Independent registered public accountants of recognized national reputation to the effect that (i) such accountants are Independent with respect to the Issuer within the meaning of this Indenture and are independent public accountants within the meaning of the standards of the Public Company Accounting Oversight Board and (ii) with respect to the Environmental Trust Bond Collateral, they have applied such procedures as instructed by the addressees of such certificate or letter.
(h) Rating Agency Condition. The Indenture Trustee shall receive evidence reasonably satisfactory to it that the Environmental Trust Bonds have received the ratings from the Rating Agencies required by the Underwriting Agreement as a condition to the issuance of the Environmental Trust Bonds.
(i) Requirements of Series Supplement. Such other funds, accounts, documents, certificates, agreements, instruments or opinions as may be required by the terms of the Series Supplement.
(j) Required Capital Level. Evidence satisfactory to the Indenture Trustee that the Required Capital Level has been credited to the Capital Subaccount.
(k) Other Requirements. Such other documents, certificates, agreements, instruments or opinions as the Underwriters may reasonably require.
Section 2.11. Book-Entry Environmental Trust Bonds. Unless the Series Supplement provides otherwise, all of the Environmental Trust Bonds shall be issued in Book-Entry Form, and the Issuer shall execute and the Indenture Trustee shall, in accordance with this Section 2.11 and the Issuer Order, authenticate and deliver one or more Global Environmental Trust Bonds, evidencing the Environmental Trust Bonds, which (a) shall be an aggregate original principal amount equal to the aggregate original principal amount of the Environmental Trust Bonds to be issued pursuant to the Issuer Order, (b) shall be registered in the name of the Clearing Agency therefor or its nominee, which shall initially be Cede & Co., as nominee for DTC, the initial Clearing Agency, (c) shall be delivered by the Indenture Trustee pursuant to such Clearing Agency’s or such nominee’s instructions and (d) shall bear a legend substantially to the effect set forth in Exhibit A.
Each Clearing Agency designated pursuant to this Section 2.11 must, at the time of its designation and at all times while it serves as Clearing Agency hereunder, be a “clearing agency” registered under the Exchange Act and any other applicable statute or regulation.
No Holder of Environmental Trust Bonds issued in Book-Entry Form shall receive a Definitive Environmental Trust Bond representing such Holder’s interest in any of the Environmental Trust Bonds, except as provided in Section 2.13. Unless (and until) certificated, fully registered Environmental Trust Bonds (the “Definitive Environmental Trust Bonds”) have been issued to the Holders pursuant to Section 2.13 or pursuant to the Series Supplement relating thereto:
(i) the provisions of this Section 2.11 shall be in full force and effect;
(ii) the Issuer, the Servicer, the Paying Agent, the Environmental Trust Bond Registrar and the Indenture Trustee may deal with the Clearing Agency for all purposes (including the making of distributions on the Environmental Trust Bonds and the giving of instructions or directions hereunder) as the authorized representative of the Holders;
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(iii) to the extent that the provisions of this Section 2.11 conflict with any other provisions of this Indenture, the provisions of this Section 2.11 shall control;
(iv) the rights of Holders shall be exercised only through the Clearing Agency and the Clearing Agency Participants and shall be limited to those established by law and agreements between such Holders and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Letter of Representations, unless and until Definitive Environmental Trust Bonds are issued pursuant to Section 2.13, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal of and interest on the Book-Entry Environmental Trust Bonds to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken based upon instruction or directions of the Holders evidencing a specified percentage of the Outstanding Amount of Environmental Trust Bonds, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from the Holders and/or the Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Environmental Trust Bonds and has delivered such instructions to a Responsible Officer of the Indenture Trustee.
Section 2.12. Notices to Clearing Agency. Unless and until Definitive Environmental Trust Bonds shall have been issued to Holders pursuant to Section 2.13, whenever notice, payment or other communications to the Holders of Book-Entry Environmental Trust Bonds is required under this Indenture, the Indenture Trustee, the Servicer and the Paying Agent, as applicable, shall give all such notices and communications specified herein to be given to Holders to the Clearing Agency.
Section 2.13. Definitive Environmental Trust Bonds. If (a) (i) the Issuer advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities under any Letter of Representations and (ii) the Issuer is unable to locate a successor Clearing Agency, (b) the Issuer, at its option, advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency or (c) after the occurrence of an Event of Default hereunder, Holders holding Environmental Trust Bonds aggregating not less than a majority of the aggregate Outstanding Amount of Environmental Trust Bonds maintained as Book-Entry Environmental Trust Bonds advise the Indenture Trustee, the Issuer and the Clearing Agency (through the Clearing Agency Participants) in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of the Holders, the Issuer shall notify the Clearing Agency, the Indenture Trustee and all such Holders in writing of the occurrence of any such event and of the availability of Definitive Environmental Trust Bonds to the Holders requesting the same. Upon surrender to the Indenture Trustee of the Global Environmental Trust Bonds by the Clearing Agency accompanied by registration instructions from such Clearing Agency for registration, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, Definitive Environmental Trust Bonds in accordance with the instructions of the Clearing Agency. None of the Issuer, the Environmental Trust Bond Registrar, the Paying Agent or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. Upon the issuance of Definitive Environmental Trust Bonds, the Indenture Trustee shall recognize the Holders of the Definitive Environmental Trust Bonds as Holders hereunder without need for any consent or acknowledgement from the Holders.
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Definitive Environmental Trust Bonds will be transferable and exchangeable at the offices of the Environmental Trust Bond Registrar.
Section 2.14. CUSIP Number. The Issuer in issuing any Environmental Trust Bonds may use a “CUSIP” number and, if so used, the Indenture Trustee shall use the CUSIP number provided to it by the Issuer in any notices to the Holders thereof as a convenience to such Holders; provided, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Environmental Trust Bonds and that reliance may be placed only on the other identification numbers printed on the Environmental Trust Bonds. The Issuer shall promptly notify the Indenture Trustee in writing of any change in the CUSIP number with respect to any Environmental Trust Bond.
Section 2.15. Letter of Representations. Notwithstanding anything to the contrary in this Indenture or the Series Supplement, the parties hereto shall comply with the terms of each Letter of Representations applicable to such party.
Section 2.16. Tax Treatment. The Issuer and the Indenture Trustee, by entering into this Indenture, and the Holders and any Persons holding a beneficial interest in any Environmental Trust Bond, by acquiring any Environmental Trust Bond or interest therein, (a) express their intention that, solely for the purposes of U.S. federal taxes and, to the extent consistent with applicable State, local and other tax law, solely for the purposes of State, local and other taxes, the Environmental Trust Bonds qualify under applicable tax law as indebtedness of the Member secured by the Environmental Trust Bond Collateral and (b) solely for the purposes of U.S. federal taxes and, to the extent consistent with applicable State, local and other tax law, solely for purposes of State, local and other taxes, so long as any of the Environmental Trust Bonds are outstanding, agree to treat the Environmental Trust Bonds as indebtedness of the Member secured by the Environmental Trust Bond Collateral unless otherwise required by appropriate taxing authorities.
Section 2.17. State Pledge. Under the laws of the State of Wisconsin in effect on the Closing Date, pursuant to Section 196.027(8) of the Statute, the State of Wisconsin has pledged to and agreed with Holders of the Environmental Trust Bonds that the State of Wisconsin will not do any of the following: (i) take or permit any action that impairs the value of the Environmental Control Property; (ii) except as allowed under the Statute (relating to True-Up Adjustments), reduce, alter or impair the Environmental Control Charges that are imposed, collected, and remitted for the benefit of Holders of the Environmental Trust Bonds until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with the Environmental Trust Bonds held by the Holders are paid or performed in full.
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The Issuer hereby acknowledges that the purchase of any Environmental Trust Bond by a Holder or the purchase of any beneficial interest in an Environmental Trust Bond by any Person and the Indenture Trustee’s obligations to perform hereunder are made in reliance on such agreement and pledge by the State of Wisconsin.
Section 2.18. Security Interests. The Issuer hereby makes the following representations and warranties:
(a) other than the security interests granted to the Indenture Trustee pursuant to this Indenture and the Series Supplement, the Issuer has not pledged, granted, sold, conveyed or otherwise assigned any interests or security interests in the Environmental Trust Bond Collateral and no security agreement, financing statement or equivalent security or Lien instrument listing the Issuer as debtor covering all or any part of the Environmental Trust Bond Collateral is on file or of record in any jurisdiction, except such as may have been filed, recorded or made by the Issuer in favor of the Indenture Trustee on behalf of the Secured Parties in connection with this Indenture;
(b) this Indenture and the Series Supplement constitute a valid and continuing Lien on, and first priority perfected security interest in, the Environmental Trust Bond Collateral in favor of the Indenture Trustee on behalf of the Secured Parties, which Lien and security interest is prior to all other Liens and is enforceable as such as against creditors of and purchasers from the Issuer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing;
(c) with respect to the Environmental Trust Bond Collateral, this Indenture, together with the Series Supplement, creates a valid and continuing first priority perfected security interest (as defined in the UCC) in such Environmental Trust Bond Collateral, which security interest is prior to all other Liens and is enforceable as such as against creditors of and purchasers from the Issuer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing;
(d) the Issuer has good and marketable title to the Environmental Trust Bond Collateral free and clear of any Lien of any Person other than Permitted Liens;
(e) all of the Environmental Trust Bond Collateral constitutes Environmental Control Property or accounts, deposit accounts, investment property or general intangibles (as each such term is defined in the UCC), except that proceeds of the Environmental Trust Bond Collateral may also take the form of instruments or money;
(f) the Issuer has taken, or caused the Servicer to take, all action necessary to perfect the security interest in the Environmental Trust Bond Collateral granted to the Indenture Trustee, for the benefit of the Secured Parties;
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(g) the Issuer has filed (or has caused the Servicer to file) all appropriate financing statements in the proper filing offices in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Environmental Trust Bond Collateral granted to the Indenture Trustee;
(h) the Issuer has not authorized the filing of and is not aware, after due inquiry, of any financing statements against the Issuer that include a description of the Environmental Trust Bond Collateral other than those filed in favor of the Indenture Trustee;
(i) the Issuer is not aware of any judgment or tax Lien filings against the Issuer;
(j) the Collection Account (including all subaccounts thereof) constitutes a “securities account” and/or a “deposit account” within the meaning of the UCC;
(k) the Issuer has taken all steps necessary to cause the Securities Intermediary of each such securities account to identify in its records the Indenture Trustee as the Person having a security entitlement against the Securities Intermediary in such securities account, no Collection Account is in the name of any Person other than the Indenture Trustee, and the Issuer has not consented to the Securities Intermediary of the Collection Account to comply with entitlement orders of any Person other than the Indenture Trustee; and
(l) all of the Environmental Trust Bond Collateral constituting investment property has been and will have been credited to the Collection Account or a subaccount thereof, and the Securities Intermediary for the Collection Account has agreed to treat all assets credited to the Collection Account (other than cash) as “financial assets” within the meaning of the UCC.
Accordingly, the Indenture Trustee has a first priority perfected security interest in the Collection Account, all funds and financial assets on deposit therein, and all securities entitlements relating thereto. The representations and warranties set forth in this Section 2.18 shall survive the execution and delivery of this Indenture and the issuance of any Environmental Trust Bonds, shall be deemed re-made on each date on which any funds in the Collection Account are distributed to the Issuer or otherwise released from the Lien of the Indenture and may not be waived by any party hereto except pursuant to a supplemental indenture executed in accordance with Article IX and as to which the Rating Agency Condition has been satisfied.
ARTICLE
III
COVENANTS
Section 3.01. Payment of Principal, Premium, if any, and Interest. The principal of and premium, if any, and interest on the Environmental Trust Bonds shall be duly and punctually paid by the Issuer, or the Servicer on behalf of the Issuer, in accordance with the terms of the Environmental Trust Bonds and this Indenture and the Series Supplement; provided, that, except on a Final Maturity Date of a Tranche or upon the acceleration of the Environmental Trust Bonds following the occurrence of an Event of Default, the Issuer shall only be obligated to pay the principal of the Environmental Trust Bonds on each Payment Date therefor to the extent moneys are available for such payment pursuant to Section 8.02. Amounts properly withheld under the Code, the Treasury regulations promulgated thereunder or other tax laws by any Person from a payment to any Holder of interest or principal or premium, if any, shall be considered as having been paid by the Issuer to such Holder for all purposes of this Indenture.
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Section 3.02. Maintenance of Office or Agency. The Issuer shall initially maintain in St. Paul, Minnesota an office or agency where Environmental Trust Bonds may be surrendered for registration of transfer or exchange. The Issuer shall give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. The Issuer hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes, and the Corporate Trust Office of the Indenture Trustee shall serve as the offices provided above in this Section 3.02. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders may be made at the office of the Indenture Trustee located at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders.
Section 3.03. Money for Payments To Be Held in Trust. As provided in Section 8.02(a), all payments of amounts due and payable with respect to any Environmental Trust Bonds that are to be made from amounts withdrawn from the Collection Account pursuant to Section 8.02(d) shall be made on behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from the Collection Account for payments with respect to any Environmental Trust Bonds shall be paid over to the Issuer except as provided in this Section 3.03 and Section 8.02.
Each Paying Agent shall meet the eligibility criteria set forth for any Indenture Trustee under Section 6.11. The Issuer will cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section 3.03, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with respect to the Environmental Trust Bonds in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(b) give the Indenture Trustee, unless the Indenture Trustee is the Paying Agent, and the Rating Agencies written notice of any Default by the Issuer of which it has actual knowledge in the making of any payment required to be made with respect to the Environmental Trust Bonds;
(c) at any time during the continuance of any such Default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;
(d) immediately, with notice to the Rating Agencies, resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Environmental Trust Bonds if at any time the Paying Agent determines that it has ceased to meet the standards required to be met by a Paying Agent at the time of such determination; and
(e) comply with all requirements of the Code, the Treasury regulations promulgated thereunder and other tax laws with respect to the withholding from any payments made by it on any Environmental Trust Bonds of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.
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The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheatment of funds, any money held by the Indenture Trustee or any Paying Agent for the payment of any amount due with respect to any Environmental Trust Bond and remaining unclaimed for two (2) years after such amount has become due and payable shall be paid to the Issuer upon receipt of an Issuer Request; and, subject to Section 10.16, the Holder of such Environmental Trust Bond shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The Indenture Trustee may also adopt and employ, at the expense of the Issuer, any other reasonable means of notification of such repayment (including mailing notice of such repayment to Holders whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Holder).
Section 3.04. Existence. The Issuer shall keep in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other State or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the other Basic Documents, the Environmental Trust Bonds, the Environmental Trust Bond Collateral and each other instrument or agreement referenced herein or therein.
Section 3.05. Protection of Environmental Trust Bond Collateral. The Issuer shall from time to time execute and deliver all such supplements and amendments hereto and all filings with the PSCW, the Secretary of State of the State of Delaware or the Wisconsin Department of Financial Institutions pursuant to the Financing Order, or to the Statute and all financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action necessary or advisable, to:
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(a) maintain or preserve the Lien (and the priority thereof) of this Indenture and the Series Supplement or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;
(c) enforce any of the Environmental Trust Bond Collateral;
(d) preserve and defend title to the Environmental Trust Bond Collateral and the rights of the Indenture Trustee and the Holders in such Environmental Trust Bond Collateral against the Claims of all Persons, including, without limitation, the challenge by any party to the validity or enforceability of the Financing Order, any Tariff, the Environmental Control Property or any proceeding relating thereto and institute any action or proceeding necessary to compel performance by the PSCW or the State of Wisconsin of any of its obligations or duties under the Statute, the State Pledge, the Financing Order or Tariff; and
(e) pay any and all taxes levied or assessed upon all or any part of the Environmental Trust Bond Collateral.
The Indenture Trustee is specifically permitted and authorized, but not required to file financing statements covering the Environmental Trust Bond Collateral, including, without limitation, financing statements that describe the Environmental Trust Bond Collateral as “all assets” or “all personal property” of the Issuer.
Section 3.06. Opinions as to Environmental Trust Bond Collateral.
(a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other requisite documents, and with respect to the execution and filing of any filings with the PSCW, the Delaware Secretary of State or the Wisconsin Department of Financial Institutions pursuant to the Statute and the Financing Order and any financing statements and continuation statements, as are necessary to perfect and make effective the Lien, and the perfected security interest created by this Indenture and the Series Supplement and reciting the details of such action and, based on a review of a current report of the appropriate governmental filing office, no other financing statement has been filed under the applicable UCC, or stating that, in the opinion of such counsel, no such action is necessary to make effective such Lien.
(b) Within ninety (90) days after the beginning of each calendar year beginning with the calendar year beginning January 1, 2022, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel of the Issuer either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents, and with respect to the execution and filing of any filings with the PSCW, the Secretary of State of the State of Delaware or the Wisconsin Department of Financial Institutions pursuant to the Statute and the Financing Order, financing statements and continuation statements, as are necessary to maintain the Lien and the perfected security interest created by this Indenture and the Series Supplement and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to maintain such Lien. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any filings with the PSCW, the Secretary of State of the State of Delaware or the Wisconsin Department of Financial Institutions, financing statements and continuation statements that will, in the opinion of such counsel, be required within the twelve-month period following the date of such opinion to maintain the Lien and the perfected security interest created by this Indenture and the Series Supplement.
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(c) Prior to the effectiveness of any amendment to the Sale Agreement or the Servicing Agreement, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer either (i) stating that, in the opinion of such counsel, all filings, including UCC financing statements and other filings with the PSCW, the Secretary of State of the State of Delaware or the Wisconsin Department of Financial Institutions pursuant to the Statute or the Financing Order have been executed and filed that are necessary fully to maintain the Lien of the Issuer and the Indenture Trustee in the Environmental Control Property and the Environmental Trust Bond Collateral, respectively, and the proceeds thereof, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (ii) stating that, in the opinion of such counsel, no such action shall be necessary to maintain such Lien.
Section 3.07. Performance of Obligations; Servicing; SEC Filings.
(a) The Issuer (i) shall diligently pursue any and all actions to enforce its rights under each instrument or agreement included in the Environmental Trust Bond Collateral and (ii) shall not take any action and shall use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s covenants or obligations under any such instrument or agreement or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except, in each case, as expressly provided in this Indenture, the Series Supplement, the Sale Agreement, the Servicing Agreement, any Intercreditor Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee herein or in an Officer’s Certificate shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Servicer to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its obligations and agreements contained in this Indenture, the Series Supplement, the other Basic Documents and the instruments and agreements included in the Environmental Trust Bond Collateral, including filing or causing to be filed all filings with the PSCW, the Delaware Secretary of State or the Wisconsin Department of Financial Institutions pursuant to the Statute or the Financing Order, all UCC financing statements and all continuation statements required to be filed by it by the terms of this Indenture, the Series Supplement, the Sale Agreement and the Servicing Agreement in accordance with and within the time periods provided for herein and therein.
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(d) If the Issuer shall have knowledge of the occurrence of a Servicer Default under the Servicing Agreement, the Issuer shall promptly give written notice thereof to the Indenture Trustee and the Rating Agencies and shall specify in such notice the response or action, if any, the Issuer has taken or is taking with respect to such Servicer Default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Servicing Agreement with respect to the Environmental Control Property, the Environmental Trust Bond Collateral or the Environmental Control Charges, the Issuer shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to the Servicer and the Rating Agencies of the Servicer’s rights and powers pursuant to Section 7.01 of the Servicing Agreement, the Indenture Trustee may and shall, at the written direction of the Holders evidencing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds and subject to the terms of any Intercreditor Agreement, appoint a successor Servicer (the “Successor Servicer”), and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Issuer and the Indenture Trustee. A Person shall qualify as a Successor Servicer only if such Person satisfies the requirements of the Servicing Agreement. If, within thirty (30) days after the delivery of the notice referred to above, a new Servicer shall not have been appointed, the Indenture Trustee may petition the PSCW or a court of competent jurisdiction to appoint a Successor Servicer. In connection with any such appointment, Wisconsin Electric may make such arrangements for the compensation of such Successor Servicer as it and such successor shall agree, subject to the limitations set forth in Section 8.02 and in the Servicing Agreement.
(f) Upon any termination of the Servicer’s rights and powers pursuant to the Servicing Agreement, the Indenture Trustee shall promptly notify the Issuer, the Holders and the Rating Agencies of such termination. As soon as a Successor Servicer is appointed, the Indenture Trustee shall notify the Issuer, the Holders and the Rating Agencies of such appointment, specifying in such notice the name and address of such Successor Servicer.
(g) The Issuer shall (or shall cause the Sponsor to) post on its website (which for this purpose may be the website of any direct or indirect parent company of the Issuer) and, to the extent consistent with the Issuer’s and the Sponsor’s obligations under applicable law, file with or furnish to the SEC in periodic reports and other reports as are required from time to time under Section 13 or Section 15(d) of the Exchange Act, and shall direct the Indenture Trustee to post on its website for investors the following information (other than any such information filed with the SEC and publicly available to investors unless the Issuer specifically requests such items to be posted) with respect to the Outstanding Environmental Trust Bonds, in each case to the extent such information is reasonably available to the Issuer:
(i) the final Prospectus;
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(ii) statements of any remittances of Environmental Control Charges made to the Indenture Trustee (to be included in a Form 10-D or Form 10-K, or successor forms thereto);
(iii) a statement reporting the balances in the Collection Account and in each subaccount of the Collection Account as of the end of each quarter or the most recent date available (to be included in a Form 10-D or Form 10-K, or successor forms thereto);
(iv) a statement showing the balance of Outstanding Environmental Trust Bonds that reflects the actual periodic payments made on the Environmental Trust Bonds during the applicable period (to be included in the next Form 10-D or Form 10-K filed, or successor forms thereto);
(v) the Semi-Annual Servicer’s Certificate as required to be submitted pursuant to the Servicing Agreement (to be filed with a Form 10-D, Form 10-K or Form 8-K, or successor forms thereto);
(vi) the Monthly Servicer’s Certificate as required to be submitted pursuant to the Servicing Agreement;
(vii) the text (or a link to the website where a reader can find the text) of each filing of a True-Up Adjustment and the results of each such filing;
(viii) any change in the long-term or short-term credit ratings of the Servicer assigned by the Rating Agencies;
(ix) material legislative or regulatory developments directly relevant to the Outstanding Environmental Trust Bonds (to be filed or furnished in a Form 8-K); and
(x) any reports and other information that the Issuer is required to file with the SEC under the Exchange Act.
Notwithstanding the foregoing, nothing herein shall preclude the Issuer from voluntarily suspending or terminating its filing obligations as Issuer with the SEC to the extent permitted by applicable law.
The address of the Indenture Trustee’s website for investors is https//pivot.usbank.com. The Indenture Trustee shall promptly notify the Issuer, the Holders and the Rating Agencies of any change to the address of the website for investors.
(h) The Issuer shall make all filings required under the Statute relating to the transfer of the ownership or security interest in the Environmental Control Property other than those required to be made by the Seller or the Servicer pursuant to the Basic Documents.
Section 3.08. Certain Negative Covenants. So long as any Environmental Trust Bonds are Outstanding, the Issuer shall not:
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(a) except as expressly permitted by this Indenture and the other Basic Documents, sell, transfer, convey, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Environmental Trust Bond Collateral, unless in accordance with Article V;
(b) claim any credit on, or make any deduction from the principal or premium, if any, or interest payable in respect of, the Environmental Trust Bonds (other than amounts properly withheld from such payments under the Code, the Treasury regulations promulgated thereunder or other tax laws) or assert any claim against any present or former Holder by reason of the payment of the taxes levied or assessed upon any part of the Environmental Trust Bond Collateral;
(c) terminate its existence or dissolve or liquidate in whole or in part, except in a transaction permitted by Section 3.10;
(d) (i) permit the validity or effectiveness of this Indenture or the other Basic Documents to be impaired, or permit the Lien of this Indenture and the Series Supplement to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Environmental Trust Bonds under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien (other than the Lien of this Indenture or the Series Supplement) to be created on or extend to or otherwise arise upon or burden the Environmental Trust Bond Collateral or any part thereof or any interest therein or the proceeds thereof (other than tax Liens arising by operation of law with respect to amounts not yet due) or (iii) permit the Lien of the Series Supplement not to constitute a valid first priority perfected security interest in the Environmental Trust Bond Collateral;
(e) enter into any swap, hedge or similar financial instrument;
(f) elect to be classified as an association taxable as a corporation for U.S. federal income tax purposes or otherwise take any action, file any tax return or make any election inconsistent with the treatment of the Issuer, for U.S. federal income tax purposes and, to the extent consistent with applicable State tax law, State income and franchise tax purposes, as a disregarded entity that is not separate from the sole owner of the Issuer;
(g) change its name, identity or structure or the location of its chief executive office, unless at least ten (10) Business Days prior to the effective date of any such change the Issuer delivers to the Indenture Trustee (with copies to the Rating Agencies) such documents, instruments or agreements, executed by the Issuer, as are necessary to reflect such change and to continue the perfection of the security interest of this Indenture and the Series Supplement;
(h) take any action which is subject to a Rating Agency Condition without satisfying the Rating Agency Condition;
(i) except to the extent permitted by applicable law, voluntarily suspend or terminate its filing obligations with the SEC as described in Section 3.07(g); or
(j) issue any environmental trust bonds under the Statute or any similar law other than the Environmental Trust Bonds.
Section 3.09. Annual Statement as to Compliance. The Issuer will deliver to the Indenture Trustee and the Rating Agencies not later than March 31 of each year (commencing with March 31, 2022), an Officer’s Certificate stating, as to the Responsible Officer signing such Officer’s Certificate, that:
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(a) a review of the activities of the Issuer during the preceding twelve (12) months ended December 31 (or, in the case of the first such Officer’s Certificate, since the Closing Date) and of performance under this Indenture has been made; and
(b) to the best of such Responsible Officer’s knowledge, based on such review, the Issuer has in all material respects complied with all conditions and covenants under this Indenture throughout such twelve-month period (or such shorter period in the case of the first such Officer’s Certificate), or, if there has been a default in the compliance of any such condition or covenant, specifying each such default known to such Responsible Officer and the nature and status thereof.
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall (A) be a Person organized and existing under the laws of the United States of America or any State, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form and substance satisfactory to the Indenture Trustee, the performance or observance of every agreement and covenant of this Indenture and the Series Supplement on the part of the Issuer to be performed or observed, all as provided herein and in the Series Supplement, and (C) assume all obligations and succeed to all rights of the Issuer under the Sale Agreement, the Servicing Agreement and each other Basic Document to which the Issuer is a party;
(ii) immediately after giving effect to such merger or consolidation, no Default, Event of Default or Servicer Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such merger or consolidation;
(iv) the Issuer shall have delivered to Wisconsin Electric, the Indenture Trustee and the Rating Agencies an opinion or opinions of outside tax counsel (as selected by the Issuer, in form and substance reasonably satisfactory to Wisconsin Electric and the Indenture Trustee, and which may be based on a ruling from the Internal Revenue Service) to the effect that the consolidation or merger will not result in a material adverse U.S. federal or State income tax consequence to the Issuer, Wisconsin Electric, the Indenture Trustee or the then-existing Holders;
(v) any action as is necessary to maintain the Lien and the perfected security interest in the Environmental Trust Bond Collateral created by this Indenture and the Series Supplement shall have been taken as evidenced by an Opinion of Counsel of external counsel of the Issuer delivered to the Indenture Trustee; and
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(vi) the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel of external counsel of the Issuer each stating that such consolidation or merger and such supplemental indenture comply with this Indenture and the Series Supplement and that all conditions precedent herein provided for in this Section 3.10(a) with respect to such transaction have been complied with (including any filing required by the Exchange Act).
(b) Except as specifically provided herein, the Issuer shall not sell, convey, exchange, transfer or otherwise dispose of any of its properties or assets included in the Environmental Trust Bond Collateral, to any Person, unless:
(i) the Person that acquires the properties and assets of the Issuer, the conveyance or transfer of which is hereby restricted, (A) shall be a United States citizen or a Person organized and existing under the laws of the United States of America or any State, (B) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form and substance satisfactory to the Indenture Trustee, the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein and in the Series Supplement, (C) expressly agrees by means of such supplemental indenture that all right, title and interest so sold, conveyed, exchanged, transferred or otherwise disposed of shall be subject and subordinate to the rights of Holders, (D) unless otherwise provided in the supplemental indenture referred to in Section 3.10(b)(i)(B), expressly agrees to indemnify, defend and hold harmless the Issuer and the Indenture Trustee against and from any loss, liability or expense arising under or related to this Indenture, the Series Supplement and the Environmental Trust Bonds (including the enforcement costs of such indemnity), (E) expressly agrees by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the SEC (and any other appropriate Person) required by the Exchange Act in connection with the Environmental Trust Bonds and (F) if such sale, conveyance, exchange, transfer or disposal relates to the Issuer’s rights and obligations under the Sale Agreement or the Servicing Agreement, assumes all obligations and succeeds to all rights of the Issuer under the Sale Agreement and the Servicing Agreement, as applicable;
(ii) immediately after giving effect to such transaction, no Default, Event of Default or Servicer Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have delivered to Wisconsin Electric, the Indenture Trustee and the Rating Agencies an opinion or opinions of outside tax counsel (as selected by the Issuer, in form and substance reasonably satisfactory to Wisconsin Electric and the Indenture Trustee, and which may be based on a ruling from the Internal Revenue Service) to the effect that the disposition will not result in a material adverse U.S. federal or State income tax consequence to the Issuer, Wisconsin Electric, the Indenture Trustee or the then-existing Holders;
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(v) any action as is necessary to maintain the Lien and the perfected security interest in the Environmental Trust Bond Collateral created by this Indenture and the Series Supplement shall have been taken as evidenced by an Opinion of Counsel of external counsel of the Issuer delivered to the Indenture Trustee; and
(vi) the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel of external counsel of the Issuer each stating that such sale, conveyance, exchange, transfer or other disposition and such supplemental indenture comply with this Indenture and the Series Supplement and that all conditions precedent herein provided for in this Section 3.10(b) with respect to such transaction have been complied with (including any filing required by the Exchange Act).
Section 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with Section 3.10(a), the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer herein.
(b) Except as set forth in Section 6.07, upon a sale, conveyance, exchange, transfer or other disposition of all the assets and properties of the Issuer in accordance with Section 3.10(b), the Issuer will be released from every covenant and agreement of this Indenture and the other Basic Documents to be observed or performed on the part of the Issuer with respect to the Environmental Trust Bonds and the Environmental Control Property immediately following the consummation of such acquisition upon the delivery of written notice to the Indenture Trustee from the Person acquiring such assets and properties stating that the Issuer is to be so released.
Section 3.12. No Other Business. The Issuer shall not engage in any business other than financing, purchasing, owning, administering, managing and servicing the Environmental Control Property and the other Environmental Trust Bond Collateral and the issuance of the Environmental Trust Bonds in the manner contemplated by the Financing Order and this Indenture and the other Basic Documents and activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness except for the Environmental Trust Bonds and any other indebtedness expressly permitted by or arising under the Basic Documents.
Section 3.14. Servicer’s Obligations. The Issuer shall enforce the Servicer’s compliance with and performance of all of the Servicer’s material obligations under the Servicing Agreement.
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Section 3.15. Guarantees, Loans, Advances and Other Liabilities. Except as otherwise contemplated by the Sale Agreement, the Servicing Agreement or this Indenture, the Issuer shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.
Section 3.16. Capital Expenditures. Other than the purchase of Environmental Control Property from the Seller on the Closing Date, the Issuer shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty).
Section 3.17. Restricted Payments. Except as provided in Section 8.04(c), the Issuer shall not, directly or indirectly, (a) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to any owner of an interest in the Issuer or otherwise with respect to any ownership or equity interest or similar security in or of the Issuer, (b) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or similar security or (c) set aside or otherwise segregate any amounts for any such purpose; provided, however, that, if no Event of Default shall have occurred and be continuing or would be caused thereby, the Issuer may make, or cause to be made, any such distributions to any owner of an interest in the Issuer or otherwise with respect to any ownership or equity interest or similar security in or of the Issuer using funds distributed to the Issuer pursuant to Section 8.02(e)(x) to the extent that such distributions would not cause the balance of the Capital Subaccount to decline below the Required Capital Level. The Issuer will not, directly or indirectly, make payments to or distributions from the Collection Account except in accordance with this Indenture and the other Basic Documents.
Section 3.18. Notice of Events of Default. The Issuer agrees to give the Indenture Trustee and the Rating Agencies prompt written notice of each Default or Event of Default hereunder as provided in Section 5.01, and each default on the part of the Seller or the Servicer of its obligations under the Sale Agreement or the Servicing Agreement, respectively.
Section 3.19. Further Instruments and Acts. Upon request of the Indenture Trustee or as required by applicable law, the Issuer shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture and to maintain the first priority perfected security interest of the Indenture Trustee in the Environmental Trust Bond Collateral.
Section 3.20. Inspection. The Issuer agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, during the Issuer’s normal business hours, to examine all the books of account, records, reports and other papers of the Issuer, to make copies and extracts therefrom, to cause such books to be audited annually by Independent registered public accountants, and to discuss the Issuer’s affairs, finances and accounts with the Issuer’s officers, employees and Independent registered public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee shall and shall cause its representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder. Notwithstanding anything herein to the contrary, the preceding sentence shall not be construed to prohibit (a) disclosure of any and all information that is or becomes publicly known, or information obtained by the Indenture Trustee from sources other than the Issuer, provided such parties are rightfully in possession of such information, (b) disclosure of any and all information (i) if required to do so by any applicable statute, law, rule or regulation, (ii) pursuant to any subpoena, civil investigative demand or similar demand or request of any court or regulatory authority exercising its proper jurisdiction, (iii) in any preliminary or final prospectus, registration statement or other document a copy of which has been filed with the SEC, (iv) to any Affiliate, independent or internal auditor, agent, employee or attorney of the Indenture Trustee having a need to know the same, provided that such parties agree to be bound by the confidentiality provisions contained in this Section 3.20, or (v) to any Rating Agency or (c) any other disclosure authorized by the Issuer.
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Section 3.21. Sale Agreement, Servicing Agreement and Administration Agreement Covenants.
(a) The Issuer agrees to take all such lawful actions to enforce its rights under the Sale Agreement, the Servicing Agreement, the Administration Agreement, any Intercreditor Agreement and the other Basic Documents, and to compel or secure the performance and observance by the Seller, the Servicer, the Administrator and Wisconsin Electric of each of their respective obligations to the Issuer under or in connection with the Sale Agreement, the Servicing Agreement, the Administration Agreement, any Intercreditor Agreement and the other Basic Documents in accordance with the terms thereof. So long as no Event of Default occurs and is continuing, but subject to Section 3.21(f), the Issuer may exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Sale Agreement, the Servicing Agreement, the Administration Agreement and any Intercreditor Agreement; provided, that such action shall not adversely affect the interests of the Holders in any material respect.
(b) If an Event of Default occurs and is continuing, the Indenture Trustee may, and at the direction (which direction shall be in writing) of the Holders of a majority of the Outstanding Amount of the Environmental Trust Bonds of all Tranches affected thereby, shall, exercise all rights, remedies, powers, privileges and claims of the Issuer against the Seller, Wisconsin Electric, the Administrator and the Servicer, as the case may be, under or in connection with the Sale Agreement, the Servicing Agreement, the Administration Agreement and any Intercreditor Agreement, including the right or power to take any action to compel or secure performance or observance by the Seller, Wisconsin Electric, the Administrator or the Servicer of each of their obligations to the Issuer thereunder and to give any consent, request, notice, direction, approval, extension or waiver under the Sale Agreement, the Servicing Agreement, the Administration Agreement and any Intercreditor Agreement, and any right of the Issuer to take such action shall be suspended.
(c) Except as set forth in Section 3.21(d), the Administration Agreement, the Sale Agreement, the Servicing Agreement and any Intercreditor Agreement may be amended in accordance with the provisions thereof (including receipt of approval of the PSCW if such approval is required under the terms thereof), so long as either (x) the Rating Agency Condition is satisfied in connection therewith (where required pursuant to the applicable Basic Document) or (y) notice of such amendment has been provided to the Rating Agencies in accordance with the applicable Basic Document, at any time and from time to time, without the consent of the Holders of the Environmental Trust Bonds, but with the acknowledgement of the Indenture Trustee; provided, that the Indenture Trustee shall provide such acknowledgement upon receipt of an Officer’s Certificate of the Issuer evidencing either (x) satisfaction of such Rating Agency Condition or (y) notice of such amendment has been provided to the Rating Agencies in accordance with the applicable Basic Document and an Opinion of Counsel of external counsel of the Issuer stating that such amendment is in accordance with the provisions of such Basic Document, in each case, upon which the Indenture Trustee may conclusively rely.
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(d) Except as set forth in Section 3.21(e), if the Issuer, the Seller, Wisconsin Electric, the Administrator, the Servicer or any other party to the respective agreement below proposes to amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, waiver, supplement, termination or surrender of, the terms of the Sale Agreement, the Administration Agreement, the Servicing Agreement or any Intercreditor Agreement, or waive timely performance or observance by the Issuer, the Seller, Wisconsin Electric, the Administrator, the Servicer or any other party under the Sale Agreement, the Administration Agreement, the Servicing Agreement or any Intercreditor Agreement, in each case in such a way as would materially and adversely affect the interests of any Holder of Environmental Trust Bonds, the Issuer shall first notify the Rating Agencies of the proposed amendment, modification, waiver, supplement, termination or surrender and shall promptly notify the Indenture Trustee and the Holders of the Environmental Trust Bonds in writing of the proposed amendment, modification, waiver, supplement, termination or surrender and whether the Rating Agency Condition has been satisfied with respect thereto (or, pursuant to an Issuer Request, the Indenture Trustee shall so notify the Holders of the Environmental Trust Bonds on the Issuer’s behalf). The Indenture Trustee shall consent to such proposed amendment, modification, waiver, supplement, termination or surrender only if the Rating Agency Condition is satisfied, the approval of the PSCW has been obtained if such approval is required under the terms of such agreement and only with the prior written consent of the Holders of a majority of the Outstanding Amount of Environmental Trust Bonds materially and adversely affected thereby. If any such amendment, modification, waiver, supplement, termination or surrender shall be so consented to by the Indenture Trustee or such Holders, the Issuer agrees to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as shall be necessary or appropriate in the circumstances.
(e) If the Issuer or the Servicer proposes to amend, modify, waive, supplement, terminate or surrender, or to agree to any amendment, modification, supplement, termination, waiver or surrender of, the process for True-Up Adjustments, the Issuer shall notify the Indenture Trustee and the Holders of the Environmental Trust Bonds in writing of such proposal (or, pursuant to an Issuer Request, the Indenture Trustee shall so notify the Holders of the Environmental Trust Bonds on the Issuer’s behalf) and the Indenture Trustee shall consent thereto only with the consent of the PSCW and with the prior written consent of the Holders of a majority of the Outstanding Amount of Environmental Trust Bonds of Tranches affected thereby and only if the Rating Agency Condition has been satisfied with respect thereto.
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(f) Promptly following a default by the Seller under the Sale Agreement, by the Administrator under the Administration Agreement or by any party under any Intercreditor Agreement, or the occurrence of a Servicer Default under the Servicing Agreement, and at the Issuer’s expense, the Issuer agrees to take all such lawful actions as is commercially reasonable or is requested by the Indenture Trustee to compel or secure the performance and observance by each of the Seller and the Administrator or the Servicer, and by such party to any Intercreditor Agreement, of their obligations under and in accordance with the Sale Agreement, the Servicing Agreement, the Administration Agreement and any Intercreditor Agreement, as the case may be, in accordance with the terms thereof, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with such agreements to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of any default by the Seller, the Administrator or the Servicer, respectively, thereunder and the institution of legal or administrative actions or Proceedings to compel or secure performance of their obligations under the Sale Agreement, the Servicing Agreement, the Administration Agreement or any Intercreditor Agreement, as applicable.
Before consenting to any amendment, modification, supplement, termination, waiver or surrender under Sections 3.21(d) or (e), the Indenture Trustee shall be entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion of Counsel stating that such action is authorized and permitted by this Indenture and all conditions precedent to such amendment have been satisfied.
Section 3.22. Taxes. So long as any of the Environmental Trust Bonds are Outstanding, the Issuer shall pay all taxes, assessments and governmental charges imposed upon it or any of its properties or assets or with respect to any of its franchises, business, income or property before any penalty accrues thereon if the failure to pay any such taxes, assessments and governmental charges would, after any applicable grace periods, notices or other similar requirements, result in a Lien on the Environmental Trust Bond Collateral; provided, that no such tax need be paid if the Issuer is contesting the same in good faith by appropriate proceedings promptly instituted and diligently conducted and if the Issuer has established appropriate reserves as shall be required in conformity with generally accepted accounting principles.
Section 3.23. Notices from Holders. The Issuer shall promptly transmit any notice received by it from the Holders to the Indenture Trustee.
Section 3.24. Volcker Rule. The Issuer is structured so as not to be a “covered fund” under the regulations adopted to implement Section 619 of the Dodd Frank Wall Street Reform and Consumer Protection Act, commonly known as the “Volcker Rule.”
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ARTICLE
IV
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 4.01. Satisfaction and Discharge of Indenture; Defeasance.
(a) This Indenture shall cease to be of further effect with respect to the Environmental Trust Bonds, and the Indenture Trustee, on reasonable written demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Environmental Trust Bonds, when:
(i) either:
(A) all Environmental Trust Bonds theretofore authenticated and delivered (other than (1) Environmental Trust Bonds that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.06 and (2) Environmental Trust Bonds for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in the last paragraph of Section 3.03) have been delivered to the Indenture Trustee for cancellation; or
(B) either (1) the Scheduled Final Payment Date has occurred with respect to all Environmental Trust Bonds not theretofore delivered to the Indenture Trustee for cancellation or (2) the Environmental Trust Bonds will be due and payable on their respective Scheduled Final Payment Dates within one year, and, in any such case, the Issuer has irrevocably deposited or caused to be irrevocably deposited in trust with the Indenture Trustee (i) cash and/or (ii) U.S. Government Obligations which through the scheduled payments of principal and interest in respect thereof in accordance with their terms are in an amount sufficient to pay principal, interest and premium, if any, on the Environmental Trust Bonds not theretofore delivered to the Indenture Trustee for cancellation, and all other sums payable hereunder by the Issuer with respect to the Environmental Trust Bonds when scheduled to be paid and to discharge the entire indebtedness on the Environmental Trust Bonds when due;
(ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate, an Opinion of Counsel of external counsel of the Issuer and (if required by the Trust Indenture Act or the Indenture Trustee) an Independent Certificate from a firm of registered public accountants, each meeting the applicable requirements of Section 10.01(a) and each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Environmental Trust Bonds have been complied with.
(b) Subject to Section 4.01(c) and Section 4.02, the Issuer at any time may terminate (i) all its obligations under this Indenture with respect to the Environmental Trust Bonds (“Legal Defeasance Option”) or (ii) its obligations under Section 3.04, Section 3.05, Section 3.06, Section 3.07, Section 3.08, Section 3.09, Section 3.10, Section 3.12, Section 3.13, Section 3.14, Section 3.15, Section 3.16, Section 3.17, Section 3.18 and Section 3.19 and the operation of Section 5.01(c) with respect to the Environmental Trust Bonds (“Covenant Defeasance Option”). The Issuer may exercise the Legal Defeasance Option with respect to the Environmental Trust Bonds notwithstanding its prior exercise of the Covenant Defeasance Option.
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If the Issuer exercises the Legal Defeasance Option, the maturity of the Environmental Trust Bonds may not be accelerated because of an Event of Default. If the Issuer exercises the Covenant Defeasance Option, the maturity of the Environmental Trust Bonds may not be accelerated because of an Event of Default specified in Section 5.01(c).
Upon satisfaction of the conditions set forth herein to the exercise of the Legal Defeasance Option or the Covenant Defeasance Option with respect to the Environmental Trust Bonds, the Indenture Trustee, on reasonable written demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of the obligations that are terminated pursuant to such exercise.
(c) Notwithstanding Section 4.01(a) and Section 4.01(b) above, (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen Environmental Trust Bonds, (iii) rights of Holders to receive payments of principal, premium, if any, and interest, (iv) Section 4.03 and Section 4.04, (v) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Section 4.03) and (vi) the rights of Holders as beneficiaries hereof with respect to the property deposited with the Indenture Trustee payable to all or any of them, each shall survive until this Indenture or certain obligations hereunder have been satisfied and discharged pursuant to Section 4.01(a) or Section 4.01(b). Thereafter the obligations in Section 6.07 and Section 4.04 shall survive.
Section 4.02. Conditions to Defeasance. The Issuer may exercise the Legal Defeasance Option or the Covenant Defeasance Option with respect to the Environmental Trust Bonds only if:
(a) the Issuer has irrevocably deposited or caused to be irrevocably deposited in trust with the Indenture Trustee (i) cash and/or (ii) U.S. Government Obligations which through the scheduled payments of principal and interest in respect thereof in accordance with their terms are in an amount sufficient to pay principal, interest and premium, if any, on the Environmental Trust Bonds not therefore delivered to the Indenture Trustee for cancellation and all other sums payable hereunder by the Issuer with respect to the Environmental Trust Bonds when scheduled to be paid and to discharge the entire indebtedness on the Environmental Trust Bonds when due;
(b) the Issuer delivers to the Indenture Trustee a certificate from a nationally recognized firm of Independent registered public accountants expressing its opinion that the payments of principal of and interest on the deposited U.S. Government Obligations when due and without reinvestment plus any deposited cash will provide cash at such times and in such amounts (but, in the case of the Legal Defeasance Option only, not more than such amounts) as will be sufficient to pay in respect of the Environmental Trust Bonds (i) principal in accordance with the Expected Amortization Schedule therefor, (ii) interest when due and (iii) all other sums payable hereunder by the Issuer with respect to the Environmental Trust Bonds;
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(c) in the case of the Legal Defeasance Option, ninety-five (95) days pass after the deposit is made and during the ninety-five (95)-day period no Default specified in Section 5.01(e) or Section 5.01(f) occurs which is continuing at the end of the period;
(d) no Default has occurred and is continuing on the day of such deposit and after giving effect thereto;
(e) in the case of an exercise of the Legal Defeasance Option, the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer stating that (i) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Environmental Trust Bonds will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(f) in the case of an exercise of the Covenant Defeasance Option, the Issuer shall have delivered to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer to the effect that the Holders of the Environmental Trust Bonds will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(g) the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the satisfaction and discharge of the Environmental Trust Bonds to the extent contemplated by this Article IV have been complied with;
(h) the Issuer delivers to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer to the effect that: (i) in a case under the Bankruptcy Code in which Wisconsin Electric (or any of its Affiliates, other than the Issuer) is the debtor, the court would hold that the deposited moneys or U.S. Government Obligations would not be in the bankruptcy estate of Wisconsin Electric (or any of its Affiliates, other than the Issuer, that deposited the moneys or U.S. Government Obligations); and (ii) in the event Wisconsin Electric (or any of its Affiliates, other than the Issuer, that deposited the moneys or U.S. Government Obligations) were to be a debtor in a case under the Bankruptcy Code, the court would not disregard the separate legal existence of Wisconsin Electric (or any of its Affiliates, other than the Issuer, that deposited the moneys or U.S. Government Obligations) and the Issuer so as to order substantive consolidation under the Bankruptcy Code of the Issuer’s assets and liabilities with the assets and liabilities of Wisconsin Electric or such other Affiliate; and
(i) the Rating Agency Condition shall have been satisfied with respect to the exercise of any Legal Defeasance Option or Covenant Defeasance Option.
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Notwithstanding any other provision of this Section 4.02, no delivery of moneys or U.S. Government Obligations to the Indenture Trustee shall terminate any obligation of the Issuer to the Indenture Trustee under this Indenture or the Series Supplement or any obligation of the Issuer to apply such moneys or U.S. Government Obligations under Section 4.03 until principal of and premium, if any, and interest on the Environmental Trust Bonds shall have been paid in accordance with the provisions of this Indenture and the Series Supplement.
Section 4.03. Application of Trust Money. All moneys or U.S. Government Obligations deposited with the Indenture Trustee pursuant to Section 4.01 or Section 4.02 shall be held in trust and applied by it, in accordance with the provisions of the Environmental Trust Bonds and this Indenture, to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Holders of the particular Environmental Trust Bonds for the payment of which such moneys have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest; but such moneys need not be segregated from other funds except to the extent required herein or in the Servicing Agreement or required by law. Notwithstanding anything to the contrary in this Article IV, the Indenture Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request any moneys or U.S. Government Obligations held by it pursuant to Section 4.02 which, in the opinion of a nationally recognized firm of Independent registered public accountants expressed in a written certification thereof delivered to the Indenture Trustee (and not at the cost or expense of the Indenture Trustee), are in excess of the amount thereof which would be required to be deposited for the purpose for which such moneys or U.S. Government Obligations were deposited; provided, that any such payment shall be subject to the satisfaction of the Rating Agency Condition.
Section 4.04. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture or the Covenant Defeasance Option or Legal Defeasance Option with respect to the Environmental Trust Bonds, all moneys then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture or any Intercreditor Agreement with respect to the Environmental Trust Bonds shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 3.03 and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
ARTICLE
V
REMEDIES
Section 5.01. Events of Default. “Event of Default” wherever used herein, means any one or more of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Environmental Trust Bond when the same becomes due and payable (whether such failure to pay interest is caused by a shortfall in Environmental Control Charges received or otherwise), and such default shall continue for a period of five (5) Business Days;
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(b) default in the payment of the then unpaid principal of any Environmental Trust Bond of any Tranche on the Final Maturity Date for such Tranche;
(c) default in the observance or performance of any covenant or agreement of the Issuer made in this Indenture (other than defaults specified in Section 5.01(a) or Section 5.01(b)), and such default shall continue or not be cured, for a period of thirty (30) days after the earlier of (i) the date that there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of at least 25 percent of the Outstanding Amount of the Environmental Trust Bonds, a written notice specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder or (ii) the date that the Issuer has actual knowledge of the default;
(d) any representation or warranty of the Issuer made in this Indenture or in any certificate or other writing delivered pursuant hereto or in connection herewith proving to have been incorrect in any material respect as of the time when the same shall have been made, and the circumstance or condition in respect of which such representation or warranty was incorrect shall not have been eliminated or otherwise cured, within thirty (30) days after the earlier of (i) the date that there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of at least 25 percent of the Outstanding Amount of the Environmental Trust Bonds, a written notice specifying such incorrect representation or warranty and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder or (ii) the date the Issuer has actual knowledge of the default;
(e) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of the Issuer or any substantial part of the Environmental Trust Bond Collateral in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Environmental Trust Bond Collateral, or ordering the winding-up or liquidation of the Issuer’s affairs, and such decree or order shall remain unstayed and in effect for a period of ninety (90) consecutive days;
(f) the commencement by the Issuer of a voluntary case under any applicable U.S. federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Issuer to the entry of an order for relief in an involuntary case or proceeding under any such law, or the consent by the Issuer to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Environmental Trust Bond Collateral, or the making by the Issuer of any general assignment for the benefit of creditors, or the failure by the Issuer generally to pay its debts as such debts become due, or the taking of action by the Issuer in furtherance of any of the foregoing; or
(g) any act or failure to act by the State of Wisconsin or any of its agencies (including the PSCW), officers or employees which violates or is not in accordance with the State Pledge.
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The Issuer shall deliver to a Responsible Officer of the Indenture Trustee and to the Rating Agencies, within five (5) days after a Responsible Officer of the Issuer has knowledge of the occurrence thereof, written notice in the form of an Officer’s Certificate of any event (i) which is an Event of Default under Section 5.01(a), Section 5.01(b), Section 5.01(f) or Section 5.01(g) or (ii) that with the giving of notice, the lapse of time, or both, would become an Event of Default under Section 5.01(c), Section 5.01(d) or Section 5.01(e), including, in each case, the status of such Default or Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default under Section 5.01(g)) should occur and be continuing, then and in every such case the Indenture Trustee or the Holders representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds may declare the Environmental Trust Bonds to be immediately due and payable, by a notice in writing to the Issuer (and to the Indenture Trustee if given by Holders), and upon any such declaration the unpaid principal amount of the Environmental Trust Bonds, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Holders representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay:
(i) all payments of principal of and premium, if any, and interest on all Environmental Trust Bonds due and owing at such time as if such Event of Default had not occurred and was not continuing and all other amounts that would then be due hereunder or upon the Environmental Trust Bonds if the Event of Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal of the Environmental Trust Bonds that has become due solely by such acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right consequent thereto.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) If an Event of Default under Section 5.01(a) or Section 5.01(b) has occurred and is continuing, subject to Section 10.18, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and, subject to the limitations on recourse set forth herein, may enforce the same against the Issuer or other obligor upon the Environmental Trust Bonds and collect in the manner provided by law out of the property of the Issuer or other obligor upon the Environmental Trust Bonds, wherever situated the moneys payable, or the Environmental Trust Bond Collateral and the proceeds thereof, the whole amount then due and payable on the Environmental Trust Bonds for principal, premium, if any, and interest, with interest upon the overdue principal and premium, if any, and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest, at the respective rate borne by the Environmental Trust Bonds or the applicable Tranche and in addition thereto such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and external counsel.
(b) If an Event of Default (other than an Event of Default under Section 5.01(g)) occurs and is continuing, the Indenture Trustee shall, as more particularly provided in Section 5.04, proceed to protect and enforce its rights and the rights of the Holders, by such appropriate Proceedings as the Indenture Trustee, subject to Section 5.11, shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture and the Series Supplement or by law, including foreclosing or otherwise enforcing the Lien of the Environmental Trust Bond Collateral securing the Environmental Trust Bonds or applying to a court of competent jurisdiction for sequestration of revenues arising with respect to the Environmental Control Property.
(c) If an Event of Default under Section 5.01(e) or Section 5.01(f) has occurred and is continuing, the Indenture Trustee, irrespective of whether the principal of any Environmental Trust Bonds shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section 5.03, shall be entitled and empowered, by intervention in any Proceedings related to such Event of Default or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Environmental Trust Bonds and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad faith) and of the Holders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on behalf of the Holders in any election of a trustee in bankruptcy, a standby trustee or Person performing similar functions in any such Proceedings;
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(iii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Holders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Holders allowed in any judicial proceeding relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Holders to make payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Holders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Environmental Trust Bonds or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Holder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture, or under any of the Environmental Trust Bonds, may be enforced by the Indenture Trustee without the possession of any of the Environmental Trust Bonds or the production thereof in any trial or other Proceedings relative thereto, and any such action or proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Environmental Trust Bonds.
(f) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Holders of the Environmental Trust Bonds, and it shall not be necessary to make any Holder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default (other than an Event of Default under Section 5.01(g)) shall have occurred and be continuing, the Indenture Trustee may do one or more of the following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Environmental Trust Bonds or under this Indenture with respect thereto, whether by declaration of acceleration or otherwise, and, subject to the limitations on recovery set forth herein, enforce any judgment obtained, and collect from the Issuer or any other obligor moneys adjudged due, upon the Environmental Trust Bonds;
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(ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Environmental Trust Bond Collateral;
(iii) exercise any remedies of a secured party under the UCC, the Statute or any other applicable law and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Holders of the Environmental Trust Bonds;
(iv) at the written direction of the Holders of a majority of the Outstanding Amount of the Environmental Trust Bonds, either sell the Environmental Trust Bond Collateral or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law, or elect that the Issuer maintain possession of all or a portion of the Environmental Trust Bond Collateral pursuant to Section 5.05 and continue to apply the EC Charge Collection as if there had been no declaration of acceleration; and
(v) exercise all rights, remedies, powers, privileges and claims of the Issuer against the Seller, the Administrator, Wisconsin Electric or the Servicer under or in connection with, and pursuant to the terms of, the Sale Agreement, the Administration Agreement, any Intercreditor Agreement or the Servicing Agreement;
provided, however, that the Indenture Trustee may not sell or otherwise liquidate any portion of the Environmental Trust Bond Collateral following such an Event of Default, other than an Event of Default described in Section 5.01(a) or Section 5.01(b) unless (A) the Holders of 100 percent of the Outstanding Amount of the Environmental Trust Bonds consent thereto, (B) the proceeds of such sale or liquidation distributable to the Holders are sufficient to discharge in full all amounts then due and unpaid upon the Environmental Trust Bonds for principal, premium, if any, and interest after taking into account payment of all amounts due prior thereto pursuant to the priorities set forth in Section 8.02(e) or (C) the Indenture Trustee determines that the Environmental Trust Bond Collateral will not continue to provide sufficient funds for all payments on the Environmental Trust Bonds as they would have become due if the Environmental Trust Bonds had not been declared due and payable, and the Indenture Trustee obtains the written consent of Holders of at least 66 2/3 percent of the Outstanding Amount of the Environmental Trust Bonds. In determining such sufficiency or insufficiency with respect to clause (B) above and clause (C) above, the Indenture Trustee may, but need not, obtain and conclusively rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Environmental Trust Bond Collateral for such purpose.
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(b) If an Event of Default under Section 5.01(g) shall have occurred and be continuing, the Indenture Trustee, for the benefit of the Secured Parties, shall be entitled and empowered, to the extent permitted by applicable law, to institute or participate in Proceedings necessary to compel performance of or to enforce the State Pledge and to collect any monetary damages incurred by the Holders or the Indenture Trustee as a result of any such Event of Default, and may prosecute any such Proceeding to final judgment or decree. Such remedy shall be the only remedy that the Indenture Trustee may exercise if the only Event of Default that has occurred and is continuing is an Event of Default under Section 5.01(g).
(c) If the Indenture Trustee collects any money pursuant to this Article V, it shall pay out such money in accordance with the priorities set forth in Section 8.02(e).
Section 5.05. Optional Preservation of the Collateral. If the Environmental Trust Bonds have been declared to be due and payable under Section 5.02 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, but need not, elect to maintain possession of all or a portion of the Environmental Trust Bond Collateral. It is the desire of the parties hereto and the Holders that there be at all times sufficient funds for the payment of principal of and premium, if any, and interest on the Environmental Trust Bonds, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Environmental Trust Bond Collateral. In determining whether to maintain possession of the Environmental Trust Bond Collateral or sell or liquidate the same, the Indenture Trustee may, but need not, obtain and conclusively rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Environmental Trust Bond Collateral for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Environmental Trust Bond shall have any right to institute any Proceeding, judicial or otherwise, to avail itself of any remedies provided in the Statute or to avail itself of the right to foreclose on the Environmental Trust Bond Collateral or otherwise enforce the Lien and the security interest on the Environmental Trust Bond Collateral with respect to this Indenture and the Series Supplement, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder previously has given written notice to the Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than a majority of the Outstanding Amount of the Environmental Trust Bonds have made written request to the Indenture Trustee to institute such Proceeding in respect of such Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has failed to institute such Proceedings; and
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(e) no direction inconsistent with such written request has been given to the Indenture Trustee during such sixty-day period by the Holders of a majority of the Outstanding Amount of the Environmental Trust Bonds; it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders, each representing less than a majority of the Outstanding Amount of the Environmental Trust Bonds, the Indenture Trustee in its sole discretion may file a petition with a court of competent jurisdiction to resolve such conflict or determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Holders To Receive Principal, Premium, if any, and Interest. Notwithstanding any other provisions in this Indenture, the Holder of any Environmental Trust Bond shall have the right, which is absolute and unconditional, (a) to receive payment of (i) the interest, if any, on such Environmental Trust Bond on the due dates thereof expressed in such Environmental Trust Bond or in this Indenture or (ii) the unpaid principal, if any, of the Environmental Trust Bonds on the Final Maturity Date therefor and (b) to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture Trustee or any Holder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Holder, then and in every such case the Issuer, the Indenture Trustee and the Holders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Holders shall continue as though no such Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee or any Holder to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Holders, as the case may be.
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Section 5.11. Control by Holders. The Holders of not less than a majority of the Outstanding Amount of the Environmental Trust Bonds (or, if less than all Tranches are affected, the affected Tranche or Tranches) shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Environmental Trust Bonds of such Tranche or Tranches or exercising any trust or power conferred on the Indenture Trustee with respect to such Tranche or Tranches; provided, that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture or the Series Supplement and shall not involve the Indenture Trustee in any personal liability or expense;
(b) subject to other conditions specified in Section 5.04, any direction to the Indenture Trustee to sell or liquidate any Environmental Trust Bond Collateral shall be by the Holders representing 100 percent of the Outstanding Amount of the Environmental Trust Bonds as provided in Section 5.04;
(c) if the conditions set forth in Section 5.05 have been satisfied and the Indenture Trustee elects to retain the Environmental Trust Bond Collateral pursuant to Section 5.05, then any direction to the Indenture Trustee by Holders representing less than 100 percent of the Outstanding Amount of the Environmental Trust Bonds to sell or liquidate the Environmental Trust Bond Collateral shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction;
provided, however, that the Indenture Trustee’s duties shall be subject to Section 6.01, and the Indenture Trustee need not take any action that it determines might involve it in liability or might materially adversely affect the rights of any Holders not consenting to such action. Furthermore and without limiting the foregoing, the Indenture Trustee shall not be required to take any action for which it reasonably believes that it will not be indemnified to its satisfaction against any cost, expense or liabilities.
Section 5.12. Waiver of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Environmental Trust Bonds as provided in Section 5.02, the Holders representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds of an affected Tranche may waive any past Default or Event of Default and its consequences except a Default (a) in payment of principal of or premium, if any, or interest on any of the Environmental Trust Bonds or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Environmental Trust Bond of all Tranches affected. In the case of any such waiver, the Issuer, the Indenture Trustee and the Holders shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto
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Section 5.13. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Environmental Trust Bond by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.13 shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Holder, or group of Holders, in each case holding in the aggregate more than ten (10) percent of the Outstanding Amount of the Environmental Trust Bonds or (c) any suit instituted by any Holder for the enforcement of the payment of (i) interest on any Environmental Trust Bond on or after the due dates expressed in such Environmental Trust Bond and in this Indenture or (ii) the unpaid principal, if any, of any Environmental Trust Bond on or after the Final Maturity Date therefor.
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon or plead or, in any manner whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.15. Action on Environmental Trust Bonds. The Indenture Trustee’s right to seek and recover judgment on the Environmental Trust Bonds or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Holders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Environmental Trust Bond Collateral or any other assets of the Issuer.
ARTICLE
VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming on their face to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own negligent action, its own bad faith, its own negligent failure to act or its own willful misconduct, except that:
(i) this Section 6.01(c) does not limit the effect of Section 6.01(b);
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by the Indenture Trustee unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it hereunder.
(d) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject to Section 6.01(a), Section 6.01(b) and Section 6.01(c).
(e) The Indenture Trustee shall not be liable for interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuer.
(f) Money held by the Indenture Trustee need not be segregated from other funds held by the Indenture Trustee except to the extent required by law or the terms of this Indenture or any Intercreditor Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayments of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section 6.01 and to the provisions of the Trust Indenture Act.
(i) In the event that the Indenture Trustee is also acting as Paying Agent or Environmental Trust Bond Registrar hereunder, the protections of this Article VI shall also be afforded to the Indenture Trustee in its capacity as Paying Agent or Environmental Trust Bond Registrar.
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(j) Except for the express duties of the Indenture Trustee set forth in the Basic Documents, the Indenture Trustee shall have no obligation to administer, service or collect Environmental Control Property or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Environmental Control Charges.
(k) Under no circumstance shall the Indenture Trustee be liable for any indebtedness of the Issuer, the Servicer or the Seller evidenced by or arising under the Environmental Trust Bonds or the Basic Documents. None of the provisions of this Indenture shall in any event require the Indenture Trustee to perform or to be responsible for the performance of any of the Servicer’s obligations under the Basic Documents.
(l) Commencing with March 15, 2022, on or before March 15th of each fiscal year ending December 31, the Indenture Trustee shall (i) deliver to the Issuer a report (in form and substance reasonably satisfactory to the Issuer and addressed to the Issuer and signed by an authorized officer of the Indenture Trustee) regarding the Indenture Trustee’s assessment of compliance, during the immediately preceding fiscal year ended December 31, with each of the applicable servicing criteria specified on Exhibit C hereto as required under Rule 13a-18 and Rule 15d-18 under the Exchange Act and Item 1122 of Regulation AB and (ii) deliver to the Issuer a report of an Independent registered public accounting firm reasonably acceptable to the Issuer that attests to and reports on, in accordance with Rule 1-02(a)(3) and Rule 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act, the assessment of compliance made by the Indenture Trustee and delivered pursuant to Section 6.01(l)(i).
(m) The Indenture Trustee shall not be required to take any action it is directed to take under this Indenture if the Indenture Trustee determines in good faith that the action so directed is inconsistent with the Indenture, any other Basic Document or Applicable Law, or would involve the Indenture Trustee in personal liability.
(n) The Indenture Trustee shall not be responsible for special, indirect, punitive or consequential damages, except for its own willful misconduct, negligence or bad faith.
(o) In no event shall the Indenture Trustee be liable for failure to perform its duties hereunder if such failure is a direct result of another party’s failure to perform its obligations hereunder.
(p) Any discretion, permissive right or privilege of the Indenture Trustee hereunder shall not be deemed to be or otherwise construed as a duty or obligation.
(q) The Indenture Trustee’s receipt of publicly available reports hereunder shall not constitute notice of any information contained therein or determinable therefrom, including but not limited to a party’s compliance with covenants under the Indenture.
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Section 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely and shall be fully protected in relying on any document (including electronic documents and communications delivered in accordance with the terms of this Indenture) believed by it to be genuine and to have been signed or presented by the proper person. The Indenture Trustee need not investigate any fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may require and shall be entitled to receive an Officer’s Certificate or an Opinion of Counsel of external counsel of the Issuer (at no cost or expense to the Indenture Trustee) that such action is required or permitted hereunder. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care by it hereunder. The Indenture Trustee shall give prompt written notice to the Rating Agencies, of the appointment of any such agent, custodian or nominee to whom it delegates any of its express duties under this Indenture; provided, that the Indenture Trustee shall not be obligated to give such notice (i) if the Issuer or the Holders have directed the Indenture Trustee to appoint such agent, custodian or nominee (in which event the Issuer shall give prompt notice to the Rating Agencies of any such direction) or (ii) of the appointment of any agents, custodians or nominees made at any time that an Event of Default on account of non-payment of principal or interest on the Environmental Trust Bonds or insolvency of the Issuer has occurred and is continuing.
(d) The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice or opinion of counsel with respect to legal matters and such accountants or other experts with respect to other matters relating to this Indenture and the Environmental Trust Bonds shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel, accountants and other experts.
(f) The Indenture Trustee shall be under no obligation to (i) take any action or exercise any of the rights or powers vested in it by this Indenture or any other Basic Document at the request or direction of any of the Holders pursuant to this Indenture or (ii) to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto or thereto or to investigate any matter, at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture and the Series Supplement or otherwise, unless it shall have grounds to believe in its discretion that security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby is to its satisfaction assured to it.
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(g) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, acts of war or terrorism, epidemics, pandemics, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer systems services, it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(h) The Indenture Trustee shall not be deemed to have notice or knowledge of any Default, Servicer Default or Event of Default unless a Responsible Officer of the Indenture Trustee has actual knowledge thereof or the Indenture Trustee has received written notice thereof pursuant to Section 10.04(a)(i).
Section 6.03. Individual Rights of Indenture Trustee. The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Environmental Trust Bonds and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee. Any Paying Agent, Environmental Trust Bond Registrar, co-registrar or co-paying agent or agent appointed under Section 3.02 may do the same with like rights. However, the Indenture Trustee must comply with Section 6.11 and Section 6.12.
Section 6.04. Indenture Trustee’s Disclaimer. The Indenture Trustee shall not be responsible for and makes no representation (other than as set forth in Section 6.13) as to the validity or adequacy of this Indenture or the Environmental Trust Bonds, it shall not be accountable for the Issuer’s use of the proceeds from the Environmental Trust Bonds, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Environmental Trust Bonds or in the Environmental Trust Bonds other than the Indenture Trustee’s certificate of authentication. The Indenture Trustee shall not be responsible for the form, character, genuineness, sufficiency, value or validity of any of the Environmental Trust Bond Collateral, or for or in respect of the Environmental Trust Bonds (other than the certificate of authentication for the Environmental Trust Bonds) or the Basic Documents, and the Indenture Trustee shall in no event assume or incur any liability, duty or obligation to any Holder, other than as expressly provided in this Indenture. The Indenture Trustee shall not be liable for the default or misconduct of the Issuer, the Seller or the Servicer under the Basic Documents or otherwise, and the Indenture Trustee shall have no obligation or liability to perform the obligations of such Persons.
Section 6.05. Notice of Defaults. If a Default occurs and is continuing and if it is actually known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail to each Rating Agency and each Holder notice of the Default within ten (10) Business Days after such Default was actually known to a Responsible Officer of the Indenture Trustee (provided that the Indenture Trustee shall give the Rating Agencies prompt notice of any payment default in respect of the Environmental Trust Bonds). Except in the case of a Default in payment of principal of and premium, if any, or interest on any Environmental Trust Bond, the Indenture Trustee may withhold the notice if a Responsible Officer in good faith determines that prompt notice of the Default is not likely to be material to Holders and the Default is likely to be cured and therefore that withholding the notice is in the interests of Holders. Except for an Event of Default under Section 5.01(a) or Section 5.01(b) that occurs at a time when the Indenture Trustee is acting as the Paying Agent, and except as provided in the first sentence of this Section 6.05, in no event shall the Indenture Trustee be deemed to have knowledge of a Default.
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Section 6.06. Reports by Indenture Trustee to Holders.
(a) So long as Environmental Trust Bonds are Outstanding and the Indenture Trustee is the Environmental Trust Bond Registrar and Paying Agent, upon the written request of any Holder or the Issuer, within the prescribed period of time for tax reporting purposes after the end of each calendar year, the Indenture Trustee shall deliver to each relevant current or former Holder such information in its possession as may be required to enable such Holder to prepare its U.S. federal income and any applicable local or State tax returns. If the Environmental Trust Bond Registrar and Paying Agent is other than the Indenture Trustee, such Environmental Trust Bond Registrar and Paying Agent, within the prescribed period of time for tax reporting purposes after the end of each calendar year, shall deliver to each relevant current or former Holder such information in its possession as may be required to enable such Holder to prepare its U.S. federal income and any applicable local or State tax returns.
(b) On or prior to each Payment Date or Special Payment Date therefor, the Indenture Trustee will deliver to each Holder of the Environmental Trust Bonds on such Payment Date or Special Payment Date a statement as provided and prepared by the Servicer, which will include (to the extent applicable) the following information (and any other information so specified in the Series Supplement) as to the Environmental Trust Bonds with respect to such Payment Date or Special Payment Date or the period since the previous Payment Date, as applicable:
(i) the amount of the payment to Holders allocable to principal, if any;
(ii) the amount of the payment to Holders allocable to interest;
(iii) the aggregate Outstanding Amount of the Environmental Trust Bonds, before and after giving effect to any payments allocated to principal reported under Section 6.06(b)(i);
(iv) the difference, if any, between the amount specified in Section 6.06(b)(iii) and the Outstanding Amount specified in the related Expected Amortization Schedule;
(v) any other transfers and payments to be made on such Payment Date or Special Payment Date, including amounts paid to the Indenture Trustee and to the Servicer; and
(vi) the amounts on deposit in the Capital Subaccount and the Excess Funds Subaccount, after giving effect to the foregoing payments
(c) The Issuer shall send a copy of each of the Certificate of Compliance delivered to it pursuant to Section 3.03 of the Servicing Agreement and the Annual Accountant’s Report delivered to it pursuant to Section 3.04 of the Servicing Agreement to the Rating Agencies, the Indenture Trustee and to the Servicer for posting on the 17g-5 Website in accordance with Rule 17g-5 under the Exchange Act. A copy of such certificate and report may be obtained by any Holder by a request in writing to the Indenture Trustee.
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(d) The Indenture Trustee may consult with counsel and the advice or opinion of such counsel with respect to legal matters relating to this Indenture and the Environmental Trust Bonds shall be full and complete authorization and protection from liability with respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
Section 6.07. Compensation and Indemnity. The Issuer shall pay to the Indenture Trustee from time to time reasonable compensation for its services. The Indenture Trustee’s compensation shall not, to the extent permitted by law, be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Issuer shall indemnify and hold harmless the Indenture Trustee and its officers, directors, employees and agents (each an “Indemnified Person”) against any and all cost, damage, loss, liability, tax or expense (including reasonable attorneys’ fees and expenses, the fees of experts and agents and any reasonable extraordinary out-of-pocket expenses) incurred by it in connection with the administration and the enforcement of this Indenture, the Series Supplement and the other Basic Documents, including the costs and expenses of defending themselves against any claim of liability in connection with the exercise of the Indenture Trustee’s rights, powers and obligations under this Indenture, the Series Supplement and the other Basic Documents and the performance of its duties hereunder and obligations under or pursuant to this Indenture, the Series Supplement and the other Basic Documents and the costs of defending any claim or bringing any claim to enforce the Issuer’s indemnification obligations hereunder. The Issuer shall not be required to indemnify the Indemnified Person for any amount paid or payable by such Indemnified Person in the settlement of any action, proceeding or investigation without the prior written consent of the Issuer which consent shall not be unreasonably withheld. Promptly after receipt by an Indemnified Person of notice of the commencement of any action, proceeding or investigation, such Indemnified Person shall, if a claim in respect thereof is to be made against the Issuer under this Section 6.07, notify the Issuer in writing of the commencement thereof. Failure by an Indemnified Person to so notify the Issuer shall not relieve the Issuer from the obligation to indemnify and hold harmless such Indemnified Person under this Section 6.07. With respect to any action, proceeding or investigation brought by a third party for which indemnification may be sought under this Section 6.07, the Issuer shall be entitled to conduct and control, at its expense and with counsel of its choosing that is reasonably satisfactory to such Indemnified Person, the defense of any such action, proceeding or investigation (in which case the Issuer shall not thereafter be responsible for the fees and expenses of any separate counsel retained by such Indemnified Person except as set forth below); provided that such Indemnified Person shall have the right to participate in such action, proceeding or investigation through counsel chosen by it and at its own expense. Notwithstanding the Issuer’s election to assume the defense of any action, proceeding or investigation, such Indemnified Person shall have the right to employ separate counsel (including local counsel), and the Issuer shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the defendants in any such action include both the Indemnified Person and the Issuer and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Issuer, (ii) the Issuer shall not have employed counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such action or (iii) the Issuer shall authorize the Indemnified Person to employ separate counsel at the expense of the Issuer. Notwithstanding the foregoing, the Issuer shall not be obligated to pay for the fees, costs and expenses of more than one separate counsel for the Indemnified Person other than one local counsel, if appropriate. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indemnified Person’s own willful misconduct, negligence or bad faith. The rights of the Indenture Trustee set forth in this Section 6.07 are subject to and limited by the priority of payments set forth in Section 8.02(e).
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The payment obligations to the Indenture Trustee pursuant to this Section 6.07 shall survive the discharge of this Indenture and the Series Supplement or the earlier resignation or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.01(e) or Section 5.01(f) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable U.S. federal or State bankruptcy, insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee and Securities Intermediary.
(a) The Indenture Trustee (or any other Eligible Institution in any capacity under the Indenture) may resign at any time upon thirty (30) days’ prior written notice to the Issuer subject to Section 6.08(c). The Holders of a majority of the Outstanding Amount of the Environmental Trust Bonds may remove the Indenture Trustee (or any other Eligible Institution in any capacity under the Indenture) with thirty (30) days’ prior written notice by so notifying the Indenture Trustee (or such other Eligible Institution) and may appoint a successor Indenture Trustee (or successor Eligible Institution in the applicable capacity). The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes incapable of acting; or
(v) the Indenture Trustee fails to provide to the Issuer any information reasonably requested by the Issuer pertaining to the Indenture Trustee and necessary for the Issuer or the Sponsor to comply with its respective reporting obligations under the Exchange Act and Regulation AB and such failure is not resolved to the Issuer’s and the Indenture Trustee’s mutual satisfaction within a reasonable period of time.
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Any removal or resignation of the Indenture Trustee shall also constitute a removal or resignation of the Securities Intermediary. The Issuer shall remove any person (other than the Indenture Trustee) acting in any capacity under the Indenture that fails to constitute an Eligible Institution with 30 days’ prior notice.
(b) If the Indenture Trustee gives notice of resignation or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a successor Indenture Trustee and Securities Intermediary. If any person (other than the Indenture Trustee) acting in any capacity under the Indenture as an Eligible Institution is removed, fails to constitute an Eligible Institution or if a vacancy exists in any such capacity for any reason, the Issuer shall promptly appoint a successor to such capacity that constitutes an Eligible Institution.
(c) A successor Indenture Trustee (or any other successor Eligible Institution) shall deliver a written acceptance of its appointment as the Indenture Trustee and as the Securities Intermediary (or any such other capacity) to the retiring Indenture Trustee (or any such other capacity) and to the Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee (or any such other Person) shall become effective, and the successor Indenture Trustee (or such other successor Eligible Institution) shall have all the rights, powers and duties of the Indenture Trustee and Securities Intermediary (or such other Eligible Institution), as applicable, under this Indenture and the other Basic Documents. No resignation or removal of the Indenture Trustee (or any other Person acting as an Eligible Institution) pursuant to this Section 6.08 shall become effective until acceptance of the appointment by a successor Indenture Trustee having the qualifications set forth in Section 6.11 (or acceptance of the appointment by such other successor Eligible Institution). Notice of any such appointment shall be promptly given to each Rating Agency by the successor Indenture Trustee. The successor Indenture Trustee shall mail a notice of its succession (or the succession of any other Eligible Institution) to Holders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee. The retiring Eligible Institution shall promptly transfer all property held by it in its capacity hereunder to the successor Eligible Institution).
(d) If a successor Indenture Trustee (or other successor Eligible Institution) does not take office within sixty (60) days after the retiring Indenture Trustee (or other retiring Eligible Institution) resigns or is removed, the retiring Indenture Trustee (or other retiring Eligible Institution), the Issuer or the Holders of a majority in Outstanding Amount of the Environmental Trust Bonds may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee (or other successor Eligible Institution).
(e) If the Indenture Trustee fails to comply with Section 6.11, any Holder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee pursuant to this Section 6.08, the Issuer’s obligations under Section 6.07 shall continue for the benefit of the retiring Indenture Trustee.
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Section 6.09. Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any further act shall be the successor Indenture Trustee; provided, however, that, if such successor Indenture Trustee is not eligible under Section 6.11, then the successor Indenture Trustee shall be replaced in accordance with Section 6.08. Notice of any such event shall be promptly given to each Rating Agency by the successor Indenture Trustee.
In case at the time such successor or successors by merger, conversion, consolidation or transfer shall succeed to the trusts created by this Indenture any of the Environmental Trust Bonds shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee and deliver the Environmental Trust Bonds so authenticated; and, in case at that time any of the Environmental Trust Bonds shall not have been authenticated, any successor to the Indenture Trustee may authenticate the Environmental Trust Bonds either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Environmental Trust Bonds or in this Indenture provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the trust created by this Indenture or the Environmental Trust Bond Collateral may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the trust created by this Indenture or the Environmental Trust Bond Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Secured Parties, such title to the Environmental Trust Bond Collateral, or any part hereof, and, subject to the other provisions of this Section 6.10, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.11 and no notice to Holders of the appointment of any co-trustee or separate trustee shall be required under Section 6.08. Notice of any such appointment shall be promptly given to each Rating Agency by the Indenture Trustee.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Environmental Trust Bond Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;
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(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then-separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or its attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee shall at all times satisfy the requirements of Section 310(a)(1) of the Trust Indenture Act, Section 310(a)(5) of the Trust Indenture Act and Section 26(a)(1) of the Investment Company Act. The Indenture Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition and shall have a long-term debt rating from Moody’s in one of its generic rating categories that signifies investment grade and a long-term debt rating from S&P of at least “A”. The Indenture Trustee shall comply with Section 310(b) of the Trust Indenture Act, including the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met.
Section 6.12. Preferential Collection of Claims Against Issuer. The Indenture Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. An Indenture Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
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Section 6.13. Representations and Warranties of Indenture Trustee. The Indenture Trustee hereby represents and warrants that, as of the date hereof :
(a) the Indenture Trustee is a national banking association validly existing under the laws of the United States of America;
(b) the Indenture Trustee has full power, authority and legal right to execute, deliver and perform its obligations under this Indenture and the other Basic Documents to which the Indenture Trustee is a party and has taken all necessary action to authorize the execution, delivery and performance of obligations by it of this Indenture and such other Basic Documents; and
(c) No consent, license, approval or authorization of, or filing or registration with, any governmental authority, bureau or agency is required to be obtained that has not been obtained by the Indenture Trustee in connection with the execution, delivery or performance by the Indenture Trustee of this Indenture and the Basic Documents to which the Indenture Trustee is a party.
Section 6.14. Annual Report by Independent Registered Public Accountants. In the event the firm of Independent registered public accountants requires the Indenture Trustee to agree or consent to the procedures performed by such firm pursuant to Section 3.04(a) of the Servicing Agreement, the Indenture Trustee shall deliver such letter of agreement or consent in conclusive reliance upon the direction of the Issuer in accordance with Section 3.04(a) of the Servicing Agreement. In the event such firm requires the Indenture Trustee to agree to the procedures performed by such firm, the Issuer shall direct the Indenture Trustee in writing to so agree; it being understood and agreed that the Indenture Trustee will deliver such letter of agreement in conclusive reliance upon the direction of the Issuer, and the Indenture Trustee makes no independent inquiry or investigation to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures.
Section 6.15. Custody of Environmental Trust Bond Collateral. The Indenture Trustee shall hold such of the Environmental Trust Bond Collateral (and any other collateral that may be granted to the Indenture Trustee) as consists of instruments, deposit accounts, negotiable documents, money, goods, letters of credit and advices of credit in the State of New York. The Indenture Trustee shall hold such of the Environmental Trust Bond Collateral as constitute investment property through the Securities Intermediary (which, as of the date hereof, is U.S. Bank National Association). The initial Securities Intermediary hereby agrees (and each future Securities Intermediary shall agree) with the Indenture Trustee that (a) such investment property shall at all times be credited to a securities account of the Indenture Trustee, (b) the Securities Intermediary shall treat the Indenture Trustee as entitled to exercise the rights that comprise each financial asset credited to such securities account, (c) all property credited to such securities account shall be treated as a financial asset, (d) the Securities Intermediary shall comply with entitlement orders originated by the Indenture Trustee without the further consent of any other Person, (e) the Securities Intermediary will not agree with any Person other than the Indenture Trustee to comply with entitlement orders originated by such other Person, (f) such securities accounts and the property credited thereto shall not be subject to any Lien or right of set-off in favor of the Securities Intermediary or anyone claiming through it (other than the Indenture Trustee) and (g) such agreement shall be governed by the internal laws of the State of New York. The Indenture Trustee shall hold any Environmental Trust Bond Collateral consisting of money in a deposit account and shall act as “bank” for purposes of perfecting the security interest in such deposit account. Terms used in the two preceding sentences that are defined in the UCC and not otherwise defined herein shall have the meaning set forth in the UCC. Except as permitted by this Section 6.15 or elsewhere in this Indenture, the Indenture Trustee shall not hold Environmental Trust Bond Collateral through an agent or a nominee.
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ARTICLE VII
HOLDERS’ LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of Holders. The Issuer will furnish or cause to be furnished to the Indenture Trustee (a) not more than five (5) days after the earlier of (i) each Record Date and (ii) six (6) months after the last Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Holders as of such Record Date, and (b) at such other times as the Indenture Trustee may request in writing, within thirty (30) days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten (10) days prior to the time such list is furnished; provided, however, that, so long as the Indenture Trustee is the Environmental Trust Bond Registrar, no such list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Indenture Trustee in its capacity as Environmental Trust Bond Registrar. The Indenture Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(b) Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Environmental Trust Bonds. In addition, upon the written request of any Holder or group of Holders of Outstanding Environmental Trust Bonds evidencing not less than 10 percent of the Outstanding Amount of the Environmental Trust Bonds, the Indenture Trustee shall afford the Holder or Holders making such request a copy of a current list of Holders for purposes of communicating with other Holders with respect to their rights hereunder; provided, that the Indenture Trustee gives prior written notice to the Issuer of such request.
(c) The Issuer, the Indenture Trustee and the Environmental Trust Bond Registrar shall have the protection of Section 312(c) of the Trust Indenture Act.
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Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) so long as the Issuer or the Sponsor is required to file such documents with the SEC, provide to the Indenture Trustee, within fifteen (15) days after the Issuer is required to file the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer or the Sponsor may be required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) provide to the Indenture Trustee and file with the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Holders described in Section 313(c) of the Trust Indenture Act), such summaries of any information, documents and reports required to be filed by the Issuer pursuant to Section 7.03(a)(i) and Section 7.03(a)(ii) as may be required by rules and regulations prescribed from time to time by the SEC.
Except as may be provided by Section 313(c) of the Trust Indenture Act, the Issuer may fulfill its obligation to provide the materials described in this Section 7.03(a) by providing such materials in electronic format.
Delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only, and the Indenture Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by Section 313(a) of the Trust Indenture Act, within sixty (60) days after March 30 of each year, commencing with March 30, 2022, the Indenture Trustee shall mail to each Holder as required by Section 313(c) of the Trust Indenture Act a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Indenture Trustee also shall comply with Section 313(b) of the Trust Indenture Act; provided, however, that the initial report so issued shall be delivered not more than twelve (12) months after the initial issuance of the Environmental Trust Bonds.
A copy of each report at the time of its mailing to Holders shall be filed by the Servicer with the SEC and each stock exchange, if any, on which the Environmental Trust Bonds are listed. The Issuer shall notify the Indenture Trustee in writing if and when the Environmental Trust Bonds are listed on any stock exchange.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture and the other Basic Documents. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Environmental Trust Bond Collateral, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, subject to Article VI, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02. Collection Account.
(a) Prior to the Closing Date, the Issuer shall open or cause to be opened with the Securities Intermediary located at the Indenture Trustee’s office located at the Corporate Trust Office, or at another Eligible Institution, one or more segregated trust accounts in the Indenture Trustee’s name for the deposit of Estimated EC Charge Collections, EC Charge Collections and all other amounts received with respect to the Environmental Trust Bond Collateral (the “Collection Account”). The Collection Account will consist of three subaccounts: a general subaccount (the “General Subaccount”); an excess funds subaccount (the “Excess Funds Subaccount”); and a capital subaccount (the “Capital Subaccount” and, together with the General Subaccount and the Excess Funds Subaccount, the “Subaccounts”). For administrative purposes, the Subaccounts may be established by the Securities Intermediary as separate accounts. Such separate accounts will be recognized individually as a Subaccount and collectively as the “Collection Account.” Prior to or concurrently with the issuance of the Environmental Trust Bonds, the Member shall deposit into the Capital Subaccount an amount equal to the Required Capital Level. All amounts in the Collection Account not allocated to any other subaccount shall be allocated to the General Subaccount. Prior to the Initial Payment Date, all amounts in the Collection Account (other than funds deposited into the Capital Subaccount up to the Required Capital Level) shall be allocated to the General Subaccount. All references to the Collection Account shall be deemed to include reference to all subaccounts contained therein. Withdrawals from and deposits to each of the foregoing subaccounts of the Collection Account shall be made as set forth in Section 8.02(d) and Section 8.02(e). The Collection Account shall at all times be maintained in an Eligible Account and will be under the sole dominion and exclusive control of the Indenture Trustee, through the Securities Intermediary, and only the Indenture Trustee shall have access to the Collection Account for the purpose of making deposits in and withdrawals from the Collection Account in accordance with this Indenture. Funds in the Collection Account shall not be commingled with any other moneys. All moneys deposited from time to time in the Collection Account, all deposits therein pursuant to this Indenture and all investments made in Eligible Investments as directed in writing by the Issuer with such moneys, including all income or other gain from such investments, shall be held by the Securities Intermediary in the Collection Account as part of the Environmental Trust Bond Collateral as herein provided. The Securities Intermediary shall have no liability in respect of losses incurred as a result of the liquidation of any Eligible Investment prior to its stated maturity or its date of redemption or the failure of the Issuer or the Servicer to provide timely written investment direction.
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(b) The Securities Intermediary hereby confirms that (i) the Collection Account is, or at inception will be established as, a “securities account” as such term is defined in Section 8-501(a) of the UCC, (ii) it is a “securities intermediary” (as such term is defined in Section 8-102(a)(14) of the UCC) and is acting in such capacity with respect to such accounts, (iii) the Indenture Trustee for the benefit of the Secured Parties is the sole “entitlement holder” (as such term is defined in Section 8-102(a)(7) of the UCC) with respect to such accounts and (iv) no other Person shall have the right to give “entitlement orders” (as such term is defined in Section 8-102(a)(8)) with respect to such accounts. The Securities Intermediary hereby further agrees that each item of property (whether investment property, financial asset, security, instrument or cash) received by it will be credited to the Collection Account. Such property, other than cash, shall be treated by it as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC. The Indenture Trustee shall hold any Environmental Trust Bond Collateral consisting of money in the Collection Account and hereby confirms that for such purpose, the Collection Account is a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC. The Indenture Trustee further confirms that for purposes of perfecting the security interest in such deposit account, it shall act as the “bank” within the meaning of Section 9-102(a)(8) of the UCC. Notwithstanding anything to the contrary, the State of New York shall be deemed to be the jurisdiction of the Securities Intermediary for purposes of Section 8-110(e) of the UCC and of the Indenture Trustee acting as the “bank” for purposes of Section 9-304(a) of the UCC, and the Collection Account (as well as the securities entitlements related thereto) shall be governed by the laws of the State of New York. The Securities Intermediary represents and agrees that (i) the “account agreement” (within the meaning of the Hague Securities Convention establishing the Collection Account is governed by the law of the State of New York and that the law of the State of New York shall govern all issues specified in Article 2(1) of the Hague Securities Convention and (ii) at the time of entry of such account agreement, the Securities Intermediary had one or more offices (within the meaning of the Hague Securities Convention) in the United States of America which satisfies the criteria provided in Article 4(1)(a) or (b) of the Hague Securities Convention.
(c) The Indenture Trustee shall have sole dominion and exclusive control over all moneys in the Collection Account through the Securities Intermediary and shall apply such amounts therein as provided in this Section 8.02.
(d) Estimated EC Charge Collections and EC Charge Collections shall be deposited in the General Subaccount as provided in Section 6.11 of the Servicing Agreement. All deposits to and withdrawals from the Collection Account, all allocations to the subaccounts of the Collection Account and any amounts to be paid to the Servicer under Section 8.02(e) shall be made by the Indenture Trustee in accordance with the written instructions provided by the Servicer in the Monthly Servicer’s Certificate, the Semi-Annual Servicer’s Certificate or upon other written notice provided by the Servicer pursuant to Section 6.11(a) of the Servicing Agreement, as applicable.
(e) On each Payment Date, the Indenture Trustee shall apply all amounts on deposit in the Collection Account, including all Investment Earnings thereon, to pay the following amounts, solely in accordance with the Semi-Annual Servicer’s Certificate, in the following priority:
(i) all amounts owed by the Issuer to the Indenture Trustee (including legal fees and expenses and outstanding indemnity amounts) shall be paid to the Indenture Trustee (subject to Section 6.07) in an amount not to exceed the amount set forth in the Series Supplement;
(ii) the Servicing Fee with respect to such Payment Date and all unpaid Servicing Fees for prior Payment Dates shall be paid to the Servicer;
(iii) the Administration Fee for such Payment Date shall be paid to the Administrator, and the Independent Manager Fee for such Payment Date shall be paid to the Independent Manager, and in each case with any unpaid Administration Fees or Independent Manager Fees from prior Payment Dates;
(iv) all other ordinary and periodic Operating Expenses for such Payment Date not described above shall be paid to the parties to which such Operating Expenses are owed;
(v) Periodic Interest for such Payment Date, including any overdue Periodic Interest (together with, to the extent lawful, interest on such overdue Periodic Interest at the applicable Environmental Trust Bond Interest Rate), with respect to the Environmental Trust Bonds shall be paid to the Holders of Environmental Trust Bonds;
(vi) principal due and payable on the Environmental Trust Bonds as a result of an acceleration upon an Event of Default or on the Final Maturity Date of the Environmental Trust Bonds shall be paid to the Holders of Environmental Trust Bonds;
(vii) Periodic Principal for such Payment Date, including any overdue Periodic Principal, with respect to the Environmental Trust Bonds shall be paid to the Holders of Environmental Trust Bonds, pro rata if there is a deficiency;
(viii) any other unpaid Operating Expenses (including fees, expenses and indemnity amounts owed to the Indenture Trustee but unpaid due to the limitation in Section 8.02(e)(i)) and any remaining amounts owed pursuant to the Basic Documents shall be paid the parties to which such Operating Expenses or remaining amounts are owed;
(ix) replenishment of the amount, if any, by which the Required Capital Level exceeds the amount in the Capital Subaccount as of such Payment Date shall be allocated to the Capital Subaccount;
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(x) the Return on Invested Capital then due and payable, and any related taxes thereon, shall be paid to Wisconsin Electric;
(xi) the balance, if any, shall be allocated to the Excess Funds Subaccount for distribution on subsequent Payment Dates; and
(xii) after the principal of and premium, if any, and interest on all of the Environmental Trust Bonds, and all of the other foregoing amounts have been paid in full, including, without limitation, amounts due and payable to the Indenture Trustee under Section 6.07 or otherwise, the balance (including all amounts then held in the Capital Subaccount and the Excess Funds Subaccount), if any, shall be paid to the Issuer, free from the Lien of this Indenture and the Series Supplement.
All payments to the Holders of the Environmental Trust Bonds pursuant to Section 8.02(e)(v), Section 8.02(e)(vi) and Section 8.02(e)(vii) shall be made to such Holders pro rata based on the respective amounts of interest and/or principal owed, unless, in the case of Environmental Trust Bonds comprised of two or more Tranches, the Series Supplement provides otherwise. Payments in respect of principal of and premium, if any, and interest on any Tranche of Environmental Trust Bonds will be made on a pro rata basis among all the Holders of such Tranche. In the case of an Event of Default, then, in accordance with Section 5.04(c), in respect of any application of moneys pursuant to Section 8.02(e)(v) or Section 8.02(e)(vi), moneys will be applied pursuant to Section 8.02(e)(v) and Section 8.02(e)(vi), as the case may be, in such order, on a pro rata basis, based upon the interest or the principal owed.
(f) If on any Payment Date, or, for any amounts payable under Section 8.02(e)(i), Section 8.02(e)(ii), Section 8.02(e)(iii) and Section 8.02(e)(iv), on any Business Day, funds on deposit in the General Subaccount are insufficient to make the payments contemplated by Section 8.02(e)(i), Section 8.02(e)(ii), Section 8.02(e)(iii), Section 8.02(e)(iv), Section 8.02(e)(v), Section 8.02(e)(vi), Section 8.02(e)(vii), and Section 8.02(e)(viii), the Indenture Trustee shall (i) first, draw from amounts on deposit in the Excess Funds Subaccount, and (ii) second, draw from amounts on deposit in the Capital Subaccount, in each case, up to the amount of such shortfall in order to make the payments contemplated by Section 8.02(e)(i), Section 8.02(e)(ii), Section 8.02(e)(iii), Section 8.02(e)(iv), Section 8.02(e)(v), Section 8.02(e)(vi), Section 8.02(e)(vii) and Section 8.02(e)(viii). In addition, if on any Payment Date funds on deposit in the General Subaccount are insufficient to make the allocations contemplated by Section 8.02(e)(ix), the Indenture Trustee shall draw from amounts on deposit in the Excess Funds Subaccount to make such allocations to the Capital Subaccount.
(g) On any Business Day upon which the Indenture Trustee receives a written request from the Administrator stating that any Operating Expense payable by the Issuer (but only as described in Section 8.02(e)(i), Section 8.02(e)(ii), Section 8.02(e)(iii) and Section 8.02(e)(iv)) will become due and payable prior to the next Payment Date, and setting forth the amount and nature of such Operating Expense, as well as any supporting documentation that the Indenture Trustee may reasonably request, the Indenture Trustee, upon receipt of such information, will make payment of such Operating Expenses on or before the date such payment is due from amounts on deposit in the General Subaccount, the Excess Funds Subaccount and the Capital Subaccount, in that order and only to the extent required to make such payment.
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Section 8.03. General Provisions Regarding the Collection Account.
(a) So long as no Default or Event of Default shall have occurred and be continuing, all or a portion of the funds in the Collection Account shall be invested in Eligible Investments and reinvested by the Indenture Trustee upon Issuer Order; provided, however, that such Eligible Investments shall not mature or be redeemed later than the Business Day prior to the next Payment Date or Special Payment Date, if applicable, for the Environmental Trust Bonds. All income or other gain from investments of moneys deposited in the Collection Account shall be deposited by the Indenture Trustee in such Collection Account, and any loss resulting from such investments shall be charged to the Collection Account. The Issuer will not direct the Indenture Trustee to make any investment of any funds or to sell any investment held in the Collection Account unless the security interest Granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of Counsel of external counsel of the Issuer (at the Issuer’s cost and expense) to such effect. In no event shall the Indenture Trustee be liable for the selection of Eligible Investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any Eligible Investment prior to its stated maturity or its date of redemption or the failure of the Issuer or the Servicer to provide timely written investment direction. The Indenture Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of written investment direction pursuant to an Issuer Order.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in the Collection Account resulting from any loss on any Eligible Investment included therein except for losses attributable to the Indenture Trustee’s failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give written investment directions for any funds on deposit in the Collection Account to the Indenture Trustee by 11:00 a.m. New York City time (or such other time as may be agreed by the Issuer and Indenture Trustee) on any Business Day or (ii) a Default or Event of Default shall have occurred and be continuing with respect to the Environmental Trust Bonds but the Environmental Trust Bonds shall not have been declared due and payable pursuant to Section 5.02, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in such Collection Account in Eligible Investments specified in the most recent written investment directions delivered by the Issuer to the Indenture Trustee; provided, that if the Issuer has never delivered written investment directions to the Indenture Trustee, the Indenture Trustee shall not invest or reinvest such funds in any investments.
(d) The parties hereto acknowledge that the Servicer may, pursuant to the Servicing Agreement, select Eligible Investments on behalf of the Issuer.
(e) Except as otherwise provided hereunder or agreed in writing among the parties hereto, the Issuer shall retain the authority to institute, participate and join in any plan of reorganization, readjustment, merger or consolidation with respect to the issuer of any Eligible Investments held hereunder, and, in general, to exercise each and every other power or right with respect to each such asset or investment as Persons generally have and enjoy with respect to their own assets and investment, including power to vote upon any Eligible Investments.
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Section 8.04. Release of Environmental Trust Bond Collateral.
(a) So long as the Issuer is not in default hereunder and no Default hereunder would occur as a result of such action, the Issuer, through the Servicer, may collect, sell or otherwise dispose of written-off receivables relating to any Environmental Trust Bond Collateral, at any time and from time to time in the ordinary course of business, without any notice to, or release or consent by, the Indenture Trustee, but only as and to the extent permitted by the Basic Documents; provided, however, that any and all proceeds of such dispositions shall become Environmental Trust Bond Collateral and be deposited to the General Subaccount immediately upon receipt thereof by the Issuer or any other Person, including the Servicer. Without limiting the foregoing, the Servicer, may, at any time and from time to time without any notice to, or release or consent by, the Indenture Trustee, sell or otherwise dispose of any Environmental Trust Bond Collateral previously written-off as a defaulted or uncollectible account in accordance with the terms of the Servicing Agreement and the requirements of the proviso in the immediately preceding sentence.
(b) The Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the Lien of this Indenture, or convey the Indenture Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys. The Indenture Trustee shall release property from the Lien of this Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer Request accompanied by an Officer’s Certificate, an Opinion of Counsel of external counsel of the Issuer (at the Issuer’s cost and expense) and (if required by the Trust Indenture Act) Independent Certificates in accordance with Section 314(c) of the Trust Indenture Act and Section 314(d)(1) of the Trust Indenture Act meeting the applicable requirements of Section 10.01.
(c) The Indenture Trustee shall, at such time as there are no Environmental Trust Bonds Outstanding and all sums payable to the Indenture Trustee pursuant to Section 6.07 or otherwise have been paid, release any remaining portion of the Environmental Trust Bond Collateral that secured the Environmental Trust Bonds from the Lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds or investments then on deposit in or credited to the Collection Account.
Section 8.05. Opinion of Counsel. The Indenture Trustee shall receive at least seven (7) days’ notice when requested by the Issuer to take any action pursuant to Section 8.04, accompanied by copies of any instruments involved, and the Indenture Trustee shall also require, as a condition to such action, an Opinion of Counsel of external counsel of the Issuer, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the perfection or priority of the remaining security for the Environmental Trust Bonds or the rights of the Holders in contravention of the provisions of this Indenture and the Series Supplement; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Environmental Trust Bond Collateral. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action.
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Section 8.06. Reports by Independent Registered Public Accountants. As of the Closing Date, the Issuer shall appoint a firm of Independent registered public accountants of recognized national reputation for purposes of preparing and delivering the reports or certificates of such accountants required by this Indenture and the Series Supplement. In the event such firm requires the Indenture Trustee to agree to the procedures performed by such firm, the Issuer shall direct the Indenture Trustee in writing to so agree, it being understood and agreed that the Indenture Trustee will deliver such letter of agreement in conclusive reliance upon the direction of the Issuer, and the Indenture Trustee makes no independent inquiry or investigation to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures. Upon any resignation by, or termination by the Issuer of, such firm, the Issuer shall provide written notice thereof to the Indenture Trustee and shall promptly appoint a successor thereto that shall also be a firm of Independent registered public accountants of recognized national reputation. If the Issuer shall fail to appoint a successor to a firm of Independent registered public accountants that has resigned or been terminated within fifteen (15) days after such resignation or termination, the Indenture Trustee shall promptly notify the Issuer of such failure in writing. If the Issuer shall not have appointed a successor within ten (10) days thereafter, the Indenture Trustee shall promptly appoint a successor firm of Independent registered public accountants of recognized national reputation; provided, that the Indenture Trustee shall have no liability with respect to such appointment. The fees of such Independent registered public accountants and its successor shall be payable by the Issuer as an Operating Expense.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
(a) Subject to paragraph (c) of this Section 9.01, without the consent of the Holders of any Environmental Trust Bonds but with prior notice to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property, including, without limitation, the Environmental Trust Bond Collateral, at any time subject to the Lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the Lien of this Indenture and the Series Supplement, or to subject to the Lien of this Indenture and the Series Supplement additional property;
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(ii) to evidence the succession, in compliance with the applicable provisions hereof, of another Person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Environmental Trust Bonds;
(iii) to add to the covenants of the Issuer, for the benefit of the Secured Parties, or to surrender any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity or mistake, to correct or supplement any provision herein or in any supplemental indenture, including the Series Supplement, which may be inconsistent with any other provision herein or in any supplemental indenture, including the Series Supplement, or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided, that (A) such action shall not, as evidenced by an Opinion of Counsel of external counsel of the Issuer, adversely affect in any material respect the interests of the Holders of the Environmental Trust Bonds and (B) the Rating Agency Condition shall have been satisfied with respect thereto;
(vi) to evidence and provide for the acceptance of the appointment hereunder by a successor trustee with respect to the Environmental Trust Bonds and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act or under any similar or successor federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the Trust Indenture Act;
(viii) to evidence the final terms of the Environmental Trust Bonds in the Series Supplement;
(ix) to qualify the Environmental Trust Bonds for registration with a Clearing Agency;
(x) to satisfy any Rating Agency requirements;
(xi) to make any amendment to this Indenture or the Environmental Trust Bonds relating to the transfer and legending of the Environmental Trust Bonds to comply with applicable securities laws; or
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(xii) to conform the text of this Indenture or the Environmental Trust Bonds to any provision of the registration statement filed by the Issuer with the SEC with respect to the issuance of the Environmental Trust Bonds to the extent that such provision was intended to be a verbatim recitation of a provision of this Indenture or the Environmental Trust Bonds.
The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.
(b) Subject to paragraph (c) of this Section 9.01, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, also without the consent of any of the Holders of the Environmental Trust Bonds, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Environmental Trust Bonds under this Indenture; provided, however, that (i) such action shall not, as evidenced by an Opinion of Counsel of nationally recognized counsel of the Issuer experienced in structured finance transactions, adversely affect in any material respect the interests of the Holders and (ii) the Rating Agency Condition shall have been satisfied with respect thereto.
(c) Following the issuance of the Environmental Trust Bonds pursuant to the Series Supplement, this Indenture shall not be supplemented without the approval of the PSCW if (1) such approval is required pursuant to Wis. Stat. § 196.52, or (2) such supplement would increase the ongoing Financing Costs of the Issuer. The Issuer will specify in the Issuer Order requesting the Indenture Trustee to execute any such supplement as to whether approval of the PSCW is required and whether such supplement would increase the ongoing Financing Costs of the Issuer.
Section 9.02. Supplemental Indentures with Consent of Holders. Subject to paragraph (c) of Section 9.01, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, with prior notice to the Rating Agencies and with the consent of the Holders of not less than a majority of the Outstanding Amount of the Environmental Trust Bonds of each Tranche to be adversely affected, by Act of such Holders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Environmental Trust Bonds under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Environmental Trust Bond of each Tranche affected thereby:
(i) change the date of payment of any installment of principal of or premium, if any, or interest on any Environmental Trust Bond of such Tranche, or reduce the principal amount thereof, the interest rate thereon or premium, if any, with respect thereto;
(ii) change the provisions of this Indenture and the Series Supplement relating to the application of collections on, or the proceeds of the sale of, the Environmental Trust Bond Collateral to payment of principal of or premium, if any, or interest on the Environmental Trust Bonds, or change any place of payment where, or the coin or currency in which, any Environmental Trust Bond or the interest thereon is payable;
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(iii) reduce the percentage of the Outstanding Amount of the Environmental Trust Bonds or of a Tranche thereof, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture;
(iv) reduce the percentage of the Outstanding Amount of the Environmental Trust Bonds required to direct the Indenture Trustee to direct the Issuer to sell or liquidate the Environmental Trust Bond Collateral pursuant to Section 5.04;
(v) modify any provision of this Section 9.02, except to increase any percentage specified herein or to provide that those provisions of this Indenture or the other Basic Documents referenced in this Section 9.02 cannot be modified or waived without the consent of the Holder of each Outstanding Environmental Trust Bond affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest, principal or premium, if any, due on any Environmental Trust Bond on any Payment Date (including the calculation of any of the individual components of such calculation) or change the Expected Amortization Schedule or Final Maturity Date of any Tranche of Environmental Trust Bonds;
(vii) decrease the Required Capital Level;
(viii) permit the creation of any Lien ranking prior to or on a parity with the Lien of this Indenture with respect to any part of the Environmental Trust Bond Collateral or, except as otherwise permitted or contemplated herein, terminate the Lien of this Indenture on any property at any time subject hereto or deprive the Holder of any Environmental Trust Bond of the security provided by the Lien of this Indenture;
(ix) cause any material adverse U.S. federal income tax consequence to the Seller, the Issuer, the Managers, the Indenture Trustee or the then-existing Holders; or
(x) impair the right to institute suit for the enforcement of the provisions of this Indenture regarding payment or application of funds.
It shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section 9.02, the Issuer shall mail to the Rating Agencies a copy of such supplemental indenture and to the Holders of the Environmental Trust Bonds to which such supplemental indenture relates either a copy of such supplemental indenture or a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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Section 9.03. Execution of Supplemental Indentures. In executing any supplemental indenture permitted by this Article IX or the modifications thereby of the trust created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Section 6.01 and Section 6.02, shall be fully protected in relying upon an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and all conditions precedent, if any, provided for in this Indenture relating to such supplemental indenture or modification have been satisfied. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith with respect to each Tranche of Environmental Trust Bonds affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act as then in effect so long as this Indenture shall then be qualified under the Trust Indenture Act.
Section 9.06. Reference in Environmental Trust Bonds to Supplemental Indentures. Environmental Trust Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may bear a notation as to any matter provided for in such supplemental indenture. If the Issuer or the Indenture Trustee shall so determine, new Environmental Trust Bonds so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Environmental Trust Bonds.
ARTICLE
X
MISCELLANEOUS
Section 10.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel the proposed action is authorized or permitted and all such conditions precedent, if any, have been complied with and (iii) (if required by the Trust Indenture Act) an Independent Certificate from a firm of registered public accountants meeting the applicable requirements of this Section 10.01, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) Prior to the deposit of any Environmental Trust Bond Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the Lien of this Indenture, the Issuer shall, in addition to any obligation imposed in Section 10.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within ninety (90) days of such deposit) to the Issuer of the Environmental Trust Bond Collateral or other property or securities to be so deposited.
(c) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signer thereof as to the matters described in Section 10.01(b), the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuer of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of the Issuer, as set forth in the certificates delivered pursuant to Section 10.01(b) and this Section 10.01(c), is ten percent or more of the Outstanding Amount of the Environmental Trust Bonds, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer’s Certificate is less than the lesser of (A) $25,000 or (B) one percent of the Outstanding Amount of the Environmental Trust Bonds.
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(d) Whenever any property or securities are to be released from the Lien of this Indenture other than pursuant to Section 8.02(e), the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within ninety (90) days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(e) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of any signatory thereof as to the matters described in Section 10.01(d), the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities with respect thereto, or securities released from the Lien of this Indenture (other than pursuant to Section 8.02(e)) since the commencement of the then-current calendar year, as set forth in the certificates required by Section 10.01(d) and this Section 10.01(e), equals 10 percent or more of the Outstanding Amount of the Environmental Trust Bonds, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s Certificate is less than the lesser of (A) $25,000 or (B) one percent of the then Outstanding Amount of the Environmental Trust Bonds.
(f) Notwithstanding any other provision of this Section 10.01, the Indenture Trustee may (A) collect, liquidate, sell or otherwise dispose of the Environmental Control Property and the other Environmental Trust Bond Collateral as and to the extent permitted or required by the Basic Documents and (B) make cash payments out of the Collection Account as and to the extent permitted or required by the Basic Documents.
Section 10.02. Form of Documents Delivered to Indenture Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of a Responsible Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters (including financial and capital markets), upon a certificate or opinion of, or representations by, an officer or officers of the Servicer or the Issuer and other documents necessary and advisable in the judgment of counsel delivering such Opinion of Counsel.
Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer’s compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely conclusively upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 10.03. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing, and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 10.03.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient.
(c) The ownership of Environmental Trust Bonds shall be proved by the Environmental Trust Bond Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Environmental Trust Bonds shall bind the Holder of every Environmental Trust Bond issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Environmental Trust Bond.
Section 10.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies. Any notice, report or other communication given hereunder shall be in writing and shall be effective (i) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, (ii) upon receipt when sent by an overnight courier, (iii) on the date personally delivered to an authorized officer of the party to which sent or (iv) on the date transmitted by facsimile or other electronic transmission (including email) with a confirmation of receipt in all cases, addressed as follows:
(a) in the case of the Issuer, to WEPCo Environmental Trust Finance I, LLC, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2579, Email: [email protected];
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(b) in the case of the Indenture Trustee, to [•];
(c) in the case of Fitch, to Fitch Ratings, Inc., 300 West 57th Street, New York, New York 10019, Attention: ABS Surveillance, Telephone: (212) 908-0500, Facsimile: (212) 908-0355, Email [email protected] (all such notices to be delivered to Fitch in writing by email);
(d) in the case of S&P, to S&P Global Ratings, a division of S&P Global Inc., Structured Credit Surveillance, 55 Water Street, New York, New York 10041, Telephone: (212) 438-8991, Email: [email protected] (all such notices to be delivered to S&P in writing by email);
(e) in the case of Moody’s, to Moody’s Investor Services, Inc., ABS/RMBS Monitoring Department, 25th Floor, 7 World Trade Center, 250 Greenwich Street, New York, New York, Email: [email protected]; and
(f) in the case of the PSCW, to Public Service Commission of Wisconsin, 4822 Madison Yards Way, Madison, Wisconsin 53705, Telephone: (608) 266-5481.
Each Person listed above may, by notice given in accordance herewith to the other Person or Persons listed above, designate any further or different address to which subsequent notices, reports and other communications shall be sent
Section 10.05. Notices to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid to each Holder affected by such event, at such Holder’s address as it appears on the Environmental Trust Bond Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Indenture Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event of Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
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Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder and shall not under any circumstance constitute a Default or Event of Default.
Section 10.06. Rule 17g-5 Compliance. The Indenture Trustee agrees that any notice, report, request for satisfaction of the Rating Agency Condition, document or other information provided by the Indenture Trustee to any Rating Agency under this Indenture or any other Basic Document to which it is a party for the purpose of determining or confirming the credit rating of the Environmental Trust Bonds or undertaking credit rating surveillance of the Environmental Trust Bonds shall be provided, substantially concurrently, to the Servicer for posting on a password-protected website (the “17g-5 Website”). The Servicer shall be responsible for posting all of the information on the 17g-5 Website.
Section 10.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
The provisions of Sections 310 through 317 of the Trust Indenture Act that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
Section 10.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.09. Successors and Assigns. All covenants and agreements in this Indenture and the Environmental Trust Bonds by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors.
Section 10.10. Severability. Any provision in this Indenture or in the Environmental Trust Bonds that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remainder of such provision (if any) or the remaining provisions hereof (unless such construction shall be unreasonable), and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.11. Benefits of Indenture. Nothing in this Indenture or in the Environmental Trust Bonds, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders, and any other party secured hereunder, and any other Person with an ownership interest in any part of the Environmental Trust Bond Collateral, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 10.12. Legal Holidays. In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Environmental Trust Bonds or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date.
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Section 10.13. GOVERNING LAW. This Indenture shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the New York General Obligations Law and Sections 9-301 through 9-306 of the NY UCC), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws; provided, that the creation, attachment and perfection of any Liens created hereunder in Environmental Control Property, and all rights and remedies of the Indenture Trustee and the Holders with respect to the Environmental Control Property, shall be governed by the laws of the State of Wisconsin.
Section 10.14. Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The Issuer and Indenture Trustee agree that this Indenture may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Indenture are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Indenture may be made by facsimile, email or other electronic transmission. The Issuer agrees to assume all risks arising out of the use of digital signatures and electronic methods of submitting such signatures to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting upon documents with unauthorized signatures and the risk of interception and misuse by third parties.
Section 10.15. Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer and at its expense accompanied by an Opinion of Counsel at the Issuer’s cost and expense (which shall be external counsel of the Issuer) to the effect that such recording is necessary either for the protection of the Holders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.
Section 10.16. No Recourse to Issuer. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Environmental Trust Bonds or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (a) any owner of a membership interest in the Issuer (including Wisconsin Electric) or (b) any shareholder, partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee, the Managers or any owner of a membership interest in the Issuer (including Wisconsin Electric) in its respective individual capacity, or of any successor or assign of any of them in their respective individual or corporate capacities, except as any such Person may have expressly agreed in writing. Each Holder by accepting an Environmental Trust Bond specifically confirms the nonrecourse nature of these obligations, and waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Environmental Trust Bonds. Notwithstanding any provision of this Indenture or the Series Supplement to the contrary, Holders shall look only to the Environmental Trust Bond Collateral with respect to any amounts due to the Holders hereunder and under the Series Supplement and the Environmental Trust Bonds and, in the event such Environmental Trust Bond Collateral is insufficient to pay in full the amounts owed on the Environmental Trust Bonds, shall have no recourse against the Issuer in respect of such insufficiency. Each Holder by accepting an Environmental Trust Bond specifically confirms the nonrecourse nature of these obligations and waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Environmental Trust Bonds.
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Section 10.17. Basic Documents. The Indenture Trustee is hereby authorized to execute and deliver any other Basic Document that it is requested to acknowledge, including, upon receipt of an Issuer Request, an Intercreditor Agreement, so long as any such Intercreditor Agreement is substantially in the form of Exhibit D hereto, with such changes as may be agreed among the parties thereto so long as such changes do not materially and adversely affect any Holder’s rights in and to any Environmental Trust Bond Collateral or otherwise hereunder. Such request shall be accompanied by an Opinion of Counsel, upon which the Indenture Trustee may rely conclusively with no duty of independent investigation or inquiry, to the effect that all conditions precedent for the execution of an Intercreditor Agreement have been satisfied. Any Intercreditor Agreement shall be binding on the Holders.
Section 10.18. No Petition. The Indenture Trustee, by entering into this Indenture, and each Holder, by accepting an Environmental Trust Bond (or interest therein) issued hereunder, hereby covenant and agree that they shall not, prior to the date which is one year and one day after the termination of this Indenture, acquiesce, petition or otherwise invoke or cause the Issuer or any Manager to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuer under any bankruptcy or insolvency law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property, or ordering the dissolution, winding up or liquidation of the affairs of the Issuer. Nothing in this Section 10.18 shall preclude, or be deemed to estop, such Holder or the Indenture Trustee (a) from taking or omitting to take any action prior to such date in (i) any case or proceeding voluntarily filed or commenced by or on behalf of the Issuer under or pursuant to any such law or (ii) any involuntary case or proceeding pertaining to the Issuer which is filed or commenced by or on behalf of a Person other than such Holder and is not joined in by such Holder (or any Person to which such Holder shall have assigned, transferred or otherwise conveyed any part of the obligations of the Issuer hereunder) under or pursuant to any such law or (b) from commencing or prosecuting any legal action which is not an involuntary case or proceeding under or pursuant to any such law against the Issuer or any of its properties.
Section 10.19. Securities Intermediary. The Securities Intermediary, in acting under this Indenture, is entitled to all rights, benefits, protections, immunities and indemnities accorded to U.S. Bank National Association, in its capacity as Indenture Trustee under this Indenture.
{SIGNATURE PAGE FOLLOWS}
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IN WITNESS WHEREOF, the Issuer, the Indenture Trustee and the Securities Intermediary have caused this Indenture to be duly executed by their respective officers thereunto duly authorized and duly attested, all as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | |||
| as Issuer | |||
| By: | /s/ Scott J. Lauber | ||
| Name: | Scott J. Lauber | ||
| Title: | President | ||
| U.S. BANK NATIONAL ASSOCIATION, | |||
| as Indenture Trustee and as Securities Intermediary | |||
| By: | /s/ Nicholas Xeros | ||
| Name: | Nicholas Xeros | ||
| Title: | Assistant Vice President | ||
Signature Page to
Indenture
EXHIBIT A
FORM OF ENVIRONMENTAL TRUST BOND
See attached.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
| No. { } | ${ } |
| Tranche Designation { }1 | CUSIP No.: { } |
THE PRINCIPAL OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND, SERIES 2021 (THIS “TRANCHE { } ENVIRONMENTAL TRUST BOND”) WILL BE PAID IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THE HOLDER OF THIS ENVIRONMENTAL TRUST BOND HAS NO RECOURSE TO THE ISSUER HEREOF AND AGREES TO LOOK ONLY TO THE ENVIRONMENTAL TRUST BOND COLLATERAL, AS DESCRIBED IN THE INDENTURE, FOR PAYMENT OF ANY AMOUNTS DUE HEREUNDER. ALL OBLIGATIONS OF THE ISSUER OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND UNDER THE TERMS OF THE INDENTURE WILL BE RELEASED AND DISCHARGED UPON PAYMENT IN FULL HEREOF OR AS OTHERWISE PROVIDED IN SECTION 3.10(b) OR ARTICLE IV OF THE INDENTURE. THE HOLDER OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND HEREBY COVENANTS AND AGREES THAT PRIOR TO THE DATE WHICH IS ONE (1) YEAR AND ONE (1) DAY AFTER THE PAYMENT IN FULL OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND, IT WILL NOT INSTITUTE AGAINST, OR JOIN ANY OTHER PERSON IN INSTITUTING AGAINST, THE ISSUER ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS OR OTHER SIMILAR PROCEEDING UNDER THE LAWS OF THE UNITED STATES OR ANY STATE OF THE UNITED STATES. NOTHING IN THIS PARAGRAPH SHALL PRECLUDE, OR BE DEEMED TO ESTOP, SUCH HOLDER (A) FROM TAKING OR OMITTING TO TAKE ANY ACTION PRIOR TO SUCH DATE IN (I) ANY CASE OR PROCEEDING VOLUNTARILY FILED OR COMMENCED BY OR ON BEHALF OF THE ISSUER UNDER OR PURSUANT TO ANY SUCH LAW OR (II) ANY INVOLUNTARY CASE OR PROCEEDING PERTAINING TO THE ISSUER WHICH IS FILED OR COMMENCED BY OR ON BEHALF OF A PERSON OTHER THAN SUCH HOLDER AND IS NOT JOINED IN BY SUCH HOLDER (OR ANY PERSON TO WHICH SUCH HOLDER SHALL HAVE ASSIGNED, TRANSFERRED OR OTHERWISE CONVEYED ANY PART OF THE OBLIGATIONS OF THE ISSUER HEREUNDER) UNDER OR PURSUANT TO ANY SUCH LAW OR (B) FROM COMMENCING OR PROSECUTING ANY LEGAL ACTION WHICH IS NOT AN INVOLUNTARY CASE OR PROCEEDING UNDER OR PURSUANT TO ANY SUCH LAW AGAINST THE ISSUER OR ANY OF ITS PROPERTIES.
1 The Bonds may be issued in a single tranche or with more than one tranche. If the Bonds are issued in a single tranche, the single tranche will be designated Tranche A.
THE STATE OF WISCONSIN IS NOT LIABLE ON THIS TRANCHE { } ENVIRONMENTAL TRUST BOND AND THIS TRANCHE { } ENVIRONMENTAL TRUST BOND IS NOT A DEBT OF THE STATE OF WISCONSIN. THE ISSUANCE OF THIS ENVIRONMENTAL TRUST BOND DOES NOT, DIRECTLY OR INDIRECTLY OR CONTINGENTLY, OBLIGATE THE STATE OF WISCONSIN OR A POLITICAL SUBDIVISION OF THE STATE OF WISCONSIN TO LEVY ANY TAX OR MAKE ANY APPROPRIATION FOR PAYMENT OF THIS TRANCHE { } ENVIRONMENTAL TRUST BOND.
WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC
ENVIRONMENTAL TRUST BONDS, SERIES 2021, TRANCHE { }
| ENVIRONMENTAL TRUST BOND INTEREST RATE |
ORIGINAL PRINCIPAL AMOUNT |
SCHEDULED FINAL PAYMENT DATE |
FINAL MATURITY DATE |
||||
| { } | % | $ | { } | { }, 20{ } | { }, 20{ } | ||
WEPCo Environmental Trust Finance I, LLC, a limited liability company created under the laws of the State of Delaware (herein referred to as the “Issuer”), for value received, hereby promises to pay to { }, or registered assigns, the Original Principal Amount shown above in semi-annual installments on the Payment Dates and in the amounts specified below or, if less, the amounts determined pursuant to Section 8.02 of the Indenture, in each year, commencing on the date determined as provided below and ending on or before the Final Maturity Date shown above and to pay interest, at the Environmental Trust Bond Interest Rate shown above, on each { } and { } or, if any such day is not a Business Day, the next succeeding Business Day, commencing on { }, 2021 and continuing until the earlier of the payment in full of the principal hereof and the Final Maturity Date (each, a “Payment Date”), on the principal amount of this Tranche { } Environmental Trust Bond. Interest on this Tranche { } Environmental Trust Bond will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, if no interest has yet been paid, from the date of issuance. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such principal of and interest on this Tranche { } Environmental Trust Bond shall be paid in the manner specified below.
The principal of and interest on this Tranche { } Environmental Trust Bond are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Tranche { } Environmental Trust Bond shall be applied first to interest due and payable on this Tranche { } Environmental Trust Bond as provided above and then to the unpaid principal of and premium, if any, on this Tranche { } Environmental Trust Bond, all in the manner set forth in the Indenture.
Reference is made to the further provisions of this Tranche { } Environmental Trust Bond set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Tranche { } Environmental Trust Bond.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Tranche { } Environmental Trust Bond shall not be entitled to any benefit under the Indenture referred to below or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Responsible Officer.
| Date: { }, 20{ } | WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | ||
| as Issuer | |||
| By: | |||
| Name: | [ ] | ||
| Title: | [ ] | ||
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
Dated: { }, 20{ }
This is one of the Tranche { } Environmental Trust Bonds, Series 2021, designated above and referred to in the within-mentioned Indenture.
| U.S. BANK NATIONAL ASSOCIATION, | |||
| as Indenture Trustee | |||
| By: | |||
| Name: | [ ] | ||
| Title: | [ ] | ||
This Tranche { } Environmental Trust Bond, Series 2021 is one of a duly authorized issue of Environmental Trust Bonds, Series 2021 of the Issuer (herein called the “Environmental Trust Bonds”), which Bonds are [issuable in one or more Tranches. The Environmental Trust Bonds consist of { } Tranches,]2 including this Tranche { } Environmental Trust Bond, Series 2021 (herein called the “Tranche { } Environmental Trust Bonds”), all issued and to be issued under that certain Indenture dated as of May 12, 2021 (as supplemented by the Series Supplement (as defined below), the “Indenture”), between the Issuer and U.S. Bank National Association, in its capacity as indenture trustee (the “Indenture Trustee”, which term includes any successor indenture trustee under the Indenture) and in its separate capacity as a securities intermediary (the “Securities Intermediary”, which term includes any successor securities intermediary under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Environmental Trust Bonds. For purposes herein, “Series Supplement” means that certain Series Supplement dated as of [______], 2021 between the Issuer and the Indenture Trustee. All terms used in this Tranche { } Environmental Trust Bond that are defined in the Indenture, as amended, restated, supplemented or otherwise modified from time to time, shall have the meanings assigned to such terms in the Indenture.
All [Tranches]3 of the Environmental Trust Bonds are and will be equally and ratably secured by the Environmental Trust Bond Collateral pledged as security therefor as provided in the Indenture.
The principal of this Tranche { } Environmental Trust Bond shall be payable on each Payment Date only to the extent that amounts in the Collection Account are available therefor, and only until the outstanding principal balance thereof on the preceding Payment Date (after giving effect to all payments of principal, if any, made on the preceding Payment Date) has been reduced to the principal balance specified in the Expected Amortization Schedule which is attached to the Series Supplement as Schedule A, unless payable earlier because an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds have declared the Environmental Trust Bonds to be immediately due and payable in accordance with Section 5.02 of the Indenture (unless such declaration shall have been rescinded and annulled in accordance with Section 5.02 of the Indenture). However, actual principal payments may be made in lesser than expected amounts and at later than expected times as determined pursuant to Section 8.02 of the Indenture. The entire unpaid principal amount of this Tranche { } Environmental Trust Bond shall be due and payable on the Final Maturity Date hereof. Notwithstanding the foregoing, the entire unpaid principal amount of the Environmental Trust Bonds shall be due and payable, if not then previously paid, on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of the Environmental Trust Bonds representing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds have declared the Environmental Trust Bonds to be immediately due and payable in the manner provided in Section 5.02 of the Indenture (unless such declaration shall have been rescinded and annulled in accordance with Section 5.02 of the Indenture). All principal payments on the Tranche { } Environmental Trust Bonds shall be made pro rata to the Holders of the Tranche { } Environmental Trust Bonds entitled thereto based on the respective principal amounts of the Tranche { } Environmental Trust Bonds held by them.
2 If the Bonds are issued in a single Tranche, this bracketed language will be replaced with the following: “being issued in a single Tranche,”
3 To be deleted if the Bonds are issued in a single Tranche.
Payments of interest on this Tranche { } Environmental Trust Bond due and payable on each Payment Date, together with the installment of principal or premium, if any, shall be made by check mailed first-class, postage prepaid, to the Person whose name appears as the Registered Holder of this Tranche { } Environmental Trust Bond (or one or more Predecessor Environmental Trust Bonds) on the Environmental Trust Bond Register as of the close of business on the Record Date or in such other manner as may be provided in the Indenture or the Series Supplement, except that (a) upon application to the Indenture Trustee by any Holder owning a Global Environmental Trust Bond evidencing this Tranche { } Environmental Trust Bond not later than the applicable Record Date, payment will be made by wire transfer to an account maintained by such Holder, and (b) if this Tranche { } Environmental Trust Bond is held in Book-Entry Form, payments will be made by wire transfer in immediately available funds to the account designated by the Holder of the applicable Global Environmental Trust Bond evidencing this Tranche { } Environmental Trust Bond unless and until such Global Environmental Trust Bond is exchanged for Definitive Environmental Trust Bonds (in which event payments shall be made as provided above) and except for the final installment of principal and premium, if any, payable with respect to this Tranche { } Environmental Trust Bond on a Payment Date, which shall be payable as provided below. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Environmental Trust Bond Register as of the applicable Record Date without requiring that this Tranche { } Environmental Trust Bond be submitted for notation of payment. Any reduction in the principal amount of this Tranche { } Environmental Trust Bond (or any one or more Predecessor Environmental Trust Bonds) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Tranche { } Environmental Trust Bond and of any Tranche { } Environmental Trust Bond issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then-remaining unpaid principal amount of this Tranche { } Environmental Trust Bond on a Payment Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Payment Date by notice mailed no later than five (5) days prior to such final Payment Date and shall specify that such final installment will be payable only upon presentation and surrender of this Tranche { } Environmental Trust Bond and shall specify the place where this Tranche { } Environmental Trust Bond may be presented and surrendered for payment of such installment.
The Issuer shall pay interest on overdue installments of interest at the Environmental Trust Bond Interest Rate to the extent lawful.
This Tranche { } Environmental Trust Bond is an “environmental trust bond” as such term is defined in the Statute. Principal and interest due and payable on this Tranche { } Environmental Trust Bond are payable from and secured primarily by Environmental Control Property created and established by the Financing Order obtained from the Public Service Commission of Wisconsin pursuant to the Statute. Environmental Control Property consists of the rights and interests of the Seller in the Financing Order, including the right to impose, collect and receive Environmental Control Charges as provided in the Financing Order, the right to obtain True-Up Adjustments of the Environmental Control Charges as provided in the Financing Order and the Statute, and all revenues or other proceeds arising from those rights and interests.
Under the laws of the State of Wisconsin in effect on the Closing Date, pursuant to Section 196.027(8) of the Statute, the State of Wisconsin has pledged to and agreed with Holders of the Environmental Trust Bonds that the State of Wisconsin will not do any of the following: (i) take or permit any action that impairs the value of the Environmental Control Property; or (ii) except as allowed under the Statute, reduce, alter or impair the Environmental Control Charges that are imposed, collected, and remitted for the benefit of Holders of the Environmental Trust Bonds until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with the Environmental Trust Bonds held by the Holders are paid or performed in full.
The Issuer hereby acknowledges that the purchase of this Tranche { } Environmental Trust Bond by the Holder hereof or the purchase of any beneficial interest herein by any Person are made in reliance on the foregoing pledge.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Tranche { } Environmental Trust Bond may be registered on the Environmental Trust Bond Register upon surrender of this Tranche { } Environmental Trust Bond for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by, (a) a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other signature guaranty program acceptable to the Indenture Trustee, and (b) such other documents as the Indenture Trustee may require, and thereupon one or more new Tranche { } Environmental Trust Bonds of Minimum Denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Tranche { } Environmental Trust Bond, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange, other than exchanges pursuant to Section 2.04 or Section 2.06 of the Indenture not involving any transfer.
Each Holder, by acceptance of a Tranche { } Environmental Trust Bond, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Tranche { } Environmental Trust Bonds or under the Indenture or any certificate or other writing delivered in connection therewith, against (a) any owner of a membership interest in the Issuer (including Wisconsin Electric Power Company) or (b) any shareholder, partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee, the Managers or any owner of a membership interest in the Issuer (including Wisconsin Electric Power Company) in its respective individual or corporate capacities, or of any successor or assign of any of them in their individual or corporate capacities, except as any such Person may have expressly agreed in writing. Each Holder by accepting a Tranche { } Environmental Trust Bond specifically confirms the nonrecourse nature of these obligations and waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Tranche { } Environmental Trust Bonds.
Prior to the due presentment for registration of transfer of this Tranche { } Environmental Trust Bond, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Tranche { } Environmental Trust Bond is registered (as of the day of determination) as the owner hereof for the purpose of receiving payments of principal of and premium, if any, and interest on this Tranche { } Environmental Trust Bond and for all other purposes whatsoever, whether or not this Tranche { } Environmental Trust Bond be overdue, and none of the Issuer, the Indenture Trustee or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Environmental Trust Bonds under the Indenture at any time by the Issuer with the consent of the Holders representing not less than a majority of the Outstanding Amount of all Environmental Trust Bonds at the time outstanding of each Tranche to be affected. The Indenture also contains provisions permitting the Holders representing specified percentages of the Outstanding Amount of the Environmental Trust Bonds, on behalf of the Holders of all the Environmental Trust Bonds, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Tranche { } Environmental Trust Bond (or any one of more Predecessor Environmental Trust Bonds) shall be conclusive and binding upon such Holder and upon all future Holders of this Tranche { } Environmental Trust Bond and of any Tranche { } Environmental Trust Bond issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Tranche { } Environmental Trust Bond. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Environmental Trust Bonds issued thereunder.
The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Issuer on this Tranche { } Environmental Trust Bond and (b) certain restrictive covenants and the related Events of Default, upon compliance by the Issuer with certain conditions set forth in the Indenture, which provisions apply to this Tranche { } Environmental Trust Bond.
The term “Issuer” as used in this Tranche { } Environmental Trust Bond includes any successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders under the Indenture.
The Tranche { } Environmental Trust Bonds are issuable only in registered form in denominations as provided in the Indenture and the Series Supplement subject to certain limitations therein set forth.
This TRANCHE { } Environmental Trust Bond, the Indenture and the Series Supplement shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the New York General Obligations Law and Sections 9-301 through 9-306 of the NY UCC), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws; provided, that the creation, attachment and perfection of any Liens created under the Indenture in Environmental Control Property, and all rights and remedies of the Indenture Trustee and the Holders with respect to the Environmental Control Property, shall be governed by the laws of the State of Wisconsin.
No reference herein to the Indenture and no provision of this Tranche { } Environmental Trust Bond or of the Indenture shall alter or impair the obligation, which is absolute and unconditional, to pay the principal of and interest on this Tranche { } Environmental Trust Bond at the times, place and rate and in the coin or currency herein prescribed.
The Issuer and the Indenture Trustee, by entering into the Indenture, and the Holders and any Persons holding a beneficial interest in any Tranche { } Environmental Trust Bond, by acquiring any Tranche { } Environmental Trust Bond or interest therein, (a) express their intention that, solely for the purpose of U.S. federal taxes and, to the extent consistent with applicable state, local and other tax law, solely for the purpose of state, local and other taxes, the Tranche { } Environmental Trust Bonds qualify under applicable tax law as indebtedness of the sole owner of the Issuer secured by the Environmental Trust Bond Collateral and (b) solely for purposes of U.S. federal taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Tranche { } Environmental Trust Bonds are outstanding, agree to treat the Tranche { } Environmental Trust Bonds as indebtedness of the sole owner of the Issuer secured by the Environmental Trust Bond Collateral unless otherwise required by appropriate taxing authorities.
ABBREVIATIONS
The following abbreviations, when used above on this Tranche { } Environmental Trust Bond, shall be construed as though they were written out in full according to applicable laws or regulations.
| TEN COM | as tenants in common | |
| TEN ENT | as tenants by the entireties | |
| JT TEN | as joint tenants with right of survivorship and not as tenants in common | |
| UNIF GIFT MIN ACT |
(Custodian) | |
| Custodian (minor) | ||
| Under Uniform Gifts to Minor Act ( ) | ||
| (State) |
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
| (name and address of assignee) |
the within Tranche { } Environmental Trust Bond and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to transfer said Tranche { } Environmental Trust Bond on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: | |||
| Signature Guaranteed: | |||
The signature to this assignment must correspond with the name of the registered owner as it appears on the within Tranche { } Environmental Trust Bond in every particular, without alteration, enlargement or any change whatsoever.
NOTE: Signature(s) must be guaranteed by an institution that is a member of: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other signature guaranty program acceptable to the Indenture Trustee.
EXHIBIT B
FORM OF SERIES SUPPLEMENT
See attached.
This SERIES SUPPLEMENT, dated as of [________], 2021 (this “Supplement”), by and between WEPCo Environmental Trust Finance I, LLC, a limited liability company created under the laws of the State of Delaware (the “Issuer”), and U.S. Bank National Association (“Bank”), not in its individual capacity, but solely in its capacity as indenture trustee (the “Indenture Trustee”) for the benefit of the Secured Parties under the Indenture dated as of [________], 2021, by and between the Issuer and Bank, in its capacity as Indenture Trustee and in its separate capacity as a securities intermediary (the “Indenture”).
PRELIMINARY STATEMENT
Section 9.01 of the Indenture provides, among other things, that the Issuer and the Indenture Trustee may at any time enter into an indenture supplemental to the Indenture for the purposes of authorizing the issuance by the Issuer of the Environmental Trust Bonds and specifying the terms thereof. The Issuer has duly authorized the creation of the Environmental Trust Bonds with an initial aggregate principal amount of ${ } to be known as “Environmental Trust Bonds, Series 2021” (the “Environmental Trust Bonds”), and the Issuer and the Indenture Trustee are executing and delivering this Supplement in order to provide for the Environmental Trust Bonds.
All terms used in this Supplement that are defined in the Indenture, either directly or by reference therein, have the meanings assigned to them therein, except to the extent such terms are defined or modified in this Supplement or the context clearly requires otherwise. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Indenture, the terms and provisions of this Supplement shall govern.
GRANTING CLAUSE
With respect to the Environmental Trust Bonds, the Issuer hereby Grants to the Indenture Trustee, as Indenture Trustee for the benefit of the Secured Parties of the Environmental Trust Bonds, all of the Issuer’s right, title and interest (whether now owned or hereafter acquired or arising) in and to (a) the Environmental Control Property created under and pursuant to the Financing Order and the Statute, and transferred by the Seller to the Issuer pursuant to the Sale Agreement (including, to the fullest extent permitted by law, the right to impose, collect and receive Environmental Control Charges as provided in the Financing Order, the right to obtain True-Up Adjustments of the Environmental Control Charges as provided in the Financing Order and the Statute, and all revenues or other proceeds arising from those rights and interests), (b) all Environmental Control Charges related to the Environmental Control Property, (c) the Sale Agreement and the Bill of Sale executed in connection therewith and all property and interests in property transferred under the Sale Agreement and the Bill of Sale with respect to the Environmental Control Property and the Environmental Trust Bonds, (d) the Servicing Agreement, the Administration Agreement, any Intercreditor Agreement and any subservicing, agency, intercreditor, administration or collection agreements executed in connection therewith, to the extent related to the foregoing Environmental Control Property and the Environmental Trust Bonds, (e) the Collection Account, all subaccounts thereof and all amounts of cash, instruments, investment property or other assets on deposit therein or credited thereto from time to time and all financial assets and securities entitlements carried therein or credited thereto, (f) all rights to compel the Servicer to file for and obtain adjustments to the Environmental Control Charges in accordance with the Statute, the Financing Order or any Tariff filed in connection therewith, (g) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing, whether such claims, demands, causes and choses in action constitute Environmental Control Property, accounts, general intangibles, instruments, contract rights, chattel paper or proceeds of such items or any other form of property, (h) all accounts, chattel paper, deposit accounts, documents, general intangibles, goods, instruments, investment property, letters of credit, letters-of-credit rights, money, commercial tort claims and supporting obligations related to the foregoing, and (i) all payments on or under, and all proceeds in respect of, any or all of the foregoing, it being understood that the following do not constitute Environmental Trust Bond Collateral: (x) cash that has been released pursuant to the terms of the Indenture, including Section 8.02(e)(x) of the Indenture and, following retirement of all Outstanding Environmental Trust Bonds, pursuant to Section 8.02(e)(xii) of the Indenture, or (y) amounts deposited with the Issuer on the Closing Date, for payment of costs of issuance with respect to the Environmental Trust Bonds (together with any interest earnings thereon), it being understood that such amounts described in clause (x) and clause (y) above shall not be subject to Section 3.17 of the Indenture.
The foregoing Grant is made in trust to secure the payment of principal of and premium, if any, interest on, and any other amounts owing in respect of, the Environmental Trust Bonds and all fees, expenses, counsel fees and other amounts due and payable to the Indenture Trustee equally and ratably without prejudice, priority or distinction, except as expressly provided in the Indenture, to secure compliance with the provisions of the Indenture with respect to the Environmental Trust Bonds, all as provided in the Indenture and to secure the performance by the Issuer of all of its obligations under the Indenture (collectively, the “Secured Obligations”). The Indenture and this Supplement constitute a security agreement within the meaning of the Statute and under the UCC to the extent that the provisions of the UCC are applicable hereto. The foregoing Grant with respect to the Environmental Control Property created pursuant to the Financing Order is made in accordance with the requirements of Section 196.027(5)(b) of the Statute.
The Indenture Trustee, as indenture trustee on behalf of the Secured Parties of the Environmental Trust Bonds, acknowledges such Grant and accepts the trusts under this Supplement and the Indenture in accordance with the provisions of this Supplement and the Indenture.
SECTION 1. Designation. The Environmental Trust Bonds shall be designated generally as the Environmental Trust Bonds, Series 2021, [and further denominated as Tranches { } through { }}].4
SECTION 2. Initial Principal Amount; Environmental Trust Bond Interest Rate; Scheduled Final Payment Date; Final Maturity Date. The Environmental Trust Bonds [of each Tranche] shall have the initial principal amount, bear interest at the rate per annum (the “Environmental Trust Bond Interest Rate”) and shall have the Scheduled Final Payment Date and the Final Maturity Date set forth below:
4 The bonds may be issued in a single tranche or may be issued with more than one tranche. If the bonds are issued in a single tranche, the bracketed language will be replaced with the following: “issued in a single Tranche designated as Tranche A.”
| Tranche | Initial Principal Amount | Environmental Trust Bond | Scheduled Final Payment Date |
Final Maturity Date | ||||||
| { } | $ | { } | { } | % | { }, 20{ } | { }, 20{ } | ||||
| { } | $ | { } | { } | % | { }, 20{ } | { }, 20{ } | ||||
| { } | $ | { } | { } | % | { }, 20{ } | { }, 20{ } | ||||
| { } | $ | { } | { } | % | { }, 20{ } | { }, 20{ } | ||||
| { } | $ | { } | { } | % | { }, 20{ } | { }, 20{ } | ||||
The Environmental Trust Bond Interest Rate shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3. Authentication Date; Payment Dates; Expected Amortization Schedule for Principal; Periodic Interest; Book-Entry Environmental Trust Bonds; Waterfall Caps.
(a) Authentication Date. The Environmental Trust Bonds that are authenticated and delivered by the Indenture Trustee to or upon the order of the Issuer on [_____], 2021 (the “Closing Date”) shall have as their date of authentication [______], 2021.
(b) Payment Dates. The “Payment Dates” for the Environmental Trust Bonds are { } and { } of each year or, if any such date is not a Business Day, the next succeeding Business Day, commencing on { }, 2021 (the “Initial Payment Date”) and continuing until the earlier of repayment of the Environmental Trust Bonds in full and the Final Maturity Date.
(c) Expected Amortization Schedule for Principal. Unless an Event of Default shall have occurred and be continuing, on each Payment Date, the Indenture Trustee shall distribute to the Holders of record as of the related Record Date amounts payable pursuant to Section 8.02(e) of the Indenture as principal[, in the following order and priority: {(1) to the Holders of the Tranche {A-1} Environmental Trust Bonds, until the Outstanding Amount of such Tranche {A-1} Environmental Trust Bonds thereof has been reduced to zero; (2) to the Holders of the Tranche {A-2}Environmental Trust Bonds, until the Outstanding Amount of such Tranche {A-2} Environmental Trust Bonds thereof has been reduced to zero; (3) to the Holders of the Tranche {A-3} Environmental Trust Bonds, until the Outstanding Amount of such Tranche {A-3} of Environmental Trust Bonds thereof has been reduced to zero; (4) to the Holders of the Tranche {A-4} Environmental Trust Bonds, until the Outstanding Amount of such Tranche {A-4} Environmental Trust Bonds thereof has been reduced to zero; and (5) to the Holders of the Tranche {A-5} Environmental Trust Bonds, until the Outstanding Amount of such Tranche {A-5} Environmental Trust Bonds thereof has been reduced to zero]5; provided, however, that in no event shall a principal payment pursuant to this Section 3(c) on [any Tranche]5 the Environmental Trust Bonds on a Payment Date be greater than the amount necessary to reduce the Outstanding Amount of the Environmental Trust Bonds to the amount specified in the Expected Amortization Schedule which is attached as Schedule A hereto [for such Tranche]6 and Payment Date.
5 Bracketed text will be removed if the bonds are issued in a single tranche.
(d) Periodic Interest. “Periodic Interest” will be payable on [each Tranche of]6 the Environmental Trust Bonds on each Payment Date in an amount equal to one-half of the product of (i) the applicable Environmental Trust Bond Interest Rate and (ii) the Outstanding Amount of the [related Tranche of]6 Environmental Trust Bonds as of the close of business on the preceding Payment Date after giving effect to all payments of principal made to the Holders of the [related Tranche of]6 Environmental Trust Bonds on such preceding Payment Date; provided, however, that, with respect to the Initial Payment Date, or if no payment has yet been made, interest on the outstanding principal balance will accrue from and including the Closing Date to, but excluding, the following Payment Date.
(e) Book-Entry Environmental Trust Bonds. The Environmental Trust Bonds shall be Book-Entry Environmental Trust Bonds, and the applicable provisions of Section 2.11 of the Indenture shall apply to the Environmental Trust Bonds.
(f) Waterfall Caps. The amount payable with respect to the Environmental Trust Bonds pursuant to Section 8.02(e)(i) of the Indenture shall not exceed $50,000 with respect to any Payment Date.
SECTION 4. Minimum Denominations. The Environmental Trust Bonds shall be issuable in denominations of $100,000 and integral multiples of $1,000 in excess thereof, except for one bond, which may be a smaller denomination (the “Minimum Denominations”).
SECTION 5. Delivery and Payment for the Environmental Trust Bonds; Form of the Environmental Trust Bonds. The Indenture Trustee shall deliver the Environmental Trust Bonds to the Issuer when authenticated in accordance with Section 2.03 of the Indenture. The Environmental Trust Bonds [of each Tranche]6 shall be in the form of Exhibit[s]6 [___] hereto.
SECTION 6. Ratification of Indenture. As supplemented by this Supplement, the Indenture is in all respects ratified and confirmed and the Indenture, as so supplemented by this Supplement, shall be read, taken and construed as one and the same instrument. This Supplement amends, modifies and supplements the Indenture only insofar as it relates to the Environmental Trust Bonds.
SECTION 7. Counterparts. This Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The Issuer and Indenture Trustee agree that this Supplement may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Supplement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Supplement may be made by facsimile, email or other electronic transmission. The Issuer agrees to assume all risks arising out of the use of digital signatures and electronic methods of submitting such signatures to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting upon documents with unauthorized signatures and the risk of interception and misuse by third parties.
SECTION 8. Governing Law. This Supplement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the New York General Obligations Law and Sections 9-301 through 9-306 of the NY UCC), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws; provided, that, except as set forth in Section 8.02(b) of the Indenture, the creation, attachment and perfection of any Liens created under the Indenture in Environmental Control Property, and all rights and remedies of the Indenture Trustee and the Holders with respect to the Environmental Control Property, shall be governed by the laws of the State of Wisconsin.
SECTION 9. Issuer Obligation. No recourse may be taken directly or indirectly by the Holders with respect to the obligations of the Issuer on the Environmental Trust Bonds, under the Indenture or this Supplement or any certificate or other writing delivered in connection herewith or therewith, against (a) any owner of a beneficial interest in the Issuer (including Wisconsin Electric Power Company) or (b) any shareholder, partner, owner, beneficiary, officer, director, employee or agent of the Indenture Trustee, the Managers or any owner of a beneficial interest in the Issuer (including Wisconsin Electric Power Company) in its individual capacity, or of any successor or assign of any of them in their respective individual or corporate capacities, except as any such Person may have expressly agreed. Each Holder by accepting an Environmental Trust Bond specifically confirms the nonrecourse nature of these obligations and waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Environmental Trust Bonds.
SECTION 10. Indenture Trustee Disclaimer. The Indenture Trustee is not responsible for the validity or sufficiency of this Supplement or for the recitals contained herein.
6 Bracketed text will be removed if the bonds are issued in a single tranche.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Supplement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | |||
| as Issuer | |||
| By: | |||
| Name: | [ ] | ||
| Title: | [ ] | ||
| U.S. BANK NATIONAL ASSOCIATION, | |||
| not in its individual capacity, but solely in its capacity | |||
| as Indenture Trustee | |||
| By: | |||
| Name: | [ ] | ||
| Title: | [ ] | ||
SCHEDULE A
TO SERIES SUPPLEMENT
EXPECTED AMORTIZATION SCHEDULE
OUTSTANDING PRINCIPAL BALANCE
| Date | Tranche { } | Tranche { } | Tranche { } | Tranche { } | Tranche { } | ||||||||||
| Closing Date | $ | { } | $ | { } | $ | { } | $ | { } | $ | { } | |||||
| { }, 20{ } | $ | { } | $ | { } | $ | { } | $ | { } | $ | { } | |||||
| { }, 20{ } | $ | { } | $ | { } | $ | { } | $ | { } | $ | { } | |||||
| { }, 20{ } | $ | { } | $ | { } | $ | { } | $ | { } | $ | { } | |||||
EXHIBIT { }
TO SERIES SUPPLEMENT
FORM OF TRANCHE { } ENVIRONMENTAL TRUST BONDS
EXHIBIT C
SERVICING CRITERIA TO BE ADDRESSED
BY INDENTURE TRUSTEE IN ASSESSMENT OF COMPLIANCE
| Regulation AB Reference |
Servicing Criteria | Applicable Indenture Trustee Responsibility | ||
| General Servicing Considerations | ||||
| 1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | |||
| 1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. | |||
| 1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for the pool assets are maintained. | |||
| 1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | |||
| 1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. | |||
| Cash Collection and Administration | ||||
| 1122(d)(2)(i) | Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | X | ||
| 1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | X | ||
| 1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | |||
| 1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | X | ||
| 1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) under the Exchange Act. | X | ||
| 1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | |||
| 1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are: (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. |
C-1
| Investor Remittances and Reporting | ||||
| 1122(d)(3)(i) | Reports to investors, including those to be filed with the SEC, are maintained in accordance with the transaction agreements and applicable SEC requirements. Specifically, such reports: (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the SEC as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the servicer. | |||
| 1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | X | ||
| 1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the servicer’s investor records, or such other number of days specified in the transaction agreements. | X |
C-2
| Regulation AB Reference |
Servicing Criteria | Applicable Indenture Trustee Responsibility | ||
| 1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | X | ||
| Pool Asset Administration | ||||
| 1122(d)(4)(i) | Collateral or security on pool assets is maintained as required by the transaction agreements or related pool asset documents. | |||
| 1122(d)(4)(ii) | Pool assets and related documents are safeguarded as required by the transaction agreements. | |||
| 1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | |||
| 1122(d)(4)(iv) | Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related pool asset documents. | |||
| 1122(d)(4)(v) | The servicer’s records regarding the pool assets agree with the servicer’s records with respect to an obligor’s unpaid principal balance. | |||
| 1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s pool assets (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | |||
| 1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | |||
| 1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent pool assets, including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | |||
| 1122(d)(4)(ix) | Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents. | |||
| 1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s pool asset documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable pool asset documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related pool assets, or such other number of days specified in the transaction agreements. |
C-3
| 1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | |||
| 1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | |||
| 1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | |||
| 1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | |||
| 1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. |
C-4
EXHIBIT D
FORM OF INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this “Agreement”) is made as of [date], by and among:
(a) Wisconsin Electric Power Company (in its individual capacity, the “Company”);
(b) [Wisconsin Electric Power Company, in its separate capacity as the Receivables Servicer (as defined below);]7
(c) Wisconsin Electric Power Company, in its separate capacity as the initial servicer of, and collection agent with respect to, the Initial Customer Property (as defined below) (including any successor in such capacity, the “Initial Property Servicer”);
(d) [Wisconsin Electric Power Company, in its separate capacity as the initial servicer of, and collection agent with respect to, the Additional Customer Property (as defined below) (including any successor in such capacity, the “Additional Property Servicer”);]8
(e) WEPCo Environmental Trust Finance I, LLC, a Delaware limited liability company (the “Initial Bond Issuer”);
(f) [TRUSTEE], not in its individual capacity, but solely in its capacity as indenture trustee (including any successor in such capacity, the “Initial Bond Trustee”) under the Initial Indenture (as defined below);
(g) [[insert name of affiliated purchaser of Receivables] (“Buyer”), a [ ] corporation;]1
(h) [[insert name of agent or collateral agent or collateral trustee acting as representative of third-party receivables purchasers or lenders], as [Administrative Agent][Collateral Agent][Collateral Trustee] (in such capacity, and including any successor agent, the “Administrative Agent”) for the [Receivables Purchasers][Lenders] referred to below;]1
(i) [[SPE II], a [_____________] (the “Additional Bond Issuer”);]2 and
(j) [[TRUSTEE], not in its individual capacity, but solely in its capacity as indenture trustee (including any successor in such capacity, the “Additional Bond Trustee”) under the Additional Indenture (as defined below).]2
[WHEREAS, pursuant to the terms of that certain [describe purchase agreement whereby Buyer acquires Receivables from Company] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “Purchase Agreement”), between Buyer and the Company, the Company has sold and may hereafter sell to Buyer all of the Company’s right, title and interest in and to certain [Outstanding Receivables] and [Collections] (as such terms are defined in the Purchase Agreement, which terms do not include Initial Customer Charges [or the Additional Customer Charges, each] as defined below, or collections thereof; and the Outstanding Receivables, Collections thereof, related property and all proceeds of the foregoing are collectively referred to herein as the “Receivables”);]9
7 To be included if Wisconsin Electric Power Company becomes a party to a receivables securitization program other than an additional issuance of environmental trust bonds or similar bonds.
8 To be included if Wisconsin Electric Power Company becomes a party to an additional issuance of environmental trust bonds or similar bonds.
D-1
[WHEREAS, pursuant to that certain [describe agreement whereby Receivables Purchasers acquire security and/or ownership interests in the Receivables from the Buyer] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “[Receivables Purchase Agreement]10”), by and among the Buyer, the Receivables Servicer, the Administrative Agent and the financial institutions and other entities party thereto as [purchasers][lenders] (such [purchasers][lenders] and the Administrative Agent being collectively referred to as the “[Receivables Purchasers]11”), Buyer has [sold and may hereafter sell undivided interests in][granted a security interest in] the Receivables to the Administrative Agent for the benefit of the Receivables Purchasers;]3
[WHEREAS, pursuant to the terms of the Purchase Agreement, the Receivables Purchase Agreement and that certain [describe any agency or similar agreement comprising part of the receivables purchase documents] (as it may hereafter from time to time be further amended, restated or modified and as supplemented from time to time, the “Agency Agreement”, and together with the Purchase Agreement and the Receivables Purchase Agreement, collectively, the “Receivables Agreements”), the Company has been appointed as a servicer (the “Receivables Servicer”) and collection agent and has agreed to provide certain servicing and collection functions with respect to the Receivables;]3
WHEREAS, pursuant to the terms of that certain Environmental Control Property Purchase and Sale Agreement, dated as of [___________], 2021 (as it may hereafter from time to time be amended, restated or modified, the “Initial Sale Agreement”), between the Initial Bond Issuer and the Company in its capacity as seller, the Company has sold to the Initial Bond Issuer certain assets known as “Environmental Control Property” which includes the right to impose, charge and collect “Environmental Control Charges” as each such term is defined or as otherwise used in Section 196.027 of the Statute and the financing order issued under the Statute by the PSCW to Wisconsin Electric on November 17, 2020, Docket No. 6630-ET-101, authorizing the creation of the Environmental Control Property (such Environmental Control Property, the “Initial Customer Property” and such Environmental Control Charges, the “Initial Customer Charges”);
WHEREAS, pursuant to the terms of that certain Indenture dated as of [________], 2021 (as it may hereafter from time to time be amended, restated or modified and as supplemented by the Series Supplement and any other supplemental indenture, the Series Supplement and Indenture, as supplemented, being collectively referred to herein as the “Initial Indenture”), between the Initial Bond Issuer and the Initial Bond Trustee, the Initial Bond Issuer, among other things, has granted to the Initial Bond Trustee a security interest in certain of its assets, including the Initial Customer Property, to secure, among other things, the notes issued pursuant to the Initial Indenture (the “Initial Environmental Trust Bonds”);
9 This paragraph, and all provisions of this form relating to such a program, to be included only if Wisconsin Electric Power Company becomes a party to a receivables securitization program other than an additional issuance of environmental trust bonds or similar bonds.
10 If additional financing takes the form of a loan and a grant of a security interest, the term “Receivables Purchase Agreement” may be changed throughout to “Receivables Financing Agreement” or another appropriate term.
11 If additional financing takes the form of a loan and a grant of a security interest, the term “Receivables Purchasers” may be changed throughout to “Receivables Lenders” or another appropriate term.
D-2
WHEREAS, pursuant to the terms of that certain Servicing Agreement dated as of [_________], 2021 (as it may hereafter from time to time be amended, restated or modified, the “Initial Servicing Agreement,” and the Initial Servicing Agreement, together with the Initial Sale Agreement and the Initial Indenture, the “Initial Bond Agreements”), between the Initial Bond Issuer and the Initial Property Servicer, the Initial Property Servicer has agreed to provide for the benefit of the Initial Bond Issuer certain servicing and collection functions with respect to the Initial Customer Charges;
[WHEREAS, pursuant to the terms of that certain Environmental Control Property Purchase and Sale Agreement, dated as of [___________], 20[__] (as it may hereafter from time to time be amended, restated or modified, the “Additional Sale Agreement”), between the Additional Bond Issuer and the Company in its capacity as seller, the Company has sold to the Additional Bond Issuer certain assets known as “Environmental Control Property” which includes the right to impose, charge and collect “Environmental Control Charges” as each such term is defined or as otherwise used in Section 196.027 of the Statute and the financing order issued under the Statute by the PSCW to Wisconsin Electric on [•], 20[•], Docket No. [•], authorizing the creation of the Environmental Control Property (such Environmental Control Property, the “Additional Customer Property” and such Environmental Control Charges, the “Additional Customer Charges”);]12
[WHEREAS, pursuant to the terms of that certain Indenture dated as of [________], 20[__] (as it may hereafter from time to time be amended, restated or modified and as supplemented by the Series Supplement and any other supplemental indenture, the Series Supplement and Indenture, as supplemented, being collectively referred to herein as the “Additional Indenture”), between the Additional Bond Issuer and the Additional Bond Trustee, the Additional Bond Issuer, among other things, has granted to the Additional Bond Trustee a security interest in certain of its assets, including the Additional Customer Property, to secure, among other things, the notes issued pursuant to the Additional Indenture (the “Additional Environmental Trust Bonds”);]6
[WHEREAS, pursuant to the terms of that certain Servicing Agreement dated as of [_________], 20[__] (as it may hereafter from time to time be amended, restated or modified, the “Additional Servicing Agreement,” and the Additional Servicing Agreement, together with the Additional Sale Agreement and the Additional Indenture, the “Additional Bond Agreements”), between the Additional Bond Issuer and the Additional Property Servicer, the Additional Property Servicer has agreed to provide for the benefit of the Additional Bond Issuer certain servicing and collection functions with respect to the Additional Customer Charges;]6
12 This paragraph, and all provisions of this form relating to additional bonds, to be included only if Wisconsin Electric Power Company becomes a party to an additional issuance of environmental trust bonds or similar bonds.
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WHEREAS, the Receivables, the Initial Customer Charges and the Additional Customer Charges will be invoiced collectively on the bills sent to the Company’s retail electric distribution customers (the “Customers”), which Customers are obligated to pay the Receivables, the Initial Customer Charges and the Additional Customer Charges, and the parties hereto wish to agree upon their respective rights relating to the Receivables, the Initial Customer Property and the Additional Customer Property and any bank accounts into which collections of the foregoing may be deposited, as well as other matters of common interest to them which arise under or result from the coexistence of the Initial Bond Agreements, the Additional Bond Agreements and the Receivables Agreements;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1. Acknowledgment of Ownership Interests and Security Interests.
(a) Each of the parties hereto hereby acknowledges the ownership interest of the Initial Bond Issuer in the Initial Customer Property, including the Initial Customer Charges and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom, and the security interests granted therein in favor of the Initial Bond Trustee for the benefit of itself and the Holders of the Initial Environmental Trust Bonds.
Each of the parties hereto hereby acknowledges the ownership interest of the Additional Bond Issuer in the Additional Customer Property, including the Additional Customer Charges and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom, and the security interests granted therein in favor of the Additional Bond Trustee for the benefit of itself and the Holders of the Additional Environmental Trust Bonds.
Each of the parties hereto hereby acknowledges the ownership interest and security interests of the Buyer and the Receivables Purchasers in the Receivables and the revenues, collections, claims, rights, payments, money and proceeds arising therefrom.
The parties hereto agree that the Initial Customer Property, the Additional Customer Property and the Receivables each shall constitute separate property rights notwithstanding that they may be evidenced by a single bill. The Company further agrees that it will not include the Initial Customer Property or the Additional Customer Property in calculating the amount of the Receivables sold or to be sold under the Receivables Agreements.
The Receivables Purchasers and the Receivables Servicer and the Additional Bond Trustee, the Additional Bond Issuer and the Additional Property Servicer each acknowledge that, notwithstanding anything in the Receivables Agreements or the Additional Bond Agreements to the contrary, none of such parties has any interest in the Initial Customer Property. The Initial Bond Trustee, the Initial Bond Issuer and the Initial Property Servicer and the Receivables Purchasers and the Receivables Servicer each acknowledge that, notwithstanding anything in the Initial Bond Agreements or the Receivables Agreements to the contrary, none of such parties has any interest in the Additional Customer Property. The Initial Bond Trustee, the Initial Bond Issuer and the Initial Property Servicer and the Additional Bond Trust, the Additional Bond Issuer and the Additional Property Servicer each further acknowledge that, notwithstanding anything in the Initial Bond Agreements or the Additional Bond Agreements to the contrary, none of such parties has any interest in the Receivables.
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(b) Each of the Administrative Agent and the Buyer and the Additional Bond Issuer and the Additional Bond Trustee hereby releases all liens and security interests of any kind whatsoever which the Administrative Agent or Buyer or the Additional Bond Issuer or Additional Bond Trustee may hold or obtain in the Initial Customer Property. Each of the Administrative Agent and Buyer and the Additional Bond Issuer and the Additional Bond Trustee agrees, upon the reasonable request of the Company or the Initial Bond Trustee, to execute and deliver to the Initial Bond Trustee such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Company or the Initial Bond Trustee may reasonably request in order to evidence the release provided for in this Section 1(b) and/or to execute and deliver to the Initial Bond Trustee UCC financing statement amendments to exclude the Initial Customer Property from the assets covered by any existing UCC financing statements relating to the Receivables or the Additional Customer Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(b).
(c) Each of the Initial Bond Issuer and the Initial Bond Trustee and the Administrative Agent and the Buyer hereby releases all liens and security interests of any kind whatsoever which the Initial Bond Issuer or the Initial Bond Trustee or the Administrative Agent or Buyer may hold or obtain in the Additional Customer Property. Each of the Initial Bond Issuer and the Initial Bond Trustee and the Administrative Agent and Buyer agrees, upon the reasonable request of the Company or the Additional Bond Trustee, to execute and deliver to the Additional Bond Trustee such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Company or the Additional Bond Trustee may reasonably request in order to evidence the release provided for in this Section 1(c) and/or to execute and deliver to the Additional Bond Trustee UCC financing statement amendments to exclude the Additional Customer Property from the assets covered by any existing UCC financing statements relating to Initial Customer Property or the Receivables; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(c).
(d) Each of the Initial Bond Issuer and the Initial Bond Trustee and the Additional Bond Issuer and the Additional Bond Trustee hereby releases all liens and security interests of any kind whatsoever which either of them may hold or obtain in the Receivables. Each of the Initial Bond Issuer and the Initial Bond Trustee and the Additional Bond Issuer and the Additional Bond Trustee agrees, upon the reasonable request of the Administrative Agent or Buyer, to execute and deliver to the Administrative Agent or Buyer, as applicable, such UCC partial release statements and other documents and instruments, and to do such other acts and things, as the Administrative Agent or Buyer may reasonably request in order to evidence the release provided for in this Section 1(d) and/or to execute and deliver to the Administrative Agent or Buyer, as applicable, UCC financing statement amendments to exclude such Receivables from the assets covered by any existing UCC financing statements relating to the Initial Customer Property or the Additional Customer Property; provided, however, that failure to execute and deliver any such partial release statements, financing statement amendments, documents or instruments, or to do such acts and things, shall not affect or impair the release provided for in this Section 1(d).
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SECTION 2. Deposit Accounts.
(a) The parties hereto each acknowledge that collections with respect to the Initial Customer Property, the Additional Customer Property and the Receivables may from time to time be deposited into one or more designated accounts of the Company or the Buyer (the “Deposit Accounts”) and that such Deposit Accounts may be subject to a security interest of the Administrative Agent and account control agreements among the Company, the Buyer, the Administrative Agent and the applicable account bank. Subject to Section 4, the Company, in its capacity as a collection agent with respect to each of the Initial Customer Property, the Additional Customer Property and the Receivables, agrees to:
(i) maintain the collections in the Deposit Accounts for the benefit of the Initial Property Servicer, the Initial Bond Trustee, the Initial Bond Issuer, the Additional Property Servicer, the Additional Bond Trustee, the Additional Bond Issuer, the Receivables Servicer, the Buyer, the Administrative Agent and the Receivables Purchasers, as their respective interests may appear;
(ii) allocate and remit funds from the Deposit Accounts, whether or not commingled, (x) in the case of collections relating to the Initial Customer Property, at the times and in the manner specified in the Initial Bond Agreements to the Initial Bond Trustee; (y) in the case of collection relating to the Additional Customer Property, at the times and in the manner specified in the Additional Bond Agreements to the Additional Bond Trustee; and (z) in the case of collections relating to the Receivables, allocate and remit funds to the Receivables Purchasers and the Buyer at the times and in the manner specified in the Receivables Agreements; provided, that:
(A) to the extent the combined amounts of remittance are insufficient to satisfy amounts owed in respect of the Initial Customer Charges, the Additional Customer Charges and the Receivables, such allocation and remittances shall be made [on a pro rata basis as among the Initial Customer Charges, the Additional Customer Charges and the Receivables based on the respective amounts of such Initial Customer Charges, Additional Customer Charges and Receivables then due and owing or as otherwise required by the Public Service Commission of Wisconsin]13;
13 If the Public Service Commission of Wisconsin (“PSCW”) requires that insufficient funds be allocated among the Initial Customer Charges, the Additional Customer Charges and the Receivables according to another method, the bracketed text may be replaced with a summary of the PSCW’s requirements.
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(B) late payment penalties of the Receivables, the Additional Customer Charges and the Initial Customer Charges shall be allocated (w) to the Initial Bond Trustee, if such late payment penalties are allocable to the Initial Customer Charges and are not allowed to be retained by the Company under the Initial Bond Agreements, (x) to the Additional Bond Trustee, if such late payment penalties are allocable to the Additional Customer Charges and are not allowed to be retained by the Company under the Additional Bond Agreements, (y) to the Receivables Purchasers to the extent that any such late payment penalties are included in the Receivables sold to the Receivables Purchasers, and (z) otherwise to the Company; and
(C) to the extent the Administrative Agent has exercised exclusive control over any Deposit Account, it shall allocate the funds on deposit therein related to the Initial Customer Property and the Additional Customer Property in accordance with the information provided to it by the Company and consistent with this Section 2, and shall remit such collections related to the Initial Customer Property at the direction of the Initial Bond Trustee and such collections related to the Additional Customer Property at the direction of the Additional Bond Trustee; and
(iii) maintain records as to the amounts deposited into the Deposit Accounts, the amounts remitted therefrom and the allocation as provided above in this subsection (a).
(b) The Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee, the Additional Bond Issuer, the Buyer and the Receivables Purchasers shall each have the right to require an accounting from time to time of collections, deposits, allocations and remittances by the Company relating to the Deposit Accounts. Because of difficulties inherent in allocating collections on a daily basis, (i) the Initial Property Servicer may implement estimates for the purposes of determining the amount of collections which are allocable to the Initial Customer Property, which allocations will be subject to annual reconciliations in accordance with the terms of the Initial Bond Agreements but will otherwise be deemed conclusive, subject to reconciliation as provided in the following sentences and (ii) the Additional Property Servicer may implement estimates for the purposes of determining the amount of collections which are allocable to the Additional Customer Property, which allocations will be subject to annual reconciliations in accordance with the terms of the Additional Bond Agreements but will otherwise be deemed conclusive, subject to reconciliation as provided in the following sentences; provided that unless an Event of Default (as defined in the Initial Indenture or the Additional Indenture and any corresponding term in the Receivables Purchase Agreement) has occurred and is continuing, the Company shall only be required to prepare one such accounting during any fiscal year.
In the event that the estimated remittances to the Initial Bond Issuer for any calendar year are less than the actual amounts of Initial Customer Charge collections, the Initial Bond Issuer shall look to the Initial Property Servicer for any such shortfall and shall have no claims against the Receivables Purchasers or the Additional Bond Issuer for such amounts. In the event that the estimated remittances to the Initial Bond Issuer are greater than the actual amounts of Initial Customer Charge collections, the Initial Property Servicer shall have the right, in accordance with the terms of the Initial Bond Agreements, to net an amount equal to such excess collections out of monies otherwise to be paid to the Initial Bond Issuer, and the Receivables Purchasers acknowledge that they shall look solely to the Initial Property Servicer for such excess collections and shall have no claims against the Initial Bond Issuer for such funds. In the event that the estimated remittances to the Additional Bond Issuer for any calendar year are less than the actual amounts of Additional Customer Charge collections, the Additional Bond Issuer shall look to the Additional Property Servicer for any such shortfall and shall have no claims against the Initial Bond Issuer or the Receivables Purchasers for such amounts. In the event that the estimated remittances to the Additional Bond Issuer are greater than the actual amounts of Additional Customer Charge collections, the Additional Property Servicer shall have the right, in accordance with the terms of the Additional Bond Agreements, to net an amount equal to such excess collections out of monies otherwise to be paid to the Additional Bond Issuer, and the Receivables Purchasers acknowledge that they shall look solely to the Additional Property Servicer for such excess collections and shall have no claims against the Additional Bond Issuer for such funds. Notwithstanding the foregoing, nothing in this paragraph shall prohibit any party from netting any such reconciliation payments owing by such party (the “remitting party”) to another party (the “receiving party”) against the amounts to be paid hereunder to the remitting party by such receiving party.
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(c) The Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee and the Additional Bond Issuer waive any interest in deposits to the Deposit Accounts to the extent that they are properly allocable to Collections with respect to Receivables. The Administrative Agent and Buyer and the Additional Bond Trustee and the Additional Bond Issuer waive any interest in deposits to the Deposit Accounts to the extent that they are properly allocable to Initial Customer Charges. The Administrative Agent and Buyer and the Initial Bond Trustee and the Initial Bond Issuer waive any interest in deposits to the Deposit Accounts to the extent they are properly allocable to the Additional Customer Charges. Each of the parties hereto acknowledges the respective ownership and security interests of the others in amounts on deposit in the Deposit Accounts to the extent of their respective interests as described in this Agreement.
(d) In no event may the Initial Bond Trustee take any action with respect to the Initial Customer Charges in a manner that would result in the Initial Bond Trustee obtaining possession of, or any control over, collections of Additional Customer Charges, Collections of Receivables or any Deposit Account. In the event that the Initial Bond Trustee obtains possession of any Collections related to the Receivables, the Initial Bond Trustee shall notify the Administrative Agent of such fact, shall hold such Collections in trust and shall promptly deliver them to the Administrative Agent upon request. In the event that the Initial Bond Trustee obtains possession of any collections of Additional Customer Charges, the Initial Bond Trustee shall notify the Additional Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Additional Bond Trustee upon request.
In no event may the Additional Bond Trustee take any action with respect to the Additional Customer Charges in a manner that would result in the Additional Bond Trustee obtaining possession of, or any control over, collections of Initial Customer Charges, Collections of Receivables or any Deposit Account. In the event that the Additional Bond Trustee obtains possession of any Collections related to the Receivables, the Additional Bond Trustee shall notify the Administrative Agent of such fact, shall hold such Collections in trust and shall promptly deliver them to the Administrative Agent upon request. In the event that the Additional Bond Trustee obtains possession of any collections of Initial Customer Charges, the Additional Bond Trustee shall notify the Initial Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Initial Bond Trustee upon request.
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Except as contemplated by this Section 2 with respect to the Administrative Agent’s exercise of control over the Deposit Accounts, in no event may the Administrative Agent or Buyer take any action with respect to the collection of Receivables in a manner that would result in the Administrative Agent or Buyer, as applicable, obtaining possession of, or any control over, collections of Initial Customer Charges or collections of Additional Customer Charges. In the event that the Administrative Agent or Buyer obtains possession of any collections of Initial Customer Charges, the Administrative Agent or Buyer, as applicable, shall notify the Initial Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Initial Bond Trustee upon request. In the event that the Administrative Agent or Buyer obtains possession of any collections of Additional Customer Charges, the Administrative Agent or Buyer, as applicable, shall notify the Additional Bond Trustee of such fact, shall hold such collections in trust and shall promptly deliver them to the Additional Bond Trustee upon request.
SECTION 3. Time or Order of Attachment. The acknowledgments contained in Sections 1 and 2 are applicable irrespective of the time or order of attachment or perfection of security or ownership interests or the time or order of filing or recording of financing statements or mortgages or filings under applicable law.
SECTION 4. Servicing.
(a) Pursuant to Section 2, the Company, in its role as collection agent hereunder, shall allocate and remit funds received from Customers for the benefit of the Initial Bond Issuer, the Initial Bond Trustee, the Additional Bond Issuer, the Additional Bond Trustee, the Buyer and the Receivables Purchasers, respectively, and shall control the movement of such funds out of the Deposit Accounts in accordance with the terms of this Agreement. To the extent permitted under the Initial Indenture, the Additional Indenture or the Receivables Purchase Agreement, the Company may appoint a successor servicer or sub-servicer to act in any of its respective capacities under this Agreement so long as such successor servicer or sub-servicer has executed joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement.
(b) In the event that the Initial Bond Trustee is entitled to and desires to exercise its right, pursuant to the Initial Bond Agreements, to replace the Company as Initial Property Servicer, in the event that the Additional Bond Trustee is entitled to and desires to exercise its right, pursuant to the Additional Bond Agreements, to replace the Company as Additional Property Servicer, or in the event that the Receivables Purchasers are entitled to and desire to exercise their right to replace the Company as Receivables Servicer, and therefore to terminate the role of the Company as the Initial Property Servicer, as the Additional Property Servicer or as Receivables Servicer, as applicable, hereunder, the party desiring to exercise such right shall promptly give written notice to the other parties hereto (the “Servicer Notice”) in accordance with the notice provisions of this Agreement and consult with the other parties with respect to the Person who would replace the Company in its capacity as Initial Property Servicer, as Additional Property Servicer or as Receivables Servicer. Any successor to the Company in any of such capacities shall be agreed to by the Initial Bond Trustee, the Additional Bond Trustee and the Administrative Agent within ten (10) Business Days of the date of the Servicer Notice, and such successor shall be subject to satisfaction of the Initial Bonds Rating Agency Condition (as defined below) and the Additional Bonds Rating Agency Condition (as defined below) and otherwise satisfy the provisions of the Initial Servicing Agreement, the Additional Servicing Agreement and the Receivables Agreements. For the avoidance of doubt, (i) the removal of the Company as the Initial Property Servicer shall not automatically cause the removal of the Company as the Additional Property Servicer or as the Receivables Servicer, (ii) the removal of the Company as the Additional Property Servicer shall not automatically cause the removal of the Company as the Initial Property Servicer or as the Receivables Servicer, (iii) the removal of the Company as the Receivables Servicer shall not automatically cause the removal of the Company as the Initial Property Servicer or as the Additional Property Servicer, and (iv) the roles of Initial Property Servicer, Additional Property Servicer and Receivables Servicer may be held by different Persons so long as each such Person has agreed to be bound by the provisions of this Agreement. “Business Day” means any day other than a Saturday, Sunday, or any holiday for national banks or any New York banking corporation in Milwaukee, Wisconsin, New York, New York or the city in which the Corporate Trust Office (as defined in the Initial Indenture and the Additional Indenture) is located. Any Person named as replacement collection agent in accordance with this Section 4 is referred to herein as a “Replacement Collection Agent.” The parties hereto agree that any entity succeeding to the rights of the Company in its capacity as Initial Property Servicer, Additional Property Servicer or as Receivables Servicer hereunder shall execute customary joinder documentation agreeing to act in such capacity and to be bound by the terms of this Agreement.
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(c) Anything in this Agreement to the contrary notwithstanding, any action taken by the Initial Bond Trustee, the Additional Bond Trustee or the Administrative Agent to appoint a Replacement Collection Agent pursuant to this Section 4 shall be subject to the Initial Bonds Rating Agency Condition and the Additional Bonds Rating Agency Condition. For the purposes of this Agreement, (i) the “Initial Bonds Rating Agency Condition” means the “Rating Agency Condition” as such term is defined in the Initial Indenture, and (ii) the “Additional Bonds Rating Agency Condition” means the “Rating Agency Condition” as such term is defined in the Additional Indenture. The parties hereto acknowledge and agree that the approval or the consent of the rating agencies which is required in order to satisfy the Initial Bonds Rating Agency Condition or the Additional Bonds Rating Agency Condition is not subject to any standard of commercial reasonableness, and the parties are bound to satisfy this condition whether or not the rating agencies are unreasonable or arbitrary.
SECTION 5. Sharing of Information. The parties hereto agree to cooperate with each other and make available to each other or any Replacement Collection Agent any and all records and other data relevant to the Initial Customer Property, the Additional Customer Property and the Receivables which they may from time to time possess or receive from the Company, the Initial Property Servicer, the Additional Property Servicer or the Receivables Servicer or any successor hereto or thereto, including, without limitation, any and all computer programs, data files, documents, instruments, files and records and any receptacles and cabinets containing the same. The Company hereby consents to the release of information regarding the Company pursuant to this Section 5.
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SECTION 6. No Joint Venture; No Fiduciary Obligations; Etc..
(a) Nothing herein contained shall be deemed as effecting a joint venture among any of the Company, the Initial Bond Issuer, the Initial Bond Trustee, the Initial Property Servicer, the Additional Bond Issuer, the Additional Bond Trustee, the Additional Property Servicer, the Administrative Agent, the Receivables Servicer and the Buyer.
(b) Neither Buyer nor the Administrative Agent is the agent of, or owes any fiduciary obligation to, the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee, the Additional Bond Issuer, the Holders or any other party under this Agreement. Each of the Initial Bond Trustee (on behalf of itself and the Holders), the Initial Bond Issuer, the Additional Bond Trustee (on behalf of itself and the Holders), the Additional Bond Issuer and the Company hereby waives any right that it may now have or hereafter acquire to make any claim against Buyer or the Administrative Agent, in their respective capacities as such, on the basis of any such fiduciary obligation hereunder. None of the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee or the Additional Bond Issuer is the agent of, or owes any fiduciary obligation to, Buyer or the Administrative Agent or any other party under this Agreement. Each of the Administrative Agent, the Company and Buyer hereby waives any right that it may now have or hereafter acquire to make any claim against the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee or the Additional Bond Issuer on the basis of any such fiduciary obligation hereunder.
(c) Notwithstanding anything herein to the contrary, none of Buyer, the Administrative Agent, the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee or the Additional Bond Issuer shall be required to take any action that exposes it to personal liability or that is contrary to the Initial Indenture, the Additional Indenture, the Servicing Agreement, any Receivables Agreement or applicable law.
(d) None of Buyer, the Administrative Agent, the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee, the Additional Bond Issuer nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own negligence, bad faith or willful misconduct. Without limiting the foregoing, each of Buyer, the Administrative Agent, the Initial Bond Trustee, the Initial Bond Issuer, the Additional Bond Trustee and the Additional Bond Issuer: (i) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any party and shall not be responsible to any party for any statements, warranties or representations made by any other party in connection with this Agreement or any other agreement; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other agreement on the part of any other party; and (iv) shall incur no liability under or in respect of this Agreement by acting upon any writing (which may be by facsimile or other electronic transmission) believed by it in good faith to be genuine and signed or sent by the proper party or parties.
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SECTION 7. Method of Adjustment and Allocation. Each of the parties hereto acknowledges that (i) the Initial Property Servicer will adjust, calculate and allocate payments of Initial Customer Charges in accordance with Section 4.01 of the Initial Servicing Agreement and Section 6 of Annex 1 of the Initial Servicing Agreement in the form attached thereto, and (ii) the Additional Property Servicer will adjust, calculate and allocate payments of Additional Customer Charges in accordance with Section [__] of the Additional Servicing Agreement and [Section [__] of Annex [__]] of the Additional Servicing Agreement in the form attached thereto. Each of the parties hereto hereby acknowledges that (a) none of the Administrative Agent, the Receivables Purchasers, the Additional Bond Issuer or the Additional Bond Trustee shall be deemed or required under this Agreement to have any knowledge of or responsibility for the terms of the Initial Servicing Agreement and Annex 1 thereto, or any adjustment, calculation and allocation thereunder, and (b) none of the Administrative Agent, the Receivables Purchasers, the Initial Bond Issuer or the Initial Bond Trustee shall be deemed or required under this Agreement to have any knowledge of or responsibility for the terms of the Additional Servicing Agreement and [Annex [__] thereto], or any adjustment, calculation and allocation thereunder. Accordingly, (A) each of the Administrative Agent, the Receivables Purchasers, the Additional Bond Issuer and the Additional Bond Trustee may, solely for the purposes of this Agreement, conclusively rely on the accuracy of the calculations of the Initial Property Servicer in making adjustments, calculations and allocations under the Initial Servicing Agreement and Annex 1 thereto, and (B) each of the Administrative Agent, the Receivables Purchasers, the Initial Bond Issuer and the Initial Bond Trustee may, solely for the purposes of this Agreement, conclusively rely on the accuracy of the calculations of the Additional Property Servicer in making adjustments, calculations and allocations under the Additional Servicing Agreement and [Annex [__] thereto]. Such acknowledgement shall not relieve the Receivables Servicer of any of its obligations to make payments in accordance with the terms of the Receivables Agreements, nor shall it relieve the Initial Property Servicer of its obligations under the Initial Servicing Agreement or the Additional Property Servicer of its obligations under the Additional Servicing Agreement.
SECTION 8. Termination. This Agreement shall terminate upon such time that at least two of the following have occurred: (a) the payment in full of the Initial Environmental Trust Bonds, (b) the payment in full of the Additional Environmental Trust Bonds, and (c) the termination of the Receivables Agreements as to the Company and the release of the Company from all further obligations thereunder, except that the understandings and acknowledgements contained in Sections 1, 2, 3 and 15 shall survive the termination of this Agreement. In addition, this Agreement shall terminate and be of no further force and effect: (i) with respect to the Initial Bond Issuer, the Initial Bond Trustee and the Initial Bond Servicer, upon the payment in full of the Initial Environmental Trust Bonds, (ii) with respect to the Additional Bond Issuer, the Additional Bond Trustee and the Additional Bond Servicer, upon the payment in full of the Additional Environmental Trust Bonds, and (iii) with respect to the Administrative Agent, the Buyer, the Receivables Purchasers and the Receivables Servicer, the termination of the Receivables Agreements as to the Company and the release of the Company from all further obligations thereunder.
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SECTION 9. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
(b) Each of the parties hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York state court sitting in the Borough of Manhattan in The City of New York or any U.S. federal court sitting in the Borough of Manhattan in The City of New York in respect of any suit, action or proceeding arising out of or relating to this Agreement and irrevocably accepts for itself and in respect of its respective property, generally and unconditionally, jurisdiction of the aforesaid courts; and each party hereto agrees to, and irrevocably waives any objection based on forum non conveniens or venue not to, appear in such state or U.S. federal court located in the Borough of Manhattan.
(c) EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 10. Further Assurances. Each of the parties hereto agrees to execute any and all agreements, instruments, financing statements, releases and any and all other documents reasonably requested by any of the other parties hereto in order to effectuate the intent of this Agreement. In each case where a release is to be given pursuant to this Agreement, the term release shall include any documents or instruments necessary to effect a release, as contemplated by this Agreement. All releases, subordinations and other instruments submitted to the executing party are to be prepared at the expense of the Company. Notwithstanding anything herein to the contrary, (i) the Initial Bond Trustee shall not be required to execute any such agreements, instruments, releases or other documents unless directed to do so by an “Issuer Order,” as such term is defined in the Initial Indenture, and (ii) the Additional Bond Trustee shall not be required to execute any such agreements, instruments, releases or other documents unless directed do so by an “Issuer Order,” as such term is defined in the Additional Indenture.
SECTION 11. Limitation on Rights of Others. This Agreement is solely for the benefit of the parties hereto, the Holders of the Initial Environmental Trust Bonds, the Holders of the Additional Environmental Trust Bonds and the Receivables Purchasers, and no other person or entity shall have any rights, benefits, priority or interest under or because of the existence of this Agreement.
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SECTION 12. Amendments. In the event that (x) the Company hereafter causes any property (“New Customer Property”) consisting of the right to impose specified charges on Customers to be created and sold and pledged by the buyer thereof for the benefit of Holders pursuant to any financing order of the Public Service Commission of Wisconsin, and the Company acts as servicer for the bonds issued pursuant to such financing order, or (y) the Company enters into any new receivables program in which the Company participates as a seller or as a servicer or sub-servicer of receivables, then, in either such event, upon the written request of the Company, the other parties hereto agree that this Agreement may be amended and restated (i) to add as parties hereto the relevant issuer of such additional bonds, the indenture trustee therefor, and the servicer of such New Customer Property and/or the relevant lenders or purchasers and servicers under such additional receivables program, as the case may be, and (ii) to reflect the rights and obligations of the parties with respect to such new receivables purchases on terms substantially similar to the rights and obligations of the Receivables Servicer, the Administrative Agent and the Receivables Purchasers [hereunder]14 [as set forth in the form of Intercreditor Agreement attached as Exhibit D to the Initial Indenture]15 and (iii) to reflect the rights and obligations of the parties with respect to any such New Customer Property on terms substantially similar to the rights and obligations of the Initial Bond Issuer, the Initial Bond Trustee and the Initial Servicer hereunder; provided that no such amendment shall be effective unless (x) evidenced by a written instrument signed by the parties hereto and such additional parties and (y) the Initial Bonds Rating Agency Condition and the Additional Bonds Rating Agency Condition shall have been satisfied with respect thereto and provided, further, that no party hereto shall be required to execute any such amended agreement on terms which are materially more disadvantageous to it or to the Holders of the Initial Environmental Trust Bonds (in the case of the Initial Bond Trustee), to the Holders of the Additional Environmental Trust Bonds (in the case of the Additional Bond Trustee) or to the Receivables Purchasers (in the case of the Administrative Agent) than the terms contained herein. In addition, (i) the Initial Bond Trustee shall not be required to execute any such amendment unless directed to do so by an “Issuer Order,” as such term is defined in the Initial Indenture, and (ii) the Additional Bond Trustee shall not be required to execute any such amendment unless directed to do so by an “Issuer Order,” as such term is defined in the Additional Indenture.
SECTION 13. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons, or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
14 This language will be included if Wisconsin Electric Power Company has a general receivables securitization program that is the subject of this Agreement.
15 This language will be included if this Agreement addresses only two or more series of environmental trust bonds or similar bonds where Wisconsin Electric Power Company has not entered into a general receivables securitization program.
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SECTION 14. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. The parties hereto agree that this Agreement may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Agreement may be made by facsimile, email or other electronic transmission. The Issuer agrees to assume all risks arising out of the use of digital signatures and electronic methods of submitting such signatures to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting upon documents with unauthorized signatures and the risk of interception and misuse by third parties.
SECTION 15. Nonpetition Covenant.
(a) Notwithstanding any prior termination of this Agreement, the Initial Indenture or the Additional Indenture, each of the parties covenants that it shall not, prior to the date which is one year and one day after payment in full of the Initial Environmental Trust Bonds and the Additional Environmental Trust Bonds, acquiesce, petition or otherwise invoke or cause the Initial Bond Issuer or the Additional Bond Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Initial Bond Issuer or the Additional Bond Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Initial Bond Issuer or any substantial part of its property, or the Additional Bond Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Initial Bond Issuer or the Additional Bond Issuer. Nothing in this Section 15 shall preclude, or be deemed to estop, any party hereto (a) from taking or omitting to take any action prior to such date in (i)(A) any case or proceeding voluntarily filed or commenced by or on behalf of the Initial Bond Issuer under or pursuant to any such law or (B) any involuntary case or proceeding pertaining to the Initial Bond Issuer that is filed or commenced by or on behalf of a Person other than the Initial Bond Trustee, as the case may be, and is not joined in by the Initial Bond Trustee, as the case may be, under or pursuant to any such law, or (ii)(A) any case or proceeding voluntarily filed or commenced by or on behalf of the Additional Bond Issuer under or pursuant to any such law or (B) any involuntary case or proceeding pertaining to the Additional Bond Issuer that is filed or commenced by or on behalf of a Person other than the Additional Bond Trustee, as the case may be, and is not joined in by the Additional Bond Trustee, as the case may be, under or pursuant to any such law, or (b) from commencing or prosecuting any legal action that is not an involuntary case or proceeding under or pursuant to any such law against the Initial Bond Issuer, the Additional Bond Issuer or any of its properties.
(b) Notwithstanding any prior termination of this Agreement or the Receivables Purchase Agreement, each of the parties hereto other than the Administrative Agent hereby covenants and agrees that it shall not, prior to the date which is one year and one day after the termination of the Receivables Purchase Agreement and the payment in full of all amounts owing by Buyer thereunder, acquiesce, petition or otherwise invoke or cause Buyer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against Buyer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Buyer or any substantial part of the property of Buyer, or ordering the winding up or liquidation of the affairs of Buyer.
SECTION 16. Trustees. [_____________], as Initial Bond Trustee, in acting hereunder, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Initial Indenture. [_____________], as Additional Bond Trustee, in acting hereunder, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Additional Indenture.
SECTION 17. Notices, Etc.. Any notice provided or permitted by this Agreement to be made upon, given or furnished to or filed with any party hereto shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing by facsimile transmission, other electronic transmission (including email), first-class mail or overnight delivery service to the applicable party at its address set forth on Exhibit A hereto or, as to any party, at such other address as shall be designated by such party by written notice to the other parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| WISCONSIN ELECTRIC POWER COMPANY, as Company, as Initial Property Servicer, as Additional Property Servicer, as Receivables Servicer and as a collection agent | ||
| By: | ||
| Name: | ||
| Title: | ||
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| [NAME], as Buyer | ||
| By: | ||
| Name: | ||
| Title: | ||
| [_______________], not in its individual capacity, but solely as Initial Bond Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Signature Page to
Intercreditor Agreement
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| [Insert Admin Agent name], as Administrative Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
| [SPE II] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [________], not in its individual capacity, but solely as Additional Bond Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Signature Page to
Intercreditor Agreement
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EXHIBIT A
NOTICE ADDRESSES
| Wisconsin Electric Power Company |
| 231 West Michigan Street |
| Milwaukee, Wisconsin 53203 |
| Telephone: |
| Email: |
| WEPCo Environmental Trust Finance I, LLC |
| 231 West Michigan Street |
| Milwaukee, Wisconsin 53203 |
| Telephone: |
| Email: |
| [Buyer] |
| [Address] |
| Attention: |
| Telephone: |
| Facsimile: |
| Email: |
| [Administrative Agent] |
| [Address] |
| Attention: |
| Telephone: |
| Facsimile: |
| Email: |
| [Initial Trustee] |
| [Address] |
| Attention: |
| Telephone: |
| Facsimile: |
| Email: |
| [SPE II] |
| 231 West Michigan Street |
| Milwaukee, Wisconsin 53201 |
| Telephone: |
| Email: |
| [Additional Trustee] |
| [Address] |
| Attention: |
| Telephone: |
| Facsimile: |
| Email: |
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APPENDIX A
DEFINITIONS AND RULES OF CONSTRUCTION
A. Defined Terms. As used in the Indenture, the Sale Agreement, the LLC Agreement, the Servicing Agreement, the Series Supplement or any other Basic Document as hereinafter defined, as the case may be (unless the context requires a different meaning), the following terms have the following meanings:
“17g-5 Website” is defined in Section 10.06 of the Indenture.
“Account Records” is defined in Section 1(a)(i) of the Administration Agreement.
“Act” is defined in Section 10.03(a) of the Indenture.
“Administration Agreement” means the Administration Agreement, dated as of May 12, 2021, by and between Wisconsin Electric and the Issuer.
“Administration Fee” is defined in Section 2 of the Administration Agreement.
“Administrator” means Wisconsin Electric, as Administrator under the Administration Agreement, or any successor Administrator to the extent permitted under the Administration Agreement.
“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Amendatory Tariff” means a revision to service riders or any other notice filing filed with the PSCW in respect of the Tariff pursuant to a True-Up Adjustment.
“Annual Accountant’s Report” is defined in Section 3.04 of the Servicing Agreement.
“Annual True-Up Adjustment” means each adjustment to the Environmental Control Charges made pursuant to the terms of the Financing Order in accordance with Section 4.01(b)(i) of the Servicing Agreement.
“Annual True-Up Adjustment Date” means June 1 of each year, commencing with June 1, 2022.
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.), as amended from time to time.
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“Basic Documents” means the Indenture, the Administration Agreement, the Sale Agreement and the Bill of Sale, the Certificate of Formation, the LLC Agreement, the Servicing Agreement, any Intercreditor Agreement, the Series Supplement, the Letter of Representation, the Underwriting Agreement and all other documents and certificates delivered in connection therewith.
“Bill of Sale” means a bill of sale substantially in the form of Exhibit A to the Sale Agreement delivered pursuant to Section 2.02(a) of the Sale Agreement.
“Billed EC Charges” is defined in Annex I to the Servicing Agreement.
“Billing Period” means any period commencing on the first Servicer Business Day of any Calendar month and ending on the last Servicer Business Day of such Calendar month.
“Bills” means each of the regular monthly bills, summary bills and other bills issued to Customers by Wisconsin Electric on its own behalf and in its capacity as Servicer.
“Book-Entry Form” means, with respect to any Environmental Trust Bond, that such Environmental Trust Bond is not certificated and the ownership and transfers thereof shall be made through book entries by a Clearing Agency as described in Section 2.11 of the Indenture and the Series Supplement.
“Book-Entry Environmental Trust Bonds” means any Environmental Trust Bonds issued in Book-Entry Form; provided, however, that, after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Environmental Trust Bonds are to be issued to the Holder of such Environmental Trust Bonds, such Environmental Trust Bonds shall no longer be “Book-Entry Environmental Trust Bonds”.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in Milwaukee, Wisconsin or New York, New York are, or DTC or the Corporate Trust Office is, authorized or obligated by law, regulation or executive order to be closed.
Capital Contribution” means the amount of cash contributed to the Issuer by Wisconsin Electric as specified in the LLC Agreement.
“Capital Subaccount” is defined in Section 8.02(a) of the Indenture.
“Certificate of Compliance” means the certificate referred to in Section 3.03 of the Servicing Agreement and substantially in the form of Exhibit D to the Servicing Agreement.
“Certificate of Formation” means the Certificate of Formation filed with the Secretary of State of the State of Delaware on January 5, 2021 pursuant to which the Issuer was formed.
“Claim” means a “claim” as defined in Section 101(5) of the Bankruptcy Code.
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“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
“Clearing Agency Participant” means a securities broker, dealer, bank, trust company, clearing corporation or other financial institution or other Person for whom from time to time a Clearing Agency effects book entry transfers and pledges of securities deposited with such Clearing Agency.
“Closing Date” means, May 12, 2021, the date on which the Environmental Trust Bonds are to be originally issued in accordance with Section 2.10 of the Indenture and the Series Supplement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Account” is defined in Section 8.02(a) of this Indenture.
“Collection Period” means, with respect to any True-Up Adjustment, the period comprised of the twelve (12) succeeding Billing Periods beginning with the Billing Period in which a True-Up Adjustment would go into effect; provided that for the purpose of calculating the first Periodic Revenue Requirement as of the Closing Date, “Collection Period” means, initially, the period commencing on the Closing Date and ending on the last day of November, 2021.
“Company Minutes” is defined in Section 1(a)(iv) of the Administration Agreement.
“Corporate Trust Office” means the office of the Indenture Trustee at which, at any particular time, this Indenture shall be administered, which office (for all purposes other than registration of transfer of the Environmental Trust Bonds) as of the date hereof is located at 190 South LaSalle Street, 7th Floor, MK-IL-SL7R, Chicago, Illinois 60603, Attention: WEPCo Environmental Trust Finance I, LLC, Series 2021; Telephone: (312) 332-7464; Facsimile: (312) 332-7996, and for registration of transfers of Environmental Trust Bonds, the office is located at 111 E. Fillmore Avenue, St. Paul, Minnesota 55107, Attention: Bondholder Services, or at such other address as the Indenture Trustee may designate from time to time by notice to the Holders of Environmental Trust Bonds and the Issuer, or the principal corporate trust office of any successor trustee designated by like notice.
“Covenant Defeasance Option” is defined in Section 4.01(b) of the Indenture.
“Customer” means each existing and future customer that obtains retail electric distribution service from Wisconsin Electric or its successors, regardless of whether the customer obtains other service from a different energy utility or other energy supplier.
“Daily Remittance Amount” is defined in Section 6.11(a) of the Servicing Agreement.
“Default” means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default as defined in Section 5.01 of the Indenture.
“Definitive Environmental Trust Bonds” is defined in Section 2.11 of the Indenture.
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“Delaware UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of Delaware.
“DTC” means The Depository Trust Company or any successor thereto.
“EC Charge Collections” means the payments made by Customers based on the Environmental Control Charges that are actually received by the Servicer.
“EC Rate Class” means one of the separate rate classes to whom Environmental Control Charges are allocated for ratemaking purposes in accordance with the Financing Order.
“Eligible Account” means a segregated non-interest-bearing trust account with an Eligible Institution.
“Eligible Institution” means:
(a) the corporate trust department of the Indenture Trustee, so long as any of the securities of the Indenture Trustee have (i) either a short-term credit rating from Moody’s and Fitch of at least “P-1” and “F1”, respectively, or a long-term unsecured debt rating from Moody’s and Fitch of at least “A2” and “A”, respectively, and (ii) have a credit rating from S&P of at least “A”; or
(b) a depository institution organized under the laws of the United States of America or any State (or any domestic branch of a foreign bank) (i) that has either (A) a long-term issuer rating of “AA-” or higher by S&P, “A2” or higher by Moody’s and “A” or higher by Fitch, or (B) a short-term issuer rating of “A-1” or higher by S&P, “P-1” or higher by Moody’s and “F1” or higher by Fitch, and (ii) whose deposits are insured by the Federal Deposit Insurance Corporation.
If so qualified under clause (b) above, the Indenture Trustee may be considered an Eligible Institution for the purposes of clause (a) of this definition.
“Eligible Investments” means instruments or investment property which evidence:
(a) direct obligations of, or obligations fully and unconditionally guaranteed as to timely payment by, the United States of America;
(b) demand or time deposits of, unsecured certificates of deposit of, money market deposit accounts of or bankers’ acceptances issued by, any depository institution (including the Indenture Trustee, acting in its commercial capacity) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by U.S. federal or state banking authorities, so long as the commercial paper or other short-term debt obligations of such depository institution are, at the time of deposit, rated at least “A-1”, “P-1” and “F1” or their equivalents by each of S&P, Moody’s and Fitch, or such lower rating as will not result in the downgrading or withdrawal of the ratings of the Environmental Trust Bonds;
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(c) commercial paper (including commercial paper of the Indenture Trustee, acting in its commercial capacity, and other than commercial paper of Wisconsin Electric or any of its Affiliates), which at the time of purchase is rated at least “A-1”, “P-1” and “F1” or their equivalents by each of S&P, Moody’s and Fitch or such lower rating as will not result in the downgrading or withdrawal of the ratings of the Environmental Trust Bonds;
(d) investments in money market funds having a rating in the highest investment category granted thereby (including funds for which the Indenture Trustee or any of its Affiliates is investment manager or advisor) from Moody’s, S&P and Fitch;
(e) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States of America or its agencies or instrumentalities, entered into with Eligible Institutions; and
(f) repurchase obligations with respect to any security or whole loan entered into with an Eligible Institution or with a registered broker/dealer acting as principal and that meets the ratings criteria set forth below:
(i) a broker/dealer (acting as principal) registered as a broker or dealer under Section 15 of the Exchange Act (any such broker/dealer being referred to in this definition as a “broker/dealer”), the unsecured short-term debt obligations of which are rated at least “P-1” by Moody’s, “A-1+” by S&P and, if Fitch provides a rating thereon, “F-1+” by Fitch at the time of entering into such repurchase obligation; or
(ii) an unrated broker/dealer, acting as principal, that is a wholly-owned subsidiary of a non-bank or bank holding company the unsecured short-term debt obligations of which are rated at least “P-1” by Moody’s, “A-1+” by S&P and, if Fitch provides a rating thereon, “F-1+” by Fitch at the time of purchase so long as the obligations of such unrated broker/dealer are unconditionally guaranteed by such non-bank or bank holding company,
in each case maturing not later than the Business Day immediately preceding the next Payment Date or Special Payment Date, if applicable (for the avoidance of doubt, investments in money market funds or similar instruments which are redeemable on demand shall be deemed to satisfy the foregoing requirement). Notwithstanding the foregoing: (1) no securities or investments which mature in 30 days or more shall be “Eligible Investments” unless the issuer thereof has either a short-term unsecured debt rating of at least “P-1” from Moody’s or a long-term unsecured debt rating of at least “A1” from Moody’s; and has at least a debt rating of “F1+” or “AA-“ from Fitch; (2) no securities or investments described in clauses (b) through (d) above which have maturities of more than 30 days but less than or equal to 3 months shall be “Eligible Investments” unless the issuer thereof has a long-term unsecured debt rating of at least “A1” from Moody’s and a short-term unsecured debt rating of at least “P-1” from Moody’s; (3) no securities or investments described in clauses (b) through (d) above which have maturities of more than 3 months shall be “Eligible Investments” unless the issuer thereof has a long-term unsecured debt rating of at least “A1” from Moody’s and a short-term unsecured debt rating of at least “P-1” from Moody’s; (4) no securities or investments described in bullet points (b) through (d) above which have a maturity of 60 days or less will be Eligible Investments unless such securities have a rating from S&P of at least “A-1”; and (5) no securities or investments described in clauses (b) through (d) above which have a maturity of more than 60 days will be Eligible Investments unless such securities have a rating from S&P of at least “AA-”, “A-1+” or “AAAm”.
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“Environmental Control Charge” means any “environmental control charge” as defined in Section 196.027(1)(e) of the Statute that is authorized by the Financing Order.
“Environmental Control Costs” means “environmental control costs” as defined in the Statute.
“Environmental Control Property” means all “environmental control property” (as defined in Section 196.027(1)(h) of the Statute) created pursuant to the Financing Order, including the right to impose, collect and receive Environmental Control Charges as provided in the Financing Order, the right to obtain True-Up Adjustments of the Environmental Control Charges as provided in the Financing Order and the Statute, and all revenues or other proceeds arising from those rights and interests.
“Environmental Control Property Records” is defined in Section 5.01 of the Servicing Agreement.
“Environmental Trust Bond Collateral” is defined in the preamble of this Indenture.
“Environmental Trust Bond Interest Rate” means, with respect to any Tranche of Environmental Trust Bonds, the rate at which interest accrues on the Environmental Trust Bonds of such Tranche, as specified in the Series Supplement.
“Environmental Trust Bond Register” is defined in Section 2.05 of the Indenture.
“Environmental Trust Bond Registrar” is defined in Section 2.05 of the Indenture.
“Environmental Trust Bonds” means the environmental trust bonds authorized by the Financing Order and issuance pursuant to this Indenture.
“Estimated EC Charge Collections” means the sum of the EC Charge Collections which are deemed to have been received by the Servicer, calculated in accordance with Annex I of the Servicing Agreement.
“Event of Default” is defined in Section 5.01 of the Indenture.
“Excess Funds Subaccount” is defined in Section 8.02(a) of the Indenture.
“Excess Remittance” means the amount, if any, calculated for a particular Reconciliation Period, by which all Estimated EC Charge Collections remitted to the Collection Account during such Reconciliation Period exceed EC Charge Collections received by the Servicer during such Reconciliation Period.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“Expected Amortization Schedule” means, with respect to any Tranche, the expected amortization schedule related thereto set forth in the Series Supplement.
“Federal Book-Entry Regulations” means 31 C.F.R. Part 357 et seq. (Department of Treasury).
“Final” means, with respect to the Financing Order, that the Financing Order has become final, that the Financing Order is not being appealed and that the time for filing an appeal therefrom has expired.
“Final Maturity Date” means, with respect to each Tranche of Environmental Trust Bonds, the final maturity date therefor as specified in the Series Supplement.
“Financing Costs” means “financing costs” as defined in the Statute.
“Financing Order” means the financing order issued under the Statute by the PSCW to Wisconsin Electric on November 17, 2020, Docket No. 6630-ET-101, authorizing the creation of the Environmental Control Property.
“Fitch” means Fitch Ratings, Inc. or any successor thereto. References to Fitch are effective so long as Fitch is a Rating Agency.
“General Subaccount” is defined in Section 8.02(a) of the Indenture.
“Global Environmental Trust Bond” means an Environmental Trust Bond to be issued to the Holders thereof in Book-Entry Form, which Global Environmental Trust Bond shall be issued to the Clearing Agency, or its nominee, in accordance with Section 2.11 of the Indenture and the Series Supplement.
“Governmental Authority” means any nation or government, any U.S. federal, state, local or other political subdivision thereof and any court, administrative agency or other instrumentality or entity exercising executive, legislative, judicial, regulatory or administrative functions of government.
“Grant” means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, grant, transfer, create, grant a lien upon, a security interest in and right of set-off against, deposit, set over and confirm pursuant to the Indenture and the Series Supplement. A Grant of the Environmental Trust Bond Collateral or of any other agreement or instrument included therein shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for payments in respect of the Environmental Trust Bond Collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
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“Hague Securities Convention” means the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, ratified September 28, 2016, S. Treaty Doc. No, 112-6 (2012).
“Holder” means the Person in whose name an Environmental Trust Bond is registered on the Environmental Trust Bond Register.
“Indemnified Losses” is defined in Section 5.03 of the Servicing Agreement.
“Indenture” means the Indenture, dated as May 12, 2021, by and between the Issuer and U.S. Bank National Association, as Indenture Trustee and as Securities Intermediary.
“Indenture Trustee” means U.S. Bank National Association, a national banking association, as indenture trustee for the benefit of the Secured Parties, or any successor indenture trustee under the Indenture.
“Independent” means, when used with respect to any specified Person, that such specified Person (a) is in fact independent of the Issuer, any other obligor on the Environmental Trust Bonds, the Seller, the Servicer and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Seller, the Servicer or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuer, any such other obligor, the Seller, the Servicer or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director (other than as an independent director or manager) or Person performing similar functions.
“Independent Certificate” means a certificate to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 10.01 of the Indenture, made by an Independent appraiser or other expert appointed by an Issuer Order and consented to by the Indenture Trustee, and such certificate shall state that the signer has read the definition of “Independent” in the Indenture and that the signer is Independent within the meaning thereof.
“Independent Manager” is defined in Section 4.01(a) of the LLC Agreement.
“Independent Manager Fee” is defined in Section 4.01(a) of the LLC Agreement.
“Initial Payment Date” is defined in Section 3 of the Series Supplement.
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“Insolvency Event” means, with respect to a specified Person: (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such specified Person or any substantial part of its property in an involuntary case under any applicable U.S. federal or [s]tate bankruptcy, insolvency or other similar law in effect as of the date hereof or thereafter, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such specified Person or for any substantial part of its property, or ordering the winding-up or liquidation of such specified Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of sixty (60) consecutive days; or (b) the commencement by such specified Person of a voluntary case under any applicable U.S. federal or [s]tate bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such specified Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such specified Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such specified Person or for any substantial part of its property, or the making by such specified Person of any general assignment for the benefit of creditors, or the failure by such specified Person generally to pay its debts as such debts become due, or the taking of action by such specified Person in furtherance of any of the foregoing.
“Intercreditor Agreement” means, as the context may require, any intercreditor agreement that the Seller, the Servicer, the Issuer and the Indenture Trustee enter into with either (i) the investors in any future accounts receivable or similar financing arrangement concerning receivables payable by Customers or (ii) the trustee for any holders of bonds issued by Affiliates of Wisconsin Electric which are backed by property consisting of charges payable by Customers pursuant to the Statute or any similar law, collections of which receivables or other charges will be commingled with the EC Charge Collections, in each case subject to the terms of Section 10.17 of the Indenture.
“Interim-True Up Adjustment” means any Mid-Year True-Up Adjustment, Quarterly True-Up Adjustment or Optional True-Up Adjustment.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“Investment Earnings” means investment earnings on funds deposited in the Collection Account net of losses and investment expenses.
“Issuer” means WEPCo Environmental Trust Finance I, LLC, a Delaware limited liability company, named as such in the Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the Trust Indenture Act, each other obligor on the Environmental Trust Bonds.
“Issuer Documents” is defined in Section 1(a)(iv) of the Administration Agreement.
“Issuer Order” means a written order signed in the name of the Issuer by any one of its Responsible Officers and delivered to the Indenture Trustee or Paying Agent, as applicable.
“Issuer Request” means a written request signed in the name of the Issuer by any one of its Responsible Officers and delivered to the Indenture Trustee or Paying Agent, as applicable.
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“Legal Defeasance Option” is defined in Section 4.01(b) of the Indenture.
“Letter of Representations” means any applicable agreement between the Issuer and the applicable Clearing Agency, with respect to such Clearing Agency’s rights and obligations (in its capacity as a Clearing Agency) with respect to any Book-Entry Environmental Trust Bonds.
“Lien” means a security interest, lien, mortgage, charge, pledge, claim or encumbrance of any kind.
“LLC Act” means the Delaware Limited Liability Company Act, as amended.
“LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Issuer, dated as of March 12, 2021.
“Losses” is defined in Section 1.01(b) of the Sale Agreement.
“Manager” means each manager of the Issuer under the LLC Agreement.
“Member” has the meaning specified in the first paragraph of the LLC Agreement.
“Mid-Year True-Up Adjustment” means each adjustment to the Environmental Control Charges made on the Mid-Year True-Up Adjustment Date pursuant to the terms of the Financing Order in accordance with Section 4.01(b)(iii) of the Servicing Agreement.
“Mid-Year True-Up Adjustment Date” means December 1 of each year, commencing with December 1, 2021.
“Mid-Year True-Up Adjustment Filing Date” is defined in Section 4.01(b)(iii) of the Servicing Agreement.
“Minimum Denomination” is defined in the Series Supplement.
“Monthly Servicer’s Certificate” is defined in Section 3.01(b)(i) of the Servicing Agreement.
“Moody’s” means Moody’s Investors Service, Inc. or any successor thereto. References to Moody’s are effective so long as Moody’s is a Rating Agency.
“Non-Routine True-Up Adjustment” has the meaning set forth in Section 4.01(b)(ii) of the Servicing Agreement.
“Non-Routine True-Up Adjustment Date” means the date a Non-Routine True-Up Adjustment becomes effective, which shall be the date such Non-Routine True-Up Adjustment is approved by the PSCW.
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“NY UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Officer’s Certificate” means a certificate signed by a Responsible Officer of the Issuer under the circumstances described in, and otherwise complying with, the applicable requirements of Section 10.01 of the Indenture, and delivered to the Indenture Trustee. Unless otherwise specified, any reference in the Indenture to an Officer’s Certificate shall be to an Officer’s Certificate of any Responsible Officer of the party delivering such certificate.
“Operating Expenses” means all ongoing Financing Costs of the Issuer (other than interest on the Environmental Trust Bonds), including all amounts owed by the Issuer to the Indenture Trustee (including indemnities, legal, audit fees and expenses) or any Manager, the Servicing Fee and other amounts owed to the Servicer pursuant to the Servicing Agreement, the Administration Fee and other amounts owed to the Administrator pursuant to the Administration Agreement, legal and accounting fees, Rating Agency fees, costs and expenses of the Issuer and any franchise or other taxes owed by the Issuer, including on investment income in the Collection Account.
“Opinion of Counsel” means one or more written opinions of counsel, who may, except as otherwise expressly provided in the Basic Documents, be employees of or counsel to the party providing such opinion of counsel, which counsel shall be reasonably acceptable to the party receiving such opinion of counsel, and shall be in form and substance reasonably acceptable to such party. Any Opinion of Counsel may be based, insofar as it relates to factual matters (including financial and capital markets), upon a certificate or opinion of, or representations by, an officer or officers of the Servicer or the Issuer and other documents necessary and advisable in the judgment of counsel delivering such opinion.
“Optional True-Up Adjustment” means each adjustment to the Environmental Control Charges made pursuant to the terms of the Financing Order in accordance with Section 4.01(b)(iv) of the Servicing Agreement.
“Outstanding” means, as of the date of determination, all Environmental Trust Bonds theretofore authenticated and delivered under this Indenture, except:
(a) Environmental Trust Bonds theretofore canceled by the Environmental Trust Bond Registrar or delivered to the Environmental Trust Bond Registrar for cancellation;
(b) Environmental Trust Bonds or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Holders of such Environmental Trust Bonds; and
(c) Environmental Trust Bonds in exchange for or in lieu of other Environmental Trust Bonds which have been issued pursuant to this Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Environmental Trust Bonds are held by a Protected Purchaser;
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provided, that, in determining whether the Holders of the requisite Outstanding Amount of the Environmental Trust Bonds or any Tranche thereof have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any Basic Document, Environmental Trust Bonds owned by the Issuer, any other obligor upon the Environmental Trust Bonds, the Member, the Seller, the Servicer or any Affiliate of any of the foregoing Persons shall be disregarded and deemed not to be Outstanding (unless one or more such Persons owns 100% of such Environmental Trust Bonds), except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Environmental Trust Bonds that the Indenture Trustee actually knows to be so owned shall be so disregarded. Environmental Trust Bonds so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Environmental Trust Bonds and that the pledgee is not the Issuer, any other obligor upon the Environmental Trust Bonds, the Member, the Seller, the Servicer or any Affiliate of any of the foregoing Persons.
“Outstanding Amount” means the aggregate principal amount of all Environmental Trust Bonds, or, if the context requires, all Environmental Trust Bonds of a Tranche, Outstanding at the date of determination.
“Paying Agent” means, with respect to the Indenture, the Indenture Trustee and any other Person appointed as a paying agent for the Environmental Trust Bonds pursuant to the Indenture.
“Payment Date” means, with respect to any Tranche of Environmental Trust Bonds, the dates specified in the Series Supplement; provided, that if any such date is not a Business Day, the Payment Date shall be the Business Day succeeding such date.
“Periodic Billing Requirement” means, for any Collection Period, the aggregate amount of Environmental Control Charges calculated by the Servicer as necessary to be billed during such period in order to collect the Periodic Revenue Requirement on a timely basis.
“Periodic Interest” means, with respect to any Payment Date, the periodic interest for such Payment Date as specified in the Series Supplement.
“Periodic Revenue Requirement” for any Collection Period means the total dollar amount of EC Charge Collections reasonably calculated by the Servicer in accordance with Section 4.01 of the Servicing Agreement as necessary to be received during such Collection Period (after giving effect to the allocation and distribution of amounts on deposit in the Excess Funds Subaccount at the time of calculation and which are projected to be available for payments on the Environmental Trust Bonds at the end of such Collection Period and including any shortfalls in Periodic Revenue Requirements for any prior Collection Period) in order to ensure that, as of the last Payment Date occurring in such Collection Period, (a) all accrued and unpaid interest on the Environmental Trust Bonds then due shall have been paid in full on a timely basis, (b) the Outstanding Amount of the Environmental Trust Bonds is equal to the Projected Unpaid Balance on each Payment Date during such Collection Period, (c) the balance on deposit in the Capital Subaccount equals the Required Capital Level and (d) all other fees and expenses due and owing and required or allowed to be paid under Section 8.02 of the Indenture as of such date shall have been paid in full; provided, that, with respect to any Annual True-Up Adjustment or Interim True-Up Adjustment occurring after the last Scheduled Final Payment Date for the Environmental Trust Bonds, the Periodic Revenue Requirements shall be calculated to ensure that sufficient Environmental Control Charges will be collected to retire the Environmental Trust Bonds in full as of the next Payment Date.
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“Periodic Principal” means, with respect to any Payment Date, the excess, if any, of the Outstanding Amount of Environmental Trust Bonds over the outstanding principal balance specified for such Payment Date on the Expected Amortization Schedule.
“Permitted Lien” means the Lien created by the Indenture.
“Permitted Successor” is defined in Section 5.02 of the Sale Agreement.
“Person” means any individual, corporation, limited liability company, estate, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or Governmental Authority.
“Predecessor Environmental Trust Bond” means, with respect to any particular Environmental Trust Bond, every previous Environmental Trust Bond evidencing all or a portion of the same debt as that evidenced by such particular Environmental Trust Bond, and, for the purpose of this definition, any Environmental Trust Bond authenticated and delivered under Section 2.06 of the Indenture in lieu of a mutilated, lost, destroyed or stolen Environmental Trust Bond shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Environmental Trust Bond.
“Premises” is defined in Section 1(g) of the Administration Agreement.
“Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.
“Projected Unpaid Balance” means, as of any Payment Date, the sum of the projected outstanding principal amount of each Tranche of the Environmental Trust Bonds for such Payment Date set forth in the Expected Amortization Schedule.
“Prospectus” means the prospectus dated May 4, 2021 relating to the Environmental Trust Bonds.
“Protected Purchaser” has the meaning specified in Section 8-303 of the UCC.
“PSCW” means the Public Service Commission of Wisconsin and any successor thereto.
“PSCW Regulations” means the regulations, including proposed or temporary regulations, promulgated by the PSCW pursuant to Wisconsin law.
“Quarterly True-Up Adjustment” means each adjustment to the Environmental Control Charges made on the Quarterly True-Up Adjustment Date pursuant to the terms of the Financing Order in accordance with Section 4.01(b)(iii) of the Servicing Agreement.
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“Quarterly True-Up Adjustment Date” means each of March 1 (the date that is three months after the Mid-Year True-Up Adjustment Date) and September 1 (the date that is three months after the Annual True-Up Adjustment Date).
“Quarterly True-Up Adjustment Filing Date” is defined in Section 4.01(b)(iii) of the Servicing Agreement.
“Rating Agency” means, with respect to any Tranche of Environmental Trust Bonds, any of Moody’s, S&P or Fitch that provides a rating with respect to the Environmental Trust Bonds. If no such organization (or successor) is any longer in existence, “Rating Agency” shall be a nationally recognized statistical rating organization or other comparable Person designated by the Issuer, notice of which designation shall be given to the Indenture Trustee and the Servicer.
“Rating Agency Condition” means, with respect to any action, not less than ten (10) Business Days’ prior written notification to each Rating Agency of such action, and written confirmation from each of S&P and Moody’s to the Servicer, the Indenture Trustee and the Issuer that such action will not result in a suspension, reduction or withdrawal of the then current rating by such Rating Agency of any Tranche of Environmental Trust Bonds; provided, that, if, within such ten (10) Business Day period, any Rating Agency (other than S&P) has neither replied to such notification nor responded in a manner that indicates that such Rating Agency is reviewing and considering the notification, then (a) the Issuer shall be required to confirm that such Rating Agency has received the Rating Agency Condition request and, if it has, promptly request the related Rating Agency Condition confirmation and (b) if the Rating Agency neither replies to such notification nor responds in a manner that indicates it is reviewing and considering the notification within five (5) Business Days following such second (2nd) request, the applicable Rating Agency Condition requirement shall not be deemed to apply to such Rating Agency. For the purposes of this definition, any confirmation, request, acknowledgment or approval that is required to be in writing may be in the form of electronic mail or a press release (which may contain a general waiver of a Rating Agency’s right to review or consent).
“Reconciliation Period” means the twelve-month period commencing on January 1 of each year and ending on December 31 of each year; provided, however, that the initial Reconciliation Period shall commence on the Closing Date and end on December 31, 2021.
“Record Date” means, with respect to a Payment Date, in the case of Definitive Environmental Trust Bonds, the close of business on the last day of the calendar month preceding the calendar month in which such Payment Date occurs, and in the case of Book-Entry Environmental Trust Bonds, one Business Day prior to the applicable Payment Date.
“Registered Holder” means the Person in whose name an Environmental Trust Bond is registered on the Environmental Trust Bond Register.
“Regulation AB” means the rules of the SEC promulgated under Subpart 229.1100 — Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such may be amended from time to time.
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“Released Parties” is defined in Section 6.02(e) of the Servicing Agreement.
“Remittance Shortfall” means the amount, if any, calculated for a particular Reconciliation Period, by which EC Charge Collections received by the Servicer during such Reconciliation Period exceed Estimated EC Charge Collections remitted by the Servicer to the Collection Account during such Reconciliation Period.
“Required Capital Level” means an amount equal to 0.50% of the initial principal amount of the Environmental Trust Bonds, or such higher amount as may be set forth in the Series Supplement, deposited into the Capital Subaccount by the Member prior to or upon the issuance of the Environmental Trust Bonds.
“Requirements of Law” means any foreign, U.S. federal, state or local laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued or promulgated by any Governmental Authority or common law.
“Responsible Officer” means, with respect to: (a) the Issuer, any Manager or any duly authorized officer; (b) the Indenture Trustee, any officer within the Corporate Trust Office of such trustee (including the President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Treasurer, any Trust Officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by persons who at the time shall be such officers, respectively, and that has direct responsibility for the administration of the Indenture and also, with respect to a particular matter, any other officer to whom such matter is referred to because of such officer’s knowledge and familiarity with the particular subject); (c) any corporation (other than the Indenture Trustee), the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer or any other duly authorized officer of such Person who has been authorized to act in the circumstances; (d) any partnership, any general partner thereof; and (e) any other Person (other than an individual), any duly authorized officer or member of such Person, as the context may require, who is authorized to act in matters relating to such Person.
“Retirement of the Environmental Trust Bonds” means the day on which the final payment is made to the Indenture Trustee in respect of the last Outstanding Environmental Trust Bond.
“Return on Invested Capital” means, for any Payment Date with respect to any Collection Period, the sum of (i) the rate of return, payable to Wisconsin Electric, on its Capital Contribution equal to the interest rate on the environmental trust bonds (or, if there is more than one tranche, the interest rate on the longest maturing tranche of the environmental trust bonds), plus (ii) any return specified in clause (i) that is not paid on any prior Payment Date.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor thereto. References to S&P are effective so long as S&P is a Rating Agency.
“Sale Agreement” means the Environmental Control Property Purchase and Sale Agreement, dated as of May 12, 2021, by and between the Issuer and Wisconsin Electric.
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“Scheduled Final Payment Date” means, with respect to each Tranche of Environmental Trust Bonds, the date when all interest and principal is scheduled to be paid with respect to that Tranche in accordance with the Expected Amortization Schedule, as specified in the Series Supplement. For the avoidance of doubt, the Scheduled Final Payment Date with respect to any Tranche shall be the last Scheduled Payment Date set forth in the Expected Amortization Schedule relating to such Tranche. The “last Scheduled Final Payment Date” means the Scheduled Final Payment Date of the latest maturing Tranche of Environmental Trust Bonds.
“Scheduled Payment Date” means, with respect to each Tranche of Environmental Trust Bonds, each Payment Date on which principal for such Tranche is to be paid in accordance with the Expected Amortization Schedule for such Tranche.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Obligations” is defined in the Series Supplement.
“Secured Parties” means the Indenture Trustee, the Holders and any credit enhancer described in the Series Supplement.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Intermediary” means U.S. Bank National Association, a national banking association, solely in the capacity of a “securities intermediary” as defined in the NY UCC and Federal Book-Entry Regulations or any successor securities intermediary under the Indenture.
“Seller” is defined in the preamble to the Sale Agreement.
“Semi-Annual Servicer’s Certificate” is defined in Section 4.01(c)(ii) of the Servicing Agreement.
“Series Supplement” means the indenture supplemental to the Indenture in the form attached as Exhibit B to the Indenture that authorizes the issuance of the Environmental Trust Bonds.
“Servicer” means Wisconsin Electric, as Servicer under the Servicing Agreement, or any successor Servicer to the extent permitted under the Servicing Agreement.
“Servicer Business Day” means any day other than a Saturday, a Sunday or a holiday, on which the Servicer maintains normal office hours and conducts business.
“Servicer Default” is defined in Section 7.01 of the Servicing Agreement.
“Servicer Policies and Practices” is defined in Annex I to the Servicing Agreement.
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“Servicing Agreement” means the Environmental Control Property Servicing Agreement, dated as of May 12, 2021, by and between the Issuer and Wisconsin Electric.
“Servicing Fee” is defined in Section 6.06(a) of the Servicing Agreement.
“Servicing Standard” means the obligation of the Servicer to calculate, apply, remit and reconcile proceeds of the Environmental Control Property, including EC Charge Payments, and all other Environmental Trust Bond Collateral for the benefit of the Issuer and the Holders (a) with the same degree of care and diligence as the Servicer applies with respect to payments owed to it for its own account, (b) in accordance with all applicable procedures and requirements established by the PSCW for collection of electric utility tariffs and (c) in accordance with the other terms of the Servicing Agreement.
“Special Member” is defined in Section 1.02(b) of the LLC Agreement.
“Special Payment Date” means the date on which, with respect to any Tranche of Environmental Trust Bonds, any payment of principal of or interest (including any interest accruing upon default) on, or any other amount in respect of, the Environmental Trust Bonds of such Tranche that is not actually paid within five (5) days of the Payment Date applicable thereto is to be made by the Indenture Trustee to the Holders.
“Special Record Date” means, with respect to any Special Payment Date, the close of business on the fifteenth (15th) day (whether or not a Business Day) preceding such Special Payment Date.
“Sponsor” means Wisconsin Electric, in its capacity as “sponsor” of the Environmental Trust Bonds within the meaning of Regulation AB.
“State” means any one of the fifty states of the United States of America or the District of Columbia.
“State Pledge” means the pledge of the State of Wisconsin as set forth in 196.027(8) of the Statute.
“Statute” means Wisconsin Statutes Section 196.027.
“Subaccounts” is defined in Section 8.02(a) of the Indenture.
“Successor Servicer” is defined in Section 3.07(e) of the Indenture.
“Tariff” means the Tariff filed with the PSCW pursuant to the Statute to evidence the Environmental Control Charges pursuant to the Financing Order.
“Tax Returns” is defined in Section 1(a)(iii) of the Administration Agreement.
“Temporary Environmental Trust Bonds” means Environmental Trust Bonds executed and, upon the receipt of an Issuer Order, authenticated and delivered by the Indenture Trustee pending the preparation of Definitive Environmental Trust Bonds pursuant to Section 2.04 of the Indenture.
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“Termination Notice” is defined in Section 7.01 of the Servicing Agreement.
“Tranche” means any one of the groupings of Environmental Trust Bonds differentiated by payment date schedule, maturity date, interest rate or amortization schedule, as specified in the Series Supplement.
“True-Up Adjustment” means any Annual True-Up Adjustment, Interim True-Up Adjustment or Non-Routine True-Up Adjustment, as the case may be.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force on the Closing Date, unless otherwise specifically provided.
“UCC” means the Uniform Commercial Code as in effect in the relevant jurisdiction.
“Underwriters” means the underwriters who purchase Environmental Trust Bonds of any Tranche from the Issuer and sell such Environmental Trust Bonds in a public offering.
“Underwriting Agreement” means the Underwriting Agreement, dated May 4, 2021, by and among Wisconsin Electric, the representatives of the several Underwriters named therein and the Issuer.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the option of the issuer thereof.
“Weighted Average Days Outstanding” means the weighted average number of days Wisconsin Electric’s monthly bills to retail electric distribution customers remain outstanding during the calendar year immediately preceding the calculation thereof pursuant to Section 4.01(b)(i) or Section 4.01(b)(iii) of the Servicing Agreement. The initial Weighted Average Days Outstanding shall be 29 days until updated pursuant to Section 4.01(b)(i) or Section 4.01(b)(iii) of the Servicing Agreement.
“Wisconsin Electric” means Wisconsin Electric Power Company, a Wisconsin corporation, and any of its successors or permitted assigns.
“Wisconsin UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of Wisconsin.
B. Rules of Construction. Unless the context otherwise requires, in each Basic Document to which this Appendix A is attached or incorporated:
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(a) All accounting terms not specifically defined herein shall be construed in accordance with United States generally accepted accounting principles. To the extent that the definitions of accounting terms in any Basic Document are inconsistent with the meanings of such terms under generally accepted accounting principles or regulatory accounting principles, the definitions contained in such Basic Document shall control.
(b) The term “including” means “including without limitation”, and other forms of the verb “include” have correlative meanings.
(c) All references to any Person shall include such Person’s permitted successors and assigns, and any reference to a Person in a particular capacity excludes such Person in other capacities.
(d) Unless otherwise stated in any of the Basic Documents, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and each of the words “to” and “until” means “to but excluding”.
(e) The words “hereof”, “herein” and “hereunder” and words of similar import when used in any Basic Document shall refer to such Basic Document as a whole and not to any particular provision of such Basic Document. References to Articles, Sections, Appendices and Exhibits in any Basic Document are references to Articles, Sections, Appendices and Exhibits in or to such Basic Document unless otherwise specified in such Basic Document.
(f) The various captions (including the tables of contents) in each Basic Document are provided solely for convenience of reference and shall not affect the meaning or interpretation of any Basic Document.
(g) The definitions contained in this Appendix A apply equally to the singular and plural forms of such terms, and words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders.
(h) Unless otherwise specified, references to an agreement or other document include references to such agreement or document as from time to time amended, restated, reformed, supplemented or otherwise modified in accordance with the terms thereof (subject to any restrictions on such amendments, restatements, reformations, supplements or modifications set forth in such agreement or document) and include any attachments thereto.
(i) References to any law, rule, regulation or order of a Governmental Authority shall include such law, rule, regulation or order as from time to time in effect, including any amendment, modification, codification, replacement or reenactment thereof or any substitution therefor.
(j) The word “will” shall be construed to have the same meaning and effect as the word “shall”.
(k) The word “or” is not exclusive.
(l) All terms defined in the relevant Basic Document to which this Appendix A is attached shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein.
(m) A term has the meaning assigned to it.
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Exhibit 4.2
This SERIES SUPPLEMENT, dated as of May 12, 2021 (this “Supplement”), by and between WEPCo Environmental Trust Finance I, LLC, a limited liability company created under the laws of the State of Delaware (the “Issuer”), and U.S. Bank National Association (“Bank”), not in its individual capacity, but solely in its capacity as indenture trustee (the “Indenture Trustee”) for the benefit of the Secured Parties under the Indenture dated as of May 12, 2021, by and between the Issuer and Bank, in its capacity as Indenture Trustee and in its separate capacity as a securities intermediary (the “Indenture”).
PRELIMINARY STATEMENT
Section 9.01 of the Indenture provides, among other things, that the Issuer and the Indenture Trustee may at any time enter into an indenture supplemental to the Indenture for the purposes of authorizing the issuance by the Issuer of the Environmental Trust Bonds and specifying the terms thereof. The Issuer has duly authorized the creation of the Environmental Trust Bonds with an initial aggregate principal amount of $118,814,000 to be known as “Environmental Trust Bonds, Series 2021” (the “Environmental Trust Bonds”), and the Issuer and the Indenture Trustee are executing and delivering this Supplement in order to provide for the Environmental Trust Bonds.
All terms used in this Supplement that are defined in the Indenture, either directly or by reference therein, have the meanings assigned to them therein, except to the extent such terms are defined or modified in this Supplement or the context clearly requires otherwise. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Indenture, the terms and provisions of this Supplement shall govern.
GRANTING CLAUSE
With respect to the Environmental Trust Bonds, the Issuer hereby Grants to the Indenture Trustee, as Indenture Trustee for the benefit of the Secured Parties of the Environmental Trust Bonds, all of the Issuer’s right, title and interest (whether now owned or hereafter acquired or arising) in and to (a) the Environmental Control Property created under and pursuant to the Financing Order and the Statute, and transferred by the Seller to the Issuer pursuant to the Sale Agreement (including, to the fullest extent permitted by law, the right to impose, collect and receive Environmental Control Charges as provided in the Financing Order, the right to obtain True-Up Adjustments of the Environmental Control Charges as provided in the Financing Order and the Statute, and all revenues or other proceeds arising from those rights and interests), (b) all Environmental Control Charges related to the Environmental Control Property, (c) the Sale Agreement and the Bill of Sale executed in connection therewith and all property and interests in property transferred under the Sale Agreement and the Bill of Sale with respect to the Environmental Control Property and the Environmental Trust Bonds, (d) the Servicing Agreement, the Administration Agreement, any Intercreditor Agreement and any subservicing, agency, intercreditor, administration or collection agreements executed in connection therewith, to the extent related to the foregoing Environmental Control Property and the Environmental Trust Bonds, (e) the Collection Account, all subaccounts thereof and all amounts of cash, instruments, investment property or other assets on deposit therein or credited thereto from time to time and all financial assets and securities entitlements carried therein or credited thereto, (f) all rights to compel the Servicer to file for and obtain adjustments to the Environmental Control Charges in accordance with the Statute, the Financing Order or any Tariff filed in connection therewith, (g) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing, whether such claims, demands, causes and choses in action constitute Environmental Control Property, accounts, general intangibles, instruments, contract rights, chattel paper or proceeds of such items or any other form of property, (h) all accounts, chattel paper, deposit accounts, documents, general intangibles, goods, instruments, investment property, letters of credit, letters-of-credit rights, money, commercial tort claims and supporting obligations related to the foregoing, and (i) all payments on or under, and all proceeds in respect of, any or all of the foregoing, it being understood that the following do not constitute Environmental Trust Bond Collateral: (x) cash that has been released pursuant to the terms of the Indenture, including Section 8.02(e)(x) of the Indenture and, following retirement of all Outstanding Environmental Trust Bonds, pursuant to Section 8.02(e)(xii) of the Indenture, or (y) amounts deposited with the Issuer on the Closing Date, for payment of costs of issuance with respect to the Environmental Trust Bonds (together with any interest earnings thereon), it being understood that such amounts described in clause (x) and clause (y) above shall not be subject to Section 3.17 of the Indenture.
The foregoing Grant is made in trust to secure the payment of principal of and premium, if any, interest on, and any other amounts owing in respect of, the Environmental Trust Bonds and all fees, expenses, counsel fees and other amounts due and payable to the Indenture Trustee equally and ratably without prejudice, priority or distinction, except as expressly provided in the Indenture, to secure compliance with the provisions of the Indenture with respect to the Environmental Trust Bonds, all as provided in the Indenture and to secure the performance by the Issuer of all of its obligations under the Indenture (collectively, the “Secured Obligations”). The Indenture and this Supplement constitute a security agreement within the meaning of the Statute and under the UCC to the extent that the provisions of the UCC are applicable hereto. The foregoing Grant with respect to the Environmental Control Property created pursuant to the Financing Order is made in accordance with the requirements of Section 196.027(5)(b) of the Statute.
The Indenture Trustee, as indenture trustee on behalf of the Secured Parties of the Environmental Trust Bonds, acknowledges such Grant and accepts the trusts under this Supplement and the Indenture in accordance with the provisions of this Supplement and the Indenture.
SECTION 1. Designation. The Environmental Trust Bonds shall be designated generally as the Environmental Trust Bonds, Series 2021, issued in a single Tranche designated as Tranche A.
SECTION 2. Initial Principal Amount; Environmental Trust Bond Interest Rate; Scheduled Final Payment Date; Final Maturity Date. The Environmental Trust Bonds shall have the initial principal amount, bear interest at the rate per annum (the “Environmental Trust Bond Interest Rate”) and shall have the Scheduled Final Payment Date and the Final Maturity Date set forth below:
| Tranche | Initial Principal Amount | Environmental Trust Bond | Scheduled Final Payment Date | Final Maturity Date | ||||||
| A | $ | 118,814,000 | 1.578 | % | December 15, 2033 | December 15, 2035 | ||||
The Environmental Trust Bond Interest Rate shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3. Authentication Date; Payment Dates; Expected Amortization Schedule for Principal; Periodic Interest; Book-Entry Environmental Trust Bonds; Waterfall Caps.
(a) Authentication Date. The Environmental Trust Bonds that are authenticated and delivered by the Indenture Trustee to or upon the order of the Issuer on May 12, 2021 (the “Closing Date”) shall have as their date of authentication May 12, 2021.
(b) Payment Dates. The “Payment Dates” for the Environmental Trust Bonds are June 15 and December 15 of each year or, if any such date is not a Business Day, the next succeeding Business Day, commencing on December 15, 2021 (the “Initial Payment Date”) and continuing until the earlier of repayment of the Environmental Trust Bonds in full and the Final Maturity Date.
(c) Expected Amortization Schedule for Principal. Unless an Event of Default shall have occurred and be continuing, on each Payment Date, the Indenture Trustee shall distribute to the Holders of record as of the related Record Date amounts payable pursuant to Section 8.02(e) of the Indenture as principal; provided however, that in no event shall a principal payment pursuant to this Section 3(c) on the Environmental Trust Bonds on a Payment Date be greater than the amount necessary to reduce the Outstanding Amount of the Environmental Trust Bonds to the amount specified in the Expected Amortization Schedule which is attached as Schedule A hereto for such Payment Date.
(d) Periodic Interest. “Periodic Interest” will be payable on the Environmental Trust Bonds on each Payment Date in an amount equal to one-half of the product of (i) the applicable Environmental Trust Bond Interest Rate and (ii) the Outstanding Amount of the Environmental Trust Bonds as of the close of business on the preceding Payment Date after giving effect to all payments of principal made to the Holders of the Environmental Trust Bonds on such preceding Payment Date; provided, however, that, with respect to the Initial Payment Date, or if no payment has yet been made, interest on the outstanding principal balance will accrue from and including the Closing Date to, but excluding, the following Payment Date.
(e) Book-Entry Environmental Trust Bonds. The Environmental Trust Bonds shall be Book-Entry Environmental Trust Bonds, and the applicable provisions of Section 2.11 of the Indenture shall apply to the Environmental Trust Bonds.
(f) Waterfall Caps. The amount payable with respect to the Environmental Trust Bonds pursuant to Section 8.02(e)(i) of the Indenture shall not exceed $50,000 with respect to any Payment Date.
SECTION 4. Minimum Denominations. The Environmental Trust Bonds shall be issuable in denominations of $100,000 and integral multiples of $1,000 in excess thereof, except for one bond, which may be a smaller denomination (the “Minimum Denominations”).
SECTION 5. Delivery and Payment for the Environmental Trust Bonds; Form of the Environmental Trust Bonds. The Indenture Trustee shall deliver the Environmental Trust Bonds to the Issuer when authenticated in accordance with Section 2.03 of the Indenture. The Environmental Trust Bonds shall be in the form of Exhibit A hereto.
SECTION 6. Ratification of Indenture. As supplemented by this Supplement, the Indenture is in all respects ratified and confirmed and the Indenture, as so supplemented by this Supplement, shall be read, taken and construed as one and the same instrument. This Supplement amends, modifies and supplements the Indenture only insofar as it relates to the Environmental Trust Bonds.
SECTION 7. Counterparts. This Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The Issuer and Indenture Trustee agree that this Supplement may be electronically signed, that any digital or electronic signatures (including pdf, facsimile or electronically imaged signatures provided by DocuSign or any other digital signature provider as specified in writing to the Indenture Trustee) appearing on this Supplement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Supplement may be made by facsimile, email or other electronic transmission. The Issuer agrees to assume all risks arising out of the use of digital signatures and electronic methods of submitting such signatures to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting upon documents with unauthorized signatures and the risk of interception and misuse by third parties.
SECTION 8. Governing Law. This Supplement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the New York General Obligations Law and Sections 9-301 through 9-306 of the NY UCC), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws; provided, that, except as set forth in Section 8.02(b) of the Indenture, the creation, attachment and perfection of any Liens created under the Indenture in Environmental Control Property, and all rights and remedies of the Indenture Trustee and the Holders with respect to the Environmental Control Property, shall be governed by the laws of the State of Wisconsin.
SECTION 9. Issuer Obligation. No recourse may be taken directly or indirectly by the Holders with respect to the obligations of the Issuer on the Environmental Trust Bonds, under the Indenture or this Supplement or any certificate or other writing delivered in connection herewith or therewith, against (a) any owner of a beneficial interest in the Issuer (including Wisconsin Electric Power Company) or (b) any shareholder, partner, owner, beneficiary, officer, director, employee or agent of the Indenture Trustee, the Managers or any owner of a beneficial interest in the Issuer (including Wisconsin Electric Power Company) in its individual capacity, or of any successor or assign of any of them in their respective individual or corporate capacities, except as any such Person may have expressly agreed. Each Holder by accepting an Environmental Trust Bond specifically confirms the nonrecourse nature of these obligations and waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Environmental Trust Bonds.
SECTION 10. Indenture Trustee Disclaimer. The Indenture Trustee is not responsible for the validity or sufficiency of this Supplement or for the recitals contained herein.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Supplement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | |||
| as Issuer | |||
| By: | /s/ Scott J. Lauber | ||
| Name: | Scott J. Lauber | ||
| Title: | President | ||
| U.S. BANK NATIONAL ASSOCIATION, | |||
| not in its individual capacity, but solely in its capacity | |||
| as Indenture Trustee | |||
| By: | /s/ Nicholas Xeros | ||
| Name: | Nicholas Xeros | ||
| Title: | Assistant Vice President | ||
SCHEDULE A
EXPECTED AMORTIZATION SCHEDULE
OUTSTANDING PRINCIPAL BALANCE
| Date | Tranche A | |||
| Closing Date | $ | 118,814,000 | ||
| 12/15/2021 | $ | 114,686,952 | ||
| 6/15/2022 | $ | 110,327,728 | ||
| 12/15/2022 | $ | 105,934,109 | ||
| 6/15/2023 | $ | 101,505,825 | ||
| 12/15/2023 | $ | 97,042,601 | ||
| 6/15/2024 | $ | 92,544,163 | ||
| 12/15/2024 | $ | 88,010,232 | ||
| 6/15/2025 | $ | 83,440,528 | ||
| 12/15/2025 | $ | 78,834,769 | ||
| 6/15/2026 | $ | 74,192,671 | ||
| 12/15/2026 | $ | 69,513,947 | ||
| 6/15/2027 | $ | 64,798,307 | ||
| 12/15/2027 | $ | 60,045,461 | ||
| 6/15/2028 | $ | 55,255,115 | ||
| 12/15/2028 | $ | 50,426,973 | ||
| 6/15/2029 | $ | 45,560,737 | ||
| 12/15/2029 | $ | 40,656,107 | ||
| 6/15/2030 | $ | 35,712,779 | ||
| 12/15/2030 | $ | 30,730,448 | ||
| 6/15/2031 | $ | 25,708,807 | ||
| 12/15/2031 | $ | 20,647,545 | ||
| 6/15/2032 | $ | 15,546,350 | ||
| 12/15/2032 | $ | 10,404,906 | ||
| 6/15/2033 | $ | 5,222,896 | ||
| 12/15/2033 | $ | - | ||
EXHIBIT A
FORM OF TRANCHE A ENVIRONMENTAL TRUST BONDS
[Included in Exhibit 4.1]
Exhibit 5.1
| Troutman Pepper Hamilton Sanders LLP 600 Peachtree Street, Suite 3000 Atlanta, Georgia 30308 |
 |
May 12, 2021
Wisconsin Electric Power Company
WEPCo Environmental Trust Finance I, LLC
231 W. Michigan Street
Milwaukee, Wisconsin 53201
Re: Registration Statement on Form SF-1
Ladies and Gentlemen:
We have acted as counsel to Wisconsin Electric Power Company, a Wisconsin corporation (the “Company”), and WEPCo Environmental Trust Finance I, LLC, a Delaware limited liability company (the “Issuing Entity”), in connection with the Registration Statement on Form SF-1 (Registration Statement Nos. 333-252252 and 333-252252-01) filed on January 20, 2021, as amended by Amendment No. 1 filed on March 18, 2021, as further amended by Amendment No. 2 filed on April 16, 2021, as further amended by Amendment No. 3 filed on April 20, 2021, and as further amended by Amendment No. 4 filed on April 27, 2021 (together, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance of $118,814,000 aggregate principal amount of Environmental Trust Bonds, Series 2021 (the “Bonds”) of the Issuing Entity offered in such manner as described in the prospectus, dated May 4, 2021 (the “Prospectus”), as filed with the Commission pursuant to Rule 424(b)(1) under the Securities Act. The Bonds are being issued under an Indenture dated as of May 12, 2021 (the “Base Indenture”), between the Issuing Entity and U.S. Bank National Association, as indenture trustee (the “Indenture Trustee”), as supplemented by a Series Supplement dated May 12, 2021 (the “Series Supplement” and, together with the Base Indenture, the “Indenture”), between the Issuing Entity and the Indenture Trustee, each of which has been filed with the Commission as an exhibit to the Registration Statement.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions expressed below, we have examined and relied upon copies of the Registration Statement, and the exhibits filed therewith, and the Indenture. We have also examined the originals, or duplicates or certified or conformed copies, of such records, agreements, instruments and other documents and have made such other and further investigations as we have deemed relevant and necessary in connection with the opinions expressed herein. As to questions of fact material to this opinion, we have relied upon certificates of public officials and of officers and representatives of the Company and the Issuing Entity.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
| May 12,
2021 Page 2 |
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Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that:
1. The Issuing Entity is a limited liability company validly existing and in good standing under the laws of the State of Delaware.
2. The Issuing Entity has limited liability company power and authority to execute and deliver the Indenture, to authorize and issue the Bonds and to perform its obligations under the Indenture and the Bonds.
3. The Bonds are validly issued and binding obligations of the Issuing Entity.
Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief.
We express no opinion herein as to the law of any jurisdiction other than the law of the State of New York and the Limited Liability Company Act of the State of Delaware.
This opinion is limited to the matters stated in this letter, and no opinion may be implied or inferred beyond the matters expressly stated in this letter. This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in the law, including judicial or administrative interpretations thereof, that occur which could affect the opinions contained herein.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the statements with respect to our name under the heading “Legal Matters” in the Prospectus forming part of the Registration Statement. In giving the foregoing consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion may not be relied upon, furnished or quoted by you for any other purpose, without our prior written consent.
| Very truly yours, | |
| /s/ Troutman Pepper Hamilton Sanders LLP |
Exhibit 8.1
| Troutman Pepper Hamilton Sanders LLP 600 Peachtree Street NE, Suite 3000 Atlanta, GA 30308-2216 troutman.com |
 |
May 12, 2021
To the Parties Identified on Schedule I hereto
Re: WEPCo Environmental Trust Finance I, LLC Environmental Trust Bonds, Series 2021
Ladies and Gentlemen:
We have acted as special tax counsel to Wisconsin Electric Power Company (the “Company”) and WEPCo Environmental Trust Finance I, LLC (the “Issuing Entity”), in connection with the Registration Statement on Form SF-1 (File Nos. 333-252252 and 333-252252-01) (the “Registration Statement”) filed on January 20, 2021, as amended by Amendment No. 1 filed on March 18, 2021, as further amended by Amendment No. 2 filed on April 16, 2021, as further amended by Amendment No. 3 filed on April 20, 2021, and as further amended by Amendment No. 4 filed on April 27, 2021, in each case, with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”) including the prospectus dated May 4, 2021 (the “Prospectus”) filed pursuant to Rule 424(b)(1) under the Securities Act of 1933, as amended, relating to the registration thereunder of the Issuing Entity’s Environmental Trust Bonds, Series 2021 (the “Bonds”). The Bonds will be issued pursuant to an Indenture dated as of May 12, 2021 (the “Base Indenture”) among the Issuing Entity, as issuing entity, and U.S. Bank National Association (the “Indenture Trustee”), as indenture trustee, and a series supplement thereto dated as of May 12, 2021 (the “Series Supplement” and, together with the Base Indenture, the “Indenture”). Capitalized terms used and not defined herein have the respective meanings ascribed to them in the Prospectus. You have requested our opinion regarding certain United States federal income tax matters.
The Company is the sole member of Issuing Entity. The Bonds will represent obligations of Issuing Entity. The Bonds will be sold pursuant to an underwriting agreement, dated May 4, 2021, among the Issuing Entity, the Company, Barclays Capital Inc. and the other underwriters named therein (the “Underwriting Agreement”). As described in the Prospectus, in connection with the issuance of the Bonds, the Company and Issuing Entity have entered into (i) a Sale Agreement, dated as of May 12, 2021, for the sale of the Environmental Control Property to the Issuing Entity (the “Sale Agreement”), (ii) a Servicing Agreement, dated as of May 12, 2021, for the servicing of the Environmental Control Property owned by Issuing Entity (the “Servicing Agreement”), and (iii) an Administration Agreement, dated as of May 12, 2021, for the provision of administrative services to Issuing Entity (the “Administration Agreement” and, together with the Sale Agreement, the Servicing Agreement, the Indenture and the Underwriting Agreement, the “Transaction Documents”). The assets of Issuing Entity will consist primarily of the rights and interests under the Financing Order, including the right to receive Environmental Control Charges.
| Wisconsin Electric Power Company WEPCo Environment Trust I, LLC Page 2 |
|
As special tax counsel to the Company, we have examined and relied upon the Transaction Documents filed as exhibits to the Registration Statement and upon originals or copies, certified or otherwise identified to our satisfaction, of such additional agreements, instruments, certificates, records and other documents and have made such examination of law as we have deemed necessary or appropriate for the purpose of this opinion. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies or by facsimile or other means of electronic transmission and the authenticity of the originals of such latter documents. Our opinions are also based on the assumption that there are no agreements or understandings with respect to the transactions contemplated in the Transaction Documents other than those contained in the Transaction Documents and that all parties to the Transaction Documents will comply with the terms thereof, including all tax reporting requirements contained therein.
As to facts relevant to the opinions expressed herein and the other statements made herein, we have relied without independent investigation upon certificates and oral or written statements and representations of public officials and officers and other representatives of the Company.
Based on Revenue Procedure 2005-62, 2005-2 C.B. 507 and the assumptions and representations set forth in the Prospectus and the Transaction Documents, we are of the opinion that for United States federal income tax purposes, (1) the issuance of the Bonds will be a “qualifying securitization” within the meaning of Revenue Procedure 2005-62, (2) the Bonds will be characterized as obligations of the Company, (3) the Issuing Entity will not be subject to federal income tax as an entity separate from the Company (the Issuing Entity’s sole member), and (4) the Company will not be treated as recognizing gross income upon the issuance of the Bonds.
The opinions set forth herein are based upon the current provisions of the Internal Revenue Code of 1986, as amended, and Treasury Regulations issued or proposed thereunder, Revenue Rulings and other releases of the Internal Revenue Service (the “IRS”) and current case law, any of which can change at any time. Any such changes can apply retroactively and modify the legal conclusions on which the opinions set forth herein are based. The opinions expressed herein are limited as described above, and we do not express an opinion on any other legal or income tax aspect of the transactions contemplated by the Transaction Documents. In addition, you should be aware that our opinions will have no binding effect on the IRS or a court and should not be considered a guarantee of the ultimate outcome of any controversy. There can be no assurance that positions contrary to those stated herein may not be asserted by the IRS.
In rendering the foregoing opinions, we express no opinion on the laws of any jurisdiction other than the federal income tax laws of the United States. The opinions expressed and the statements made herein are expressed and made as of the date hereof and we assume no obligation to update this opinion or advise you of changes in legal authorities, facts (including the taking of any action by any party to the Transaction Documents pursuant to any opinion of counsel or waiver), assumptions or documents on which this opinion is based (or the effect thereof on the opinions expressed or the statements made herein) or any inaccuracy in any of the representations, warranties or assumptions upon which we have relied in rendering the opinions set forth herein unless we are specifically engaged to do so.
| Wisconsin Electric Power Company WEPCo Environment Trust I, LLC Page 3 |
|
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement and the incorporation thereof in the Registration Statement and the use of our name under the captions “Prospectus Summary – Federal Income Tax Status”, “Material U.S. Federal Income Tax Considerations”, and “Legal Matters” in the Prospectus. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the Commission. This opinion letter is not to be relied on, circulated, quoted, or otherwise referred to for any other purpose.
| Very truly yours, | |
| /s/ Troutman Pepper Hamilton Sanders LLP |
Exhibit 10.1
ENVIRONMENTAL CONTROL PROPERTY PURCHASE AND SALE AGREEMENT
by and between
WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC,
Issuer
and
WISCONSIN ELECTRIC POWER COMPANY,
Seller
Dated as of May 12, 2021
TABLE OF CONTENTS
| ARTICLE I. DEFINITIONS AND RULES OF CONSTRUCTION | 1 |
| SECTION 1.01. Definitions and Rules of Construction | 1 |
| ARTICLE II. TRANSFER OF ENVIRONMENTAL CONTROL PROPERTY | 2 |
| SECTION 2.01. Transfer of Environmental Control Property. | 2 |
| SECTION 2.02. Conditions to Transfer of Environmental Control Property | 3 |
| ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER | 4 |
| SECTION 3.01. Organization and Good Standing | 4 |
| SECTION 3.02. Due Qualification | 4 |
| SECTION 3.03. Power and Authority | 4 |
| SECTION 3.04. Binding Obligation | 4 |
| SECTION 3.05. No Violation | 5 |
| SECTION 3.06. No Proceedings | 5 |
| SECTION 3.07. Approvals | 5 |
| SECTION 3.08. The Environmental Control Property. | 5 |
| SECTION 3.09. Limitations on Representations and Warranties | 8 |
| ARTICLE IV. COVENANTS OF THE SELLER | 9 |
| SECTION 4.01. Existence | 9 |
| SECTION 4.02. No Liens | 9 |
| SECTION 4.03. Delivery of Collections | 9 |
| SECTION 4.04. Notice of Liens | 10 |
| SECTION 4.05. Compliance with Law | 10 |
| SECTION 4.06. Covenants Related to Environmental Trust Bonds and Environmental Control Property. | 10 |
| SECTION 4.07. Protection of Title | 11 |
| SECTION 4.08. Nonpetition Covenants | 12 |
| SECTION 4.09. Taxes | 12 |
| SECTION 4.10. Notice of Breach to Rating Agencies, Etc | 12 |
| SECTION 4.11. Use of Proceeds | 12 |
| SECTION 4.12. Further Assurances | 13 |
| ARTICLE V. THE SELLER | 13 |
| SECTION 5.01. Liability of Seller; Indemnities. | 13 |
| SECTION 5.02. Merger, Conversion or Consolidation of, or Assumption of the Obligations of, Seller | 15 |
| SECTION 5.03. Limitation on Liability of Seller and Others | 16 |
| ARTICLE VI. MISCELLANEOUS PROVISIONS | 16 |
| SECTION 6.01. Amendment. | 16 |
| SECTION 6.02. Notices | 17 |
| SECTION 6.03. Assignment | 18 |
| SECTION 6.04. Limitations on Rights of Third Parties | 18 |
| SECTION 6.05. Severability | 18 |
| SECTION 6.06. Separate Counterparts | 18 |
| SECTION 6.07. Headings | 18 |
| SECTION 6.08. Governing Law | 18 |
| SECTION 6.09. Assignment to Indenture Trustee | 18 |
| SECTION 6.10. Limitation of Liability | 19 |
| SECTION 6.11. Waivers | 19 |
EXHIBIT
| Exhibit A | Form of Bill of Sale |
This ENVIRONMENTAL CONTROL PROPERTY PURCHASE AND SALE AGREEMENT, dated as of May 12, 2021 (this “Sale Agreement”), is by and between WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, a Delaware limited liability company (the “Issuer”), and WISCONSIN ELECTRIC POWER COMPANY, a Wisconsin corporation (together with its successors in interest to the extent permitted hereunder, the “Seller”).
RECITALS
WHEREAS, the Issuer desires to purchase the Environmental Control Property created pursuant to the Statute and the Financing Order;
WHEREAS, the Seller is willing to sell its rights and interests under the Financing Order to the Issuer whereupon such rights and interests shall become the Environmental Control Property;
WHEREAS, the Issuer, in order to finance the purchase of the Environmental Control Property, will issue the Environmental Trust Bonds under the Indenture; and
WHEREAS, the Issuer, to secure its obligations under the Environmental Trust Bonds and the Indenture, will pledge, among other things, all right, title and interest of the Issuer in and to the Environmental Control Property and this Sale Agreement to the Indenture Trustee for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions and Rules of Construction.
(a) Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in that certain Indenture (including Appendix A thereto) dated as of the date hereof (the “Indenture”), between the Issuer and U.S. Bank National Association, in its capacity as indenture trustee (the “Indenture Trustee”) and in its separate capacity as a securities intermediary (the “Securities Intermediary”). Not all terms defined in Appendix A of the Indenture are used in this Sale Agreement. The rules of construction set forth in Appendix A of the Indenture shall apply to this Sale Agreement.
(b) Whenever used in this Sale Agreement, the following words and phrases shall have the following meanings:
“Bill of Sale” means a bill of sale substantially in the form of Exhibit A hereto delivered pursuant to Section 2.02(a).
“Losses” means (i) any and all amounts of principal and interest on the Environmental Trust Bonds not paid when due or when scheduled to be paid in accordance with their terms and the amounts of any deposits by or to the Issuer required to have been made in accordance with the terms of the Basic Documents or the Financing Order which are not made when so required and (ii) any and all other liabilities, obligations, losses, claims, damages, payments, costs or expenses of any kind whatsoever.
ARTICLE
II.
TRANSFER OF ENVIRONMENTAL CONTROL PROPERTY
SECTION 2.01. Transfer of Environmental Control Property.
(a) In consideration of the Issuer’s delivery to or upon the order of the Seller of $113,507,309, subject to the conditions specified in Section 2.02, the Seller does hereby irrevocably sell, assign and otherwise transfer to the Issuer, without recourse or warranty, except as set forth herein, all right, title and interest of the Seller in, to and under the Environmental Control Property (such sale, assignment and transfer of the Environmental Control Property includes, to the fullest extent permitted by the Statute, the right to impose, collect and receive Environmental Control Charges and the assignment of all revenues and proceeds of or arising from the Environmental Control Charges related to the Environmental Control Property, as the same may be adjusted from time to time). Such sale, assignment and transfer of the Environmental Control Property is hereby expressly stated to be a sale or other absolute transfer and, pursuant to Section 196.027(5)(c) of the Statute and the Financing Order, shall constitute a sale and absolute transfer of all of the Seller’s right, title and interest, in, to and under, and not a pledge of, or secured transaction relating to, the Seller’s right, title and interest, in, to and under the Environmental Control Property. The preceding sentence is the statement referred to in Section 196.027(5)(c) of the Statute. The Seller and the Issuer agree that after giving effect to the sale, assignment and transfer contemplated hereby the Seller has no right, title or interest in, to or under the Environmental Control Property to which a security interest could attach because (i) it has sold, assigned and transferred all right, title and interest in and to the Environmental Control Property to the Issuer, and (ii) as provided in Section 196.027(5)(c) of the Statute, after such transfer the Environmental Control Property is not subject to any claims of the Seller or the Seller’s creditors, other than creditors holding a prior security interest in the Environmental Control Property perfected under Section 196.027(5)(b) of the Statute. If such sale, assignment and transfer is held by any court of competent jurisdiction not to be an absolute transfer as provided in Section 196.027(5)(c) of the Statute, then such sale, assignment and transfer shall be treated as a pledge of the Environmental Control Property and as the creation of a security interest (within the meaning of the Statute and the applicable UCC) in the Environmental Control Property and, without prejudice to its position that it has absolutely transferred all of its rights in the Environmental Control Property to the Issuer, the Seller hereby grants a security interest in the Environmental Control Property to the Issuer (and to the Indenture Trustee for the benefit of the Secured Parties) to secure their respective rights under the Basic Documents to receive the Environmental Control Charges and all other Environmental Control Property (the “Back-Up Security Interest”).(b)Subject to Section 2.02, the Issuer does hereby purchase the Environmental Control Property from the Seller for the consideration set forth in this Section 2.01(a).
2
SECTION 2.02. Conditions to Transfer of Environmental Control Property. The obligation of the Seller to sell, and the obligation of the Issuer to purchase, the Environmental Control Property on the Closing Date shall be subject to the satisfaction of each of the following conditions:
(a) on or prior to the Closing Date, the Seller shall have delivered to the Issuer a duly executed Bill of Sale identifying the Environmental Control Property to be transferred on the Closing Date;
(b) on or prior to the Closing Date, the Seller shall have received the Financing Order creating the Environmental Control Property;
(c) as of the Closing Date, the Seller is not insolvent and will not have been made insolvent by such sale and the Seller is not aware of any pending insolvency with respect to itself;
(d) as of the Closing Date, the representations and warranties of the Seller set forth in this Sale Agreement shall be true and correct with the same force and effect as if made on the Closing Date (except to the extent that they relate to an earlier date); on and as of the Closing Date no breach of any covenant or agreement of the Seller contained in this Sale Agreement has occurred and is continuing; and no Servicer Default shall have occurred and be continuing;
(e) as of the Closing Date, (i) the Issuer shall have sufficient funds available to pay the purchase price for the Environmental Control Property to be transferred on such date and (ii) all conditions to the issuance of the Environmental Trust Bonds intended to provide such funds set forth in the Indenture shall have been satisfied or waived;
(f) on or prior to the Closing Date, the Seller shall have taken all action required to transfer to the Issuer ownership of the Environmental Control Property to be transferred on such date, free and clear of all Liens other than Liens created by the Issuer pursuant to the Basic Documents and to perfect such transfer, including, without limitation, filing any statements or filings under the Statute or the applicable UCC;
(g) the Seller shall have delivered to the Rating Agencies and the Issuer any Opinions of Counsel required by the Rating Agencies;
(h) the Seller shall have received and delivered to the Issuer and the Indenture Trustee an opinion or opinions of outside tax counsel (as selected by the Seller, and in form and substance reasonably satisfactory to the Issuer and the Underwriters) to the effect that (i) the Issuer will not be subject to U.S. federal income tax as an entity separate from its sole owner and that the Environmental Trust Bonds will be treated as debt of the Issuer’s sole owner for U.S. federal income tax purposes and (ii) for U.S. federal income tax purposes, the Seller will not be treated as recognizing gross income upon the issuance of the Environmental Trust Bonds;
(i) on and as of the Closing Date, each of the LLC Agreement, the Servicing Agreement, this Sale Agreement, the Indenture, the Financing Order and the Statute shall be in full force and effect;
(j) the Environmental Trust Bonds shall have received a rating or ratings required by the Financing Order;
3
(k) the Seller shall have delivered to the Indenture Trustee and the Issuer an Officer’s Certificate confirming the satisfaction of each condition precedent specified in this Section 2.02; and
(l) the Seller shall have received the purchase price for the Environmental Control Property.
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to Section 3.09, the Seller makes the following representations and warranties, as of the Closing Date, and the Seller acknowledges that the Issuer has relied thereon in acquiring the Environmental Control Property. The representations and warranties shall survive the sale, assignment and transfer of the Environmental Control Property to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture. The Seller agrees that (i) the Issuer may assign the right to enforce the following representations and warranties to the Indenture Trustee and (ii) the representations and warranties inure to the benefit of the Issuer and the Indenture Trustee.
SECTION 3.01. Organization and Good Standing. The Seller is a corporation duly organized, validly existing and in active status under the laws of the state of Wisconsin, with the requisite corporate power and authority to own its properties as such properties are currently owned and to conduct its business as such business is now conducted by it, and has the requisite corporate power and authority to obtain the Financing Order and own the rights and interests under the Financing Order and to sell and assign those rights and interests to the Issuer whereupon such rights and interests shall become “environmental control property” as defined in Section 196.027(1)(h) of the Statute.
SECTION 3.02. Due Qualification. The Seller is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, licenses or approvals (except where the failure to so qualify or obtain such licenses and approvals would not be reasonably likely to have a material adverse effect on the Seller’s business, operations, assets, revenues or properties).
SECTION 3.03. Power and Authority. The Seller has the requisite corporate power and authority to execute and deliver this Sale Agreement and to carry out its terms; and the execution, delivery and performance of obligations under this Sale Agreement have been duly authorized by all necessary corporate action on the part of the Seller under its organizational or governing documents and laws.
SECTION 3.04. Binding Obligation. This Sale Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject to applicable insolvency, reorganization, moratorium, fraudulent transfer and other laws relating to or affecting creditors’ or secured parties’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
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SECTION 3.05. No Violation. The consummation of the transactions contemplated by this Sale Agreement and the fulfillment of the terms hereof do not and will not: (a) conflict with or result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the Seller’s organizational documents or any indenture, or other material agreement or instrument to which the Seller is a party or by which it or any of its property is bound; or (b) result in the creation or imposition of any Lien upon any of the Seller’s properties pursuant to the terms of any such indenture, agreement or other instrument (other than any Lien that may be granted in the Issuer’s favor or any Lien under the Basic Documents or any Liens created by the Issuer pursuant to the Statute) or violate any existing law or any existing order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or its properties.
SECTION 3.06. No Proceedings. There are no proceedings pending and, to the Seller’s knowledge, there are no proceedings threatened and, to the Seller’s knowledge, there are no investigations pending or threatened, before any Governmental Authority having jurisdiction over the Seller or its properties involving or relating to the Seller or the Issuer or, to the Seller’s knowledge, any other Person: (a) asserting the invalidity of the Statute, the Financing Order, this Sale Agreement, any of the other Basic Documents or the Environmental Trust Bonds; (b) seeking to prevent the issuance of the Environmental Trust Bonds or the consummation of any of the transactions contemplated by this Sale Agreement or any of the other Basic Documents; (c) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, the Statute, the Financing Order, this Sale Agreement, any of the other Basic Documents or the Environmental Trust Bonds; or (d) seeking to adversely affect the federal income tax or state income or franchise tax classification of the Environmental Trust Bonds as debt.
SECTION 3.07. Approvals. Except for UCC financing statement filings and other filings under the Statute, no approval, authorization, consent, order or other action of, or filing with, any Governmental Authority is required in connection with the execution and delivery by the Seller of this Sale Agreement, the performance by the Seller of the transactions contemplated hereby or the fulfillment by the Seller of the terms hereof, except those that have been obtained or made and those that the Seller, in its capacity as Servicer under the Servicing Agreement, is required to make in the future pursuant to the Servicing Agreement.
SECTION 3.08. The Environmental Control Property.
(a) Information. Subject to Section 3.08(h) below, at the Closing Date, all written information, as amended or supplemented from time to time, provided by the Seller to the Issuer with respect to the Environmental Control Property (including the Expected Amortization Schedule and the Financing Order) is true and correct in all material respects.
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(b) Title. It is the intention of the parties hereto that the sale, assignment and transfer of the Environmental Control Property herein contemplated constitutes a sale or other absolute transfer of the Environmental Control Property from the Seller to the Issuer and that no interest in, or right or title to, the Environmental Control Property shall be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. No portion of the Environmental Control Property has been sold, transferred, assigned, pledged or otherwise conveyed by the Seller to any Person other than the Issuer, and, to the Seller’s knowledge (after due inquiry), no security agreement, financing statement or equivalent security or lien instrument listing the Seller as debtor covering all or any part of the Environmental Control Property is on file or of record in any jurisdiction, except such as may have been filed, recorded or made in favor of the Issuer or the Indenture Trustee in connection with the Basic Documents. The Seller has not authorized the filing of any financing statement against it that includes a description of Environmental Trust Bond Collateral including the Environmental Control Property other than any financing statement filed, recorded or made in favor of the Issuer or the Indenture Trustee in connection with the Basic Documents.
(c) Transfer Filings. On the Closing Date, immediately upon the sale hereunder, the Environmental Control Property shall be validly transferred and sold to the Issuer, and the Issuer shall own all of the Environmental Control Property free and clear of all Liens other than Liens created by the Issuer pursuant to the Indenture. All actions or filings, including filings under the Statute and the applicable UCC, necessary to give the Issuer a valid ownership interest in the Environmental Control Property have been taken or made. No further action is required to establish the Issuer’s ownership interest. All applicable filings also have been made to the extent required by applicable law in any jurisdiction to perfect the Back-Up Security Interest granted by the Seller to the Issuer.
(d) Financing Order; Other Approvals. On the Closing Date, under the laws of the State of Wisconsin and the United States in effect on the Closing Date: (i) the Financing Order pursuant to which the rights and interests of the Seller, including the right to impose, collect and receive the Environmental Control Charges and, in and to the Environmental Control Property transferred on such date have been created, is Final and in full force and effect; (ii) as of the issuance of the Environmental Trust Bonds, the Environmental Trust Bonds are entitled to the protections provided by the Statute and, accordingly, the Financing Order and the Environmental Control Charges are not revocable by the PSCW; (iii) under the terms of the Financing Order, the initial Environmental Control Charges shall become effective the first day of the first full month following the issuance of the Environmental Trust Bonds; (iv) the process by which the Financing Order creating the Environmental Control Property was adopted and approved, and the Financing Order and the Tariff themselves, comply with all applicable laws, rules and regulations; and (v) no other approval, authorization, consent, order or other action of, or filing with any Governmental Authority is required in connection with the creation of the Environmental Control Property transferred on such date, except those that have been obtained or made.
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(e) State Action. Under the Statute, the State of Wisconsin pledged to and agreed with the Holders not to take or permit any action that impairs the value of the Environmental Control Property or, except for the True-Up Adjustments, reduce, alter or impair the Environmental Control Charges that are imposed, collected and remitted for the benefit of the Holders until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with the Environmental Trust Bonds are paid or performed in full. Furthermore, under the contract clauses of the State of Wisconsin and United States constitutions, the State of Wisconsin, could not take any action of a legislative character, including the repeal or amendment of the Statute or the Financing Order that substantially impairs the value of the Environmental Control Property or, except for the True-Up Adjustments, substantially reduces, alters or impairs the Environmental Control Charges to be imposed, collected and remitted to the Issuer for the benefit of the Holders of the Environmental Trust Bonds, unless such action is a reasonable exercise of the sovereign powers of the State of Wisconsin and of a character reasonable and appropriate to further a significant and legitimate public purpose and, under the takings clauses of the State of Wisconsin and United States Constitution, the State of Wisconsin could not repeal or amend the Statute or the Financing Order or take any other action in contravention of the State Pledge, without paying just compensation to the Holders, as determined by a court of competent jurisdiction, if doing so would constitute a permanent appropriation of a substantial property interest of the Holders in the Environmental Control Property and deprives the Holders of their reasonable expectations arising from their investments in the Environmental Trust Bonds. There is no assurance, however, that, even if a court were to award just compensation, it would be sufficient to pay the full amount of principal of and interest on the Environmental Trust Bonds.
(f) Assumptions. On the Closing Date, based upon the information available to the Seller on such date, the assumptions used in calculating the Environmental Control Charges are reasonable and are made in good faith. Notwithstanding the foregoing, the Seller makes no representation or warranty, express or implied, that amounts actually collected arising from those Environmental Control Charges will in fact be sufficient to meet the payment obligations on the Environmental Trust Bonds or that the assumptions used in calculating such Environmental Control Charges will in fact be realized.
(g) Creation of Environmental Control Property. Upon the effectiveness of the Financing Order and the transfer of the Environmental Control Property pursuant to this Sale Agreement:
(i) For purposes of the Statute, the Environmental Control Property constitutes a present property right;
(ii) the Environmental Control Property consists of the right to impose, collect and receive Environmental Control Charges in an amount necessary to provide for recovery of the principal of and interest on the Environmental Trust Bonds and other Financing Costs, the right to obtain True-Up Adjustments of the Environmental Control Charges as provided in the Financing Order and the Statute, and all revenues or other proceeds arising from those rights and interests; and
(iii) the Environmental Control Property shall continue to exist until the Environmental Trust Bonds are paid in full and all Financing Costs have been recovered in full.
(h) Nature of Representations and Warranties. The representations and warranties set forth in this Section 3.08, insofar as they involve conclusions of law, are made not on the basis that the Seller purports to be a legal expert or to be rendering legal advice, but rather to reflect the parties’ good faith understanding of the legal basis on which the parties are entering into this Sale Agreement and the other Basic Documents and the basis on which the Holders are purchasing the Environmental Trust Bonds, and to reflect the parties’ agreement that, if such understanding turns out to be incorrect or inaccurate, the Seller will be obligated to indemnify the Issuer and its permitted assigns (to the extent required by and in accordance with Section 5.01), and that the Issuer and its permitted assigns will be entitled to enforce any rights and remedies under the Basic Documents on account of such inaccuracy to the same extent as if the Seller had breached any other representations or warranties hereunder.
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(i) Prospectus. As of the date hereof, the information describing the Seller under the caption “Review of the Environmental Control Property” and “Wisconsin Electric Power Company — The Depositor, Sponsor, Seller and Initial Servicer” in the prospectus dated May 4, 2021 relating to the Environmental Trust Bonds is true and correct in all material respects.
(j) Solvency. After giving effect to the sale of the Environmental Control Property hereunder, the Seller:
(i) is solvent and expects to remain solvent;
(ii) is adequately capitalized to conduct its business and affairs considering its size and the nature of its business and intended purpose;
(iii) is not engaged in nor does it expect to engage in a business for which its remaining property represents unreasonably small capital;
(iv) reasonably believes that it will be able to pay its debts as they come due; and
(v) is able to pay its debts as they mature and does not intend to incur, or believes that it will not incur, indebtedness that it will not be able to repay at its maturity.
(k) No Court Order. There is no order by any court providing for the revocation, alteration, limitation or other impairment of the Statute, the Financing Order, the Environmental Control Property or the Environmental Control Charges or any rights arising under any of them or that seeks to enjoin the performance of any obligations under the Financing Order.
(l) Survival of Representations and Warranties The representations and warranties set forth in this Section 3.08 shall survive the execution and delivery of this Sale Agreement and may not be waived by any party hereto except pursuant to a written agreement executed in accordance with Article VI and as to which the Rating Agency Condition has been satisfied.
SECTION 3.09. Limitations on Representations and Warranties. Without prejudice to any of the other rights of the parties, the Seller will not be in breach of any representation or warranty as a result of a change in law by means of any legislative enactment, constitutional amendment or voter referendum. THE SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT BILLED ENVIRONMENTAL CONTROL CHARGES WILL BE ACTUALLY COLLECTED FROM CUSTOMERS AND NO REPRESENTATION THAT AMOUNTS COLLECTED WILL BE SUFFICIENT TO MEET THE OBLIGATIONS ON THE ENVIRONMENTAL TRUST BONDS.
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ARTICLE
IV.
COVENANTS OF THE SELLER
SECTION 4.01. Existence. Subject to Section 5.02, so long as any of the Environmental Trust Bonds are Outstanding, the Seller (a) will keep in full force and effect its existence and remain in good standing or equivalent status under the laws of the jurisdiction of its organization, and (b) will obtain and preserve its qualification to do business, in each case to the extent that in each such jurisdiction such existence or qualification is or shall be necessary to protect the validity and enforceability of this Sale Agreement, the other Basic Documents to which the Seller is a party and each other instrument or agreement to which the Seller is a party necessary or appropriate to the proper administration of this Sale Agreement and the transactions contemplated hereby or to the extent necessary for the Seller to perform its obligations hereunder or thereunder.
SECTION 4.02. No Liens. Except for the transfers under this Sale Agreement or any Lien for the benefit of the Issuer, the Holders of the Environmental Trust Bonds or the Indenture Trustee, the Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on, any of the Environmental Control Property, or any interest therein, and the Seller shall defend the right, title and interest of the Issuer and of the Indenture Trustee, on behalf of the Secured Parties, in, to and under the Environmental Control Property against all claims of third parties claiming through or under the Seller. Wisconsin Electric, in its capacity as Seller, will not at any time assert any Lien against, or with respect to, any of the Environmental Control Property.
SECTION 4.03. Delivery of Collections.
(a) In the event that the Seller receives any EC Charge Collections or other payments in respect of the Environmental Control Charges or the proceeds thereof, other than in its capacity as the Servicer, the Seller agrees to pay to the Servicer, on behalf of the Issuer, all payments received by it in respect thereof as soon as practicable after receipt thereof. Prior to such remittance to the Servicer by the Seller, the Seller agrees that such amounts are held by it in trust for the Issuer and the Indenture Trustee.
(b) The Seller shall not become a party to any future (i) trade receivables purchase and sale arrangement or similar arrangement under which it sells all or any portion of its accounts receivables owing from Customers who are obligated to pay the Environmental Control Charges unless the Indenture Trustee, the Seller and the other parties to such arrangement shall have entered into an Intercreditor Agreement, substantially in the form of Exhibit D to the Indenture, with such changes as may be agreed among the parties thereto so long as such changes do not materially and adversely affect any Holder’s rights in and to any Environmental Trust Bond Collateral or otherwise under the Indenture, in connection therewith and the terms of the documentation evidencing such trade receivables purchase and sale arrangement or similar arrangement shall expressly exclude the Environmental Control Property (including the Environmental Control Charges) from any receivables or other assets pledged or sold under such arrangement or (ii) sale agreement selling to any other Affiliate property consisting of charges similar to the Environmental Control Charges sold pursuant to this Sale Agreement, payable by Customers pursuant to the Statute or any similar law, unless the Seller and the other parties to such arrangement shall have entered into such Intercreditor Agreement.
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SECTION 4.04. Notice of Liens. The Seller shall notify the Issuer and the Indenture Trustee promptly after becoming aware of any Lien on any of the Environmental Control Property, other than the transfers hereunder and any Lien pursuant to the Basic Documents, including the Lien in favor of the Indenture Trustee for the benefit of the Holders of the Environmental Trust Bonds.
SECTION 4.05. Compliance with Law. The Seller hereby agrees to comply with its organizational or governing documents and all laws, treaties, rules, regulations and determinations of any Governmental Authority applicable to it, except to the extent that failure to so comply would not materially adversely affect the Issuer’s or the Indenture Trustee’s interests in the Environmental Control Property or under any of the Basic Documents to which the Seller is a party or of Seller’s performance of its obligations under this Sale Agreement or under any of the other Basic Documents to which it is a party.
SECTION 4.06. Covenants Related to Environmental Trust Bonds and Environmental Control Property.
(a) So long as any of the Environmental Trust Bonds are Outstanding, the Seller shall treat the Environmental Control Property as the Issuer’s property for all purposes other than financial accounting or tax purposes.
(b) So long as any of the Environmental Trust Bonds are Outstanding, the Seller shall treat such Environmental Trust Bonds as debt of the Issuer and not that of the Seller, except for financial accounting and tax purposes. For U.S. federal income tax purposes and, to the extent consistent with applicable state, local and other tax law, for purposes of state, local or other taxes, so long as any of the Environmental Trust Bonds are Outstanding, the Seller agrees to treat such Environmental Trust Bonds as indebtedness of the Seller (as the sole owner of the Issuer) secured by the Environmental Trust Bond Collateral unless otherwise required by appropriate taxing authorities.
(c) So long as any of the Environmental Trust Bonds are Outstanding, the Seller shall disclose in its financial statements that the Issuer and not the Seller is the owner of the Environmental Control Property and that the assets of the Issuer are not available to pay creditors of the Seller or its Affiliates (other than the Issuer).
(d) So long as any of the Environmental Trust Bonds are Outstanding, the Seller shall not own or purchase any Environmental Trust Bonds.
(e) So long as the Environmental Trust Bonds are Outstanding, the Seller shall disclose the effects of all transactions between the Seller and the Issuer in accordance with generally accepted accounting principles.
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(f) The Seller agrees that, upon the sale by the Seller of the Environmental Control Property to the Issuer pursuant to this Sale Agreement, (i) to the fullest extent permitted by law, including applicable PSCW Regulations and the Statute, the Issuer shall have all of the rights originally held by the Seller with respect to the Environmental Control Property, including the right (subject to the terms of the Servicing Agreement) to exercise any and all rights and remedies to collect any amounts payable by any Customer in respect of the Environmental Control Property, notwithstanding any objection or direction to the contrary by the Seller (and the Seller agrees not to make any such objection or to take any such contrary action) and (ii) any payment by any Customer directly to the Issuer shall discharge such Customer’s obligations, if any, in respect of the Environmental Control Property to the extent of such payment, notwithstanding any objection or direction to the contrary by the Seller.
(g) So long as any of the Environmental Trust Bonds are Outstanding, (i) in all proceedings relating directly or indirectly to the Environmental Control Property, the Seller shall affirmatively certify and confirm that it has sold all of its rights and interests in and to such property (other than for financial accounting or tax purposes), (ii) the Seller shall not make any statement or reference in respect of the Environmental Control Property that is inconsistent with the ownership interest of the Issuer (other than for financial accounting or tax purposes), (iii) the Seller shall not take any action in respect of the Environmental Control Property except solely in its capacity as the Servicer thereof pursuant to the Servicing Agreement or as otherwise contemplated by the Basic Documents, (iv) the Seller shall not sell environmental control property under a separate financing order in connection with the issuance of additional environmental trust bonds unless the Rating Agency Condition shall have been satisfied, and (v) neither the Seller nor the Issuer shall take any action, file any tax return or make any election inconsistent with the treatment of the Issuer, for U.S. federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, as a disregarded entity that is not separate from the Seller (or, if relevant, from another sole owner of the Issuer).
SECTION 4.07. Protection of Title. The Seller shall execute and file such filings, including, without limitation, filings with the Wisconsin Department of Financial Institutions pursuant to the Statute, and cause to be executed and filed such filings, all in such manner and in such places as may be required by law to fully preserve, maintain, protect and perfect the ownership interest of the Issuer, and the back-up precautionary security interest of the Issuer pursuant to Section 2.01, and the first priority security interest of the Indenture Trustee in the Environmental Control Property, including, without limitation, all filings required under the Statute and the applicable UCC relating to the transfer of the ownership of the rights and interest in the Environmental Control Property by the Seller to the Issuer or the pledge of the Issuer’s interest in the Environmental Control Property to the Indenture Trustee. The Seller shall deliver or cause to be delivered to the Issuer and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. The Seller shall institute any action or proceeding necessary to compel performance by the PSCW, the State of Wisconsin or any of their respective agents of any of their obligations or duties under the Statute or the Financing Order and the Seller agrees to take such legal or administrative actions, including defending against or instituting and pursuing legal actions and appearing or testifying at hearings or similar proceedings, in each case as may be reasonably necessary (a) to seek to protect the Issuer and the Secured Parties from claims, state actions or other actions or proceedings of third parties which, if successfully pursued, would result in a breach of any representation set forth in Article III or any covenant set forth in Article IV and (b) to seek to block or overturn any attempts to cause a repeal of, modification of or supplement to the Statute or the Financing Order, or the rights of Holders of the Environmental Trust Bonds by legislative enactment or constitutional amendment that would be materially adverse to the Issuer or the Secured Parties or which would otherwise cause an impairment of the rights of the Issuer or the Secured Parties. The costs of any such actions or proceedings undertaken by the Seller will be reimbursed by the Issuer as an Operating Expense in accordance with the priorities set forth in Section 8.02(e) of the Indenture. The Seller’s obligations pursuant to this Section 4.07 shall survive and continue notwithstanding the fact that the payment of Operating Expenses pursuant to Section 8.02(e) of the Indenture may be delayed (it being understood that the Seller may be required to advance its own funds to satisfy its obligations hereunder).
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SECTION 4.08. Nonpetition Covenants. Notwithstanding any prior termination of this Sale Agreement or the Indenture, the Seller shall not, prior to the date which is one year and one day after the termination of the Indenture and payment in full of the Environmental Trust Bonds or any other amounts owed under the Indenture, petition or otherwise invoke or cause the Issuer to invoke the process of any Governmental Authority for the purpose of commencing or sustaining an involuntary case against the Issuer under any U.S. federal or state bankruptcy, insolvency or similar law, appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of the property of the Issuer, or ordering the winding up or liquidation of the affairs of the Issuer.
SECTION 4.09. Taxes. So long as any of the Environmental Trust Bonds are Outstanding, the Seller shall, and shall cause each of its subsidiaries to, pay all material taxes, assessments and governmental charges imposed upon it or any of its properties or assets or with respect to any of its franchises, business, income or property before any penalty accrues thereon if the failure to pay any such taxes, assessments and governmental charges would, after any applicable grace periods, notices or other similar requirements, result in a Lien on the Environmental Control Property; provided, that no such tax need be paid if the Seller or one of its Affiliates is contesting the same in good faith by appropriate proceedings promptly instituted and diligently conducted and if the Seller or such Affiliate has established appropriate reserves as shall be required in conformity with generally accepted accounting principles.
SECTION 4.10. Notice of Breach to Rating Agencies, Etc. Promptly after obtaining knowledge thereof, in the event of a breach in any material respect (without regard to any materiality qualifier contained in such representation, warranty or covenant) of any of the Seller’s representations, warranties or covenants contained herein, the Seller shall promptly notify the Issuer, the Indenture Trustee and the Rating Agencies of such breach. For the avoidance of doubt, any breach which would adversely affect scheduled payments on the Environmental Trust Bonds will be deemed to be a material breach for purposes of this Section 4.10.
SECTION 4.11. Use of Proceeds. The Seller shall use the proceeds of the sale of the Environmental Control Property in accordance with the Financing Order and the Statute.
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SECTION 4.12. Further Assurances. Upon the request of the Issuer, the Seller shall execute and deliver such further instruments and do such further acts as may be reasonably necessary to carry out the provisions and purposes of this Sale Agreement.
ARTICLE
V.
THE SELLER
SECTION 5.01. Liability of Seller; Indemnities.
(a) The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Sale Agreement.
(b) The Seller shall indemnify the Issuer and the Indenture Trustee (for the benefit of the Secured Parties) and each of their respective officers, directors, employees, trustees, managers and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than taxes imposed on Holders as a result of their ownership of an Environmental Trust Bond) that may at any time be imposed on or asserted against any such Person as a result of the sale of the Environmental Control Property to the Issuer, including any franchise, sales, gross receipts, general corporation, tangible personal property, privilege or license taxes, but excluding any taxes imposed as a result of a failure of such Person to withhold or remit taxes with respect to payments on any Environmental Trust Bond; it being understood that the Holders shall be entitled to enforce their rights against the Seller under this Section 5.01(b) solely through a cause of action brought for their benefit by the Indenture Trustee as set forth in the Indenture.
(c) The Seller shall indemnify the Issuer and the Indenture Trustee (for the benefit of the Secured Parties) and each of their respective officers, directors, employees, trustees, managers and agents for, and defend and hold harmless each such Person from and against, any and all taxes (other than taxes imposed on Holders as a result of their ownership of an Environmental Trust Bond) that may at any time be imposed on or asserted against any such Person as a result of the Issuer’s ownership and assignment of the Environmental Control Property, the issuance and sale by the Issuer of the Environmental Trust Bonds or the other transactions contemplated in the Basic Documents, including any franchise, sales, gross receipts, general corporation, tangible personal property, privilege or license taxes, but excluding any taxes imposed as a result of a failure of such Person to withhold or remit taxes with respect to payments on any Environmental Trust Bond.
(d) The Seller shall indemnify the Issuer, the Indenture Trustee (for the benefit of the Secured Parties) and each of their respective officers, directors, employees and agents for, and defend and hold harmless each such Person from and against, all Losses that may be imposed on, incurred by or asserted against each such Person, in each such case, as a result of the Seller’s breach of any of its representations, warranties or covenants contained in this Sale Agreement.
(e) Indemnification under Sections 5.01(b), 5.01(c), 5.01(d) and 5.01(f) shall include reasonable out-of-pocket fees and expenses of investigation and litigation (including reasonable attorneys’ fees and expenses), except as otherwise expressly provided in this Sale Agreement.
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(f) The Seller shall indemnify the Indenture Trustee (for itself) and each Independent Manager, and any of their respective officers, directors, employees and agents (each, an “Indemnified Person”), for, and defend and hold harmless each such Person from and against, any and all Losses incurred by any of such Indemnified Persons as a result of the Seller’s breach of any of its representations and warranties or covenants contained in this Sale Agreement, except to the extent of Losses either resulting from the willful misconduct, bad faith or gross negligence of such Indemnified Person or resulting from a breach of a representation or warranty made by such Indemnified Person in any of the Basic Documents that gives rise to the Seller’s breach. The Seller shall not be required to indemnify an Indemnified Person for any amount paid or payable by such Indemnified Person in the settlement of any action, proceeding or investigation without the prior written consent of the Seller, which consent shall not be unreasonably withheld. Promptly after receipt by an Indemnified Person of notice of the commencement of any action, proceeding or investigation, such Indemnified Person shall, if a claim in respect thereof is to be made against the Seller under this Section 5.01(f), notify the Seller in writing of the commencement thereof. Failure by an Indemnified Person to so notify the Seller shall relieve the Seller from the obligation to indemnify and hold harmless such Indemnified Person under this Section 5.01(f) only to the extent that the Seller suffers actual prejudice as a result of such failure. With respect to any action, proceeding or investigation brought by a third party for which indemnification may be sought under this Section 5.01(f), the Seller shall be entitled to conduct and control, at its expense and with counsel of its choosing that is reasonably satisfactory to such Indemnified Person, the defense of any such action, proceeding or investigation (in which case the Seller shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the Indemnified Person except as set forth below); provided, that the Indemnified Person shall have the right to participate in such action, proceeding or investigation through counsel chosen by it and at its own expense. Notwithstanding the Seller’s election to assume the defense of any action, proceeding or investigation, the Indemnified Person shall have the right to employ separate counsel (including local counsel), and the Seller shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the defendants in any such action include both the Indemnified Person and the Seller and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Seller, (ii) the Seller shall not have employed counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such action, (iii) the Seller shall authorize the Indemnified Person to employ separate counsel at the expense of the Seller or (iv) in the case of the Indenture Trustee, such action exposes the Indenture Trustee to a material risk of criminal liability or forfeiture or a Servicer Default has occurred and is continuing. Notwithstanding the foregoing, the Seller shall not be obligated to pay for the fees, costs and expenses of more than one separate counsel for the Indemnified Persons other than one local counsel, if appropriate.
(g) The Seller shall indemnify the Servicer (if the Servicer is not the Seller) for the costs of any action instituted by the Servicer pursuant to Section 5.02(d) of the Servicing Agreement which are not paid as Operating Expenses in accordance with the priorities set forth in Section 8.02(e) of the Indenture.
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(h) The remedies provided in this Sale Agreement are the sole and exclusive remedies against the Seller for breach of its representations and warranties in this Sale Agreement.
(i) Indemnification under this Section 5.01 shall survive any repeal of, modification of, or supplement to, or judicial invalidation of, the Statute or the Financing Order and shall survive the resignation or removal of the Indenture Trustee or the termination of this Sale Agreement and will rank pari passu with other general, unsecured obligations of the Seller. The Seller shall not indemnify any party under this Section 5.01 for any changes in law after the Closing Date, whether such changes in law are effected by means of any legislative enactment, any constitutional amendment or any final and non-appealable judicial decision.
SECTION 5.02. Merger, Conversion or Consolidation of, or Assumption of the Obligations of, Seller. Any Person (a) into which the Seller may be merged, converted or consolidated and which is a Permitted Successor, (b) that may result from any merger, conversion or consolidation to which the Seller shall be a party and which is a Permitted Successor, (c) that may succeed to the properties and assets of the Seller substantially as a whole and which is a Permitted Successor, (d) which results from the division of the Seller into two or more Persons and which is a Permitted Successor, or (e) which otherwise succeeds to all or substantially all of the retail electric distribution business of the Seller (a “Permitted Successor”) and which Person in any of the foregoing cases executes an agreement of assumption to perform all of the obligations of the Seller hereunder (including the Seller’s obligations under Section 5.01 incurred at any time prior to or after the date of such assumption), shall be the successor to the Seller under this Sale Agreement without further act on the part of any of the parties to this Sale Agreement; provided, however, that (i) immediately after giving effect to such transaction, no representation, warranty or covenant made pursuant to Article III or Article IV shall have been breached and, if the Seller is the Servicer, no Servicer Default and no event which, after notice or lapse of time, or both, would become a Servicer Default shall have occurred and be continuing, (ii) the Seller shall have delivered to the Issuer and the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel from external counsel stating that such consolidation, conversion, merger, division or succession and such agreement of assumption complies with this Section 5.02 and that all conditions precedent, if any, provided for in this Sale Agreement relating to such transaction have been complied with, (iii) the Seller shall have delivered to the Issuer, the Indenture Trustee and each Rating Agency an Opinion of Counsel from external counsel of the Seller either (A) stating that, in the opinion of such counsel, all filings to be made by the Seller and the Issuer, including filings with the PSCW pursuant to the Statute and the applicable UCC, have been executed and filed that are necessary to fully maintain the respective interests of the Issuer and the Indenture Trustee in the Environmental Control Property and reciting the details of such filings or (B) stating that, in the opinion of such counsel, no such action shall be necessary to maintain such interests, (iv) the Seller shall have delivered to the Issuer, the Indenture Trustee and each Rating Agency an Opinion of Counsel from independent tax counsel stating that, for U.S. federal income tax purposes, such consolidation, conversion, merger, division or succession and such agreement of assumption will not result in a material adverse U.S. federal income tax consequence to the Issuer or the Holders of Environmental Trust Bonds and (v) the Seller shall have given each Rating Agency prior written notice of such transaction. When any Person (or more than one Person) acquires the properties and assets of the Seller substantially as a whole or otherwise becomes the successor, by merger, conversion, consolidation, sale, transfer, lease or otherwise, to all or substantially all the assets of the retail electric distribution business of the Seller in accordance with the terms of this Section 5.02, then, upon satisfaction of all of the other conditions of this Section 5.02, the preceding Seller shall automatically and without further notice be released from all of its obligations hereunder.
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SECTION 5.03. Limitation on Liability of Seller and Others. The Seller and any director, officer, employee or agent of the Seller may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person, respecting any matters arising hereunder. Subject to Section 4.07, the Seller shall not be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its obligations under this Sale Agreement and that in its opinion may involve it in any expense or liability.
ARTICLE
VI.
MISCELLANEOUS PROVISIONS
SECTION 6.01. Amendment. This Sale Agreement may be amended in writing by the Seller and the Issuer with ten Business Days’ prior written notice given to the Rating Agencies, but without the consent of any of the Holders, (i) to cure any ambiguity, to correct or supplement any provisions in this Sale Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Sale Agreement or of modifying in any manner the rights of the Holders; provided, however, that such action shall not, as evidenced by an Officer’s Certificate delivered to the Issuer and the Indenture Trustee, adversely affect in any material respect the interests of any Holder or (ii) to conform the provisions hereof to the description of this Sale Agreement in the Prospectus.
In addition, this Sale Agreement may be amended in writing by the Seller and the Issuer with (i) the prior written consent of the Indenture Trustee, (ii) the satisfaction of the Rating Agency Condition, and (iii) if any amendment would adversely affect in any material respect the interest of any Holder of the Environmental Trust Bonds, the consent of a majority of the Holders of each affected Tranche of Environmental Trust Bonds. In determining whether a majority of Holders have consented, Environmental Trust Bonds owned by the Issuer, Seller or any Affiliate of the Issuer or Seller shall be disregarded, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such consent, the Indenture Trustee shall only be required to disregard any Environmental Trust Bonds it actually knows to be so owned. Promptly after the execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.
It shall not be necessary for the consent of Holders pursuant to this Section to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.
Notwithstanding the foregoing, in no event shall this Sale Agreement be amended without the approval of the PSCW if (1) such approval is required pursuant to Wis. Stat. § 196.52, or (2) such amendment would increase the ongoing Financing Costs of the Issuer.
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Prior to the execution of any amendment to this Sale Agreement, the Issuer and the Indenture Trustee shall be entitled to receive and rely upon (i) an Opinion of Counsel from external counsel of the Seller stating that the execution of such amendment is authorized or permitted by this Sale Agreement and that all conditions precedent have been satisfied and (ii) the Opinion of Counsel referred to in Section 3.01(c)(i) of the Servicing Agreement. The Issuer and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Indenture Trustee’s own rights, duties or immunities under this Sale Agreement or otherwise.
SECTION 6.02. Notices. Any notice, report or other communication given hereunder shall be in writing and shall be effective (i) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, (ii) upon receipt when sent by an overnight courier, (iii) on the date personally delivered to an authorized officer of the party to which sent or (iv) on the date transmitted by facsimile or other electronic transmission (including email) with a confirmation of receipt in all cases, addressed as follows:
(a) in the case of the Seller, to Wisconsin Electric Power Company, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2345, Email: [email protected];
(b) in the case of the Issuer, to WEPCo Environmental Trust Finance I, LLC, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2579, Email: [email protected];
(c) in the case of the Indenture Trustee, to the Corporate Trust Office;
(d) in the case of Fitch, to Fitch Ratings, Inc., 300 West 57th Street, New York, New York 10019, Attention: ABS Surveillance, Telephone: (212) 908-0500, Facsimile: (212) 908-0355, Email: [email protected] (all such notices to be delivered to Fitch in writing by email);
(e) in the case of Moody’s, to Moody’s Investor Services, Inc., ABS/RMBS Monitoring Department, 25th Floor, 7 World Trade Center, 250 Greenwich Street, New York, New York, Email: [email protected]; and
(f) in the case of S&P, to S&P Global Ratings, a division of S&P Global Inc., Structured Credit Surveillance, 55 Water Street, New York, New York 10041, Telephone: (212) 438-8991, Email: [email protected] (all such notices to be delivered to S&P in writing by email).
Each Person listed above may, by notice given in accordance herewith to the other Person or Persons listed above, designate any further or different address to which subsequent notices, reports and other communications shall be sent.
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SECTION 6.03. Assignment. Notwithstanding anything to the contrary contained herein, except as provided in Section 5.02, this Sale Agreement may not be assigned by the Seller.
SECTION 6.04. Limitations on Rights of Third Parties. The provisions of this Sale Agreement are solely for the benefit of the Seller, the Issuer, the Indenture Trustee (for the benefit of the Secured Parties) and the other Persons expressly referred to herein, and such Persons shall have the right to enforce the relevant provisions of this Sale Agreement. Nothing in this Sale Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Environmental Control Property or under or in respect of this Sale Agreement or any covenants, conditions or provisions contained herein.
SECTION 6.05. Severability. Any provision of this Sale Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remainder of such provision (if any) or the remaining provisions hereof (unless such construction shall be unreasonable), and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 6.06. Separate Counterparts. This Sale Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 6.07. Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
SECTION 6.08. Governing Law. This Sale Agreement shall be construed in accordance with the laws of the State of Wisconsin, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
SECTION 6.09. Assignment to Indenture Trustee. The Seller hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Secured Parties of all right, title and interest of the Issuer in, to and under this Sale Agreement, the Environmental Control Property and the proceeds thereof and the assignment of any or all of the Issuer’s rights hereunder to the Indenture Trustee for the benefit of the Secured Parties. For the avoidance of doubt, the Indenture Trustee is a third party beneficiary of this Sale Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
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SECTION 6.10. Limitation of Liability. It is expressly understood and agreed by the parties hereto that this Sale Agreement is executed and delivered by the Indenture Trustee, not individually or personally but solely as Indenture Trustee on behalf of the Secured Parties, in the exercise of the powers and authority conferred and vested in it. The Indenture Trustee in acting hereunder is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Indenture.
SECTION 6.11. Waivers. Any term or provision of this Sale Agreement may be waived, or the time for its performance may be extended, by the party or parties entitled to the benefit thereof; provided, however, that no such waiver delivered by the Issuer shall be effective unless the Indenture Trustee has given its prior written consent thereto. Any such waiver shall be validly and sufficiently authorized for the purposes of this Sale Agreement if, as to any party, it is authorized in writing by an authorized representative of such party, with prompt written notice of any such waiver to be provided to the Rating Agencies. The failure of any party hereto to enforce at any time any provision of this Sale Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Sale Agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Sale Agreement shall be held to constitute a waiver of any other or subsequent breach.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK}
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IN WITNESS WHEREOF, the parties hereto have caused this Sale Agreement to be duly executed by their respective officers as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC | |||
| as Issuer | |||
| By: | /s/ Scott J. Lauber | ||
| Name: Scott J. Lauber | |||
| Title: President | |||
| WISCONSIN ELECTRIC POWER COMPANY | |||
| as Seller | |||
| By: | /s/ Anthony L. Reese | ||
| Name: Anthony L. Reese | |||
| Title: Vice President and Treasurer | |||
| ACKNOWLEDGED AND ACCEPTED: | |||
U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity, |
|||
| By: | /s/ Nicholas Xeros | ||
| Name: Nicholas Xeros | |||
| Title: Assistant Vice President | |||
Signature Page to Environmental Control Property Purchase and Sale Agreement
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EXHIBIT A
FORM OF BILL OF SALE
See attached
21
BILL OF SALE
This Bill of Sale is being delivered pursuant to the Environmental Control Property Purchase and Sale Agreement, dated as of May 12, 2021 (the “Sale Agreement”), by and between Wisconsin Electric Power Company (the “Seller”) and WEPCo Environmental Trust Finance I, LLC (the “Issuer”). All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Sale Agreement.
In consideration of the Issuer’s delivery to or upon the order of the Seller of $113,507,309, the Seller does hereby irrevocably sell, assign and otherwise transfer to the Issuer, without recourse or warranty, except as set forth in the Sale Agreement, all right, title and interest of the Seller in, to and under the Environmental Control Property created or arising under the Financing Order dated November 17, 2020 issued by the Public Service Commission of Wisconsin under the Statute (such sale, assignment and transfer of the Environmental Control Property includes, to the fullest extent permitted by the Statute, the right to impose, collect and receive Environmental Control Charges and the assignment of all revenues, collections, claims, rights, payments, money or proceeds of or arising from the Environmental Control Charges related to the Environmental Control Property, as the same may be adjusted from time to time). Such sale, assignment and transfer of the Environmental Control Property is hereby expressly stated to be a sale or other absolute transfer and, pursuant to Section 196.027(5)(c) of the Statute and the Financing Order, shall constitute a sale and absolute transfer of all of the Seller’s right, title and interest, in, to and under, and not a pledge of, or secured transaction relating to, the Seller’s right, title and interest, in, to and under the Environmental Control Property. The preceding sentence is the statement referred to in Section 196.027(5)(c) of the Statute. The Seller and the Issuer agree that after giving effect to the sale, assignment and transfer contemplated hereby the Seller has no right, title or interest in, to or under the Environmental Control Property to which a security interest could attach because (i) it has sold, assigned and transferred all right, title and interest in and to the Environmental Control Property to the Issuer, and (ii) as provided in Section 196.027(5)(c) of the Statute, after such transfer the Environmental Control Property is not subject to any claims of the Seller or the Seller’s creditors, other than creditors holding a prior security interest in the Environmental Control Property perfected under Section 196.027(5)(b) of the Statute. If such sale, assignment and transfer is held by any court of competent jurisdiction not to be an absolute transfer as provided in Section 196.027(5)(c) of the Statute, then such sale, assignment and transfer shall be treated as a pledge of the Environmental Control Property and as the creation of a security interest (within the meaning of the Statute and the applicable UCC) in the Environmental Control Property and, without prejudice to its position that it has absolutely transferred all of its rights in the Environmental Control Property to the Issuer, the Seller hereby grants a security interest in the Environmental Control Property to the Issuer (and to the Indenture Trustee for the benefit of the Secured Parties) to secure their respective rights under the Basic Documents to receive the Environmental Control Charges and all other Environmental Control Property.
The Issuer does hereby purchase the Environmental Control Property from the Seller for the consideration set forth in the preceding paragraph.
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The Seller and the Issuer each acknowledge and agree that the purchase price for the Environmental Control Property sold pursuant to this Bill of Sale and the Sale Agreement is equal to its fair market value at the time of sale.
The Seller confirms that (i) each of the representations and warranties on the part of the Seller contained in the Sale Agreement are true and correct in all respects on the date hereof as if made on the date hereof and (ii) each condition precedent that must be satisfied under Section 2.02 of the Sale Agreement has been satisfied upon or prior to the execution and delivery of this Bill of Sale by the Seller.
This Bill of Sale may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
This Bill of Sale shall be construed in accordance with the laws of the State of Wisconsin, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such law.
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IN WITNESS WHEREOF, the Seller and the Issuer have duly executed this Bill of Sale as of this 12th day of May, 2021.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | ||
| as Issuer | ||
| By: | ||
| Name: Scott J. Lauber | ||
| Title: President | ||
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Seller | ||
| By: | ||
| Name: Anthony L. Reese | ||
| Title: Vice President and Treasurer | ||
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Exhibit 10.2
ENVIRONMENTAL CONTROL PROPERTY SERVICING AGREEMENT
by and between
WEPCO ENVIRONMENTAL TRUST FINANCE I,
LLC,
Issuer
and
WISCONSIN ELECTRIC POWER COMPANY,
Servicer
Dated as of May 12, 2021
TABLE OF CONTENTS
| Page | |
| ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION | 1 |
| Section 1.01 Definitions and Rules of Construction | 1 |
| ARTICLE II APPOINTMENT AND AUTHORIZATION | 1 |
| Section 2.01 Appointment of Servicer; Acceptance of Appointment | 1 |
| Section 2.02 Authorization | 2 |
| Section 2.03 Dominion and Control Over the Environmental Control Property | 2 |
| ARTICLE III ROLE OF SERVICER | 2 |
| Section 3.01 Duties of Servicer | 2 |
| Section 3.02 Servicing and Maintenance Standards | 5 |
| Section 3.03 Annual Reports on Compliance with Regulation AB | 5 |
| Section 3.04 Annual Report by Independent Registered Public Accountants | 6 |
| ARTICLE IV SERVICES RELATED TO TRUE-UP ADJUSTMENTS | 7 |
| Section 4.01 True-Up Adjustments | 7 |
| Section 4.02 Limitation of Liability | 10 |
| ARTICLE V THE ENVIRONMENTAL CONTROL PROPERTY | 11 |
| Section 5.01 Custody of Environmental Control Property Records | 11 |
| Section 5.02 Duties of Servicer as Custodian | 11 |
| Section 5.03 Custodian’s Indemnification | 12 |
| Section 5.04 Effective Period and Termination | 13 |
| ARTICLE VI THE SERVICER | 13 |
| Section 6.01 Representations and Warranties of Servicer | 13 |
| Section 6.02 Indemnities of Servicer; Release of Claims | 15 |
| Section 6.03 Binding Effect of Servicing Obligations | 17 |
| Section 6.04 Limitation on Liability of Servicer and Others | 17 |
| Section 6.05 Wisconsin Electric Not to Resign as Servicer | 18 |
| Section 6.06 Servicing Compensation | 18 |
| Section 6.07 Compliance with Applicable Law | 19 |
| Section 6.08 Access to Certain Records and Information Regarding Environmental Control Property | 20 |
| Section 6.09 Appointments | 20 |
| Section 6.10 No Servicer Advances | 20 |
| Section 6.11 Remittances | 20 |
| Section 6.12 Maintenance of Operations | 21 |
| ARTICLE VII DEFAULT | 21 |
| Section 7.01 Servicer Default | 21 |
| Section 7.02 Appointment of Successor | 23 |
| Section 7.03 Waiver of Past Defaults | 23 |
| Section 7.04 Notice of Servicer Default | 24 |
i
TABLE OF CONTENTS
(continued)
| Page | |
| Section 7.05 Cooperation with Successor | 24 |
| ARTICLE VIII MISCELLANEOUS PROVISIONS | 24 |
| Section 8.01 Amendment | 24 |
| Section 8.02 Maintenance of Accounts and Records | 25 |
| Section 8.03 Notices | 25 |
| Section 8.04 Assignment | 26 |
| Section 8.05 Limitations on Rights of Others | 26 |
| Section 8.06 Severability | 26 |
| Section 8.07 Separate Counterparts | 26 |
| Section 8.08 Headings | 26 |
| Section 8.09 Governing Law | 26 |
| Section 8.10 Assignment to Indenture Trustee | 27 |
| Section 8.11 Nonpetition Covenants | 27 |
| Section 8.12 Limitation of Liability | 27 |
| Section 8.13 Rule 17g-5 Compliance | 27 |
EXHIBITS
| Exhibit A | Form of Monthly Servicer’s Certificate |
| Exhibit B | Form of Semi-Annual Servicer’s Certificate |
| Exhibit C | Form of Regulation AB Servicer Certificate |
| Exhibit D | Form of Certificate of Compliance |
| Exhibit E | Expected Amortization Schedule |
ANNEXES
| Annex I | Servicing Procedures |
-ii-
This ENVIRONMENTAL CONTROL PROPERTY SERVICING AGREEMENT, dated as of May 12, 2021 (this “Servicing Agreement”), is by and between WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, a Delaware limited liability company, as issuer (the “Issuer”), and WISCONSIN ELECTRIC POWER COMPANY, a Wisconsin corporation, as servicer (the “Servicer”).
RECITALS
WHEREAS, pursuant to the Statute and the Financing Order, Wisconsin Electric Power Company, in its capacity as seller (the “Seller”), and the Issuer are concurrently entering into the Sale Agreement pursuant to which the Seller is selling and the Issuer is purchasing certain Environmental Control Property created pursuant to the Statute and the Financing Order described therein;
WHEREAS, in connection with its ownership of the Environmental Control Property and in order to collect the associated Environmental Control Charges, the Issuer desires to engage the Servicer to carry out the functions described herein and the Servicer desires to be so engaged;
WHEREAS, the Issuer desires to engage the Servicer to act on its behalf in obtaining Annual True-Up Adjustments, Non-Routine True-Up Adjustments and Interim True-Up Adjustments from the PSCW and the Servicer desires to be so engaged; and
WHEREAS, the EC Charge Collections initially will be commingled with other funds collected by the Servicer;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01 Definitions and Rules of Construction. Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to such terms in that certain Indenture (including Appendix A thereto) dated as of May 12, 2021 (the “Indenture”), between the Issuer and the U.S. Bank National Association, in its capacity as indenture trustee (the “Indenture Trustee”) and in its separate capacity as securities intermediary (the “Securities Intermediary”). Not all terms defined in Appendix A of the Indenture are used in this Servicing Agreement. The rules of construction set forth in Appendix A of the Indenture shall apply to this Servicing Agreement.
ARTICLE
II
APPOINTMENT AND AUTHORIZATION
Section 2.01 Appointment of Servicer; Acceptance of Appointment. The Issuer hereby appoints the Servicer, and the Servicer, as an independent contractor, hereby accepts such appointment, to perform the Servicer’s obligations pursuant to this Servicing Agreement on behalf of and for the benefit of the Issuer or any assignee thereof in accordance with the terms of this Servicing Agreement and applicable law. This appointment and the Servicer’s acceptance thereof may not be revoked except in accordance with the express terms of this Servicing Agreement.
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Section 2.02 Authorization. With respect to all or any portion of the Environmental Control Property, the Servicer shall be, and hereby is, authorized and empowered by the Issuer to (a) execute and deliver, on behalf of itself and/or the Issuer, as the case may be, any and all instruments, documents or notices, and (b) on behalf of itself and/or the Issuer, as the case may be, make any filing and participate in proceedings of any kind with any Governmental Authority, including with the PSCW. The Issuer shall execute and deliver to the Servicer such documents as have been prepared by the Servicer for execution by the Issuer and shall furnish the Servicer with such other documents as may be in the Issuer’s possession, in each case as the Servicer may determine to be necessary or appropriate to enable it to carry out its servicing and administrative duties hereunder. Upon the Servicer’s written request, the Issuer shall furnish the Servicer with any powers of attorney or other documents necessary or appropriate to enable the Servicer to carry out its duties hereunder.
Section 2.03 Dominion and Control Over the Environmental Control Property. Notwithstanding any other provision herein, the Issuer shall have dominion and control over the Environmental Control Property, and the Servicer, in accordance with the terms hereof, is acting solely as the servicing agent and custodian for the Issuer with respect to the Environmental Control Property and the Environmental Control Property Records. The Servicer shall not take any action that is not authorized by this Servicing Agreement, that would contravene the Statute, the PSCW Regulations or the Financing Order, that is not consistent with its customary procedures and practices or that shall impair the rights of the Issuer in the Environmental Control Property, in each case unless such action is required by applicable law or court or regulatory order.
ARTICLE
III
ROLE OF SERVICER
Section 3.01 Duties of Servicer. The Servicer, as agent for the Issuer, shall have the following duties:
(a) Duties of Servicer Generally.
(i) The Servicer’s duties in general shall include: management, servicing and administration of the Environmental Control Property; obtaining meter reads, calculating usage and demand; billing, collections and posting of all payments in respect of the Environmental Control Property; responding to inquiries by Customers, the PSCW or any other Governmental Authority with respect to the Environmental Control Property or Environmental Control Charges; delivering Bills to Customers; investigating and handling delinquencies (and furnishing reports with respect to such delinquencies to the Issuer), processing and depositing collections and making periodic remittances; furnishing periodic reports to the Issuer, the Indenture Trustee and the Rating Agencies; making all filings with the PSCW and taking such other action as may be necessary to perfect the Issuer’s ownership interests in and the Indenture Trustee’s first priority Lien on the Environmental Control Property; making all filings and taking such other action as may be necessary to perfect and maintain the perfection and priority of the Indenture Trustee’s Lien on all Environmental Trust Bond Collateral; selling as the agent for the Issuer, as its interests may appear, defaulted or written off accounts in accordance with the Servicer’s usual and customary practices; taking all necessary action in connection with True-Up Adjustments as set forth herein; and performing such other duties as may be specified under the Financing Order to be performed by it. Anything to the contrary notwithstanding, the duties of the Servicer set forth in this Servicing Agreement shall be qualified in their entirety by any PSCW Regulations, the Financing Order and the U.S. federal securities laws and the rules and regulations promulgated thereunder, including, without limitation, Regulation AB, as in effect at the time such duties are to be performed. Without limiting the generality of this Section 3.01(a)(i), in furtherance of the foregoing, the Servicer hereby agrees that it shall also have, and shall comply with, the duties and responsibilities relating to data acquisition, usage, demand and bill calculation, billing, customer service functions, collections, posting, payment processing and remittance set forth in Annex I attached hereto.
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(ii) PSCW Regulations Control. Notwithstanding anything to the contrary in this Servicing Agreement, the duties of the Servicer set forth in this Servicing Agreement shall be qualified and limited in their entirety by the Statute, the Financing Order and any PSCW Regulations as in effect at the time such duties are to be performed.
(b) Reporting Functions.
(i) Monthly Servicer’s Certificate. On or before the last Servicer Business Day of each month, the Servicer shall prepare and deliver to the Issuer, the Indenture Trustee and the Rating Agencies a written report substantially in the form of Exhibit A (a “Monthly Servicer’s Certificate”) setting forth certain information relating to EC Charge Collections received by the Servicer during the preceding Billing Period; provided, however, that, for any month in which the Servicer is required to deliver a Semi-Annual Servicer’s Certificate pursuant to Section 4.01(c)(ii), the Servicer shall prepare and deliver the Monthly Servicer’s Certificate no later than the date of delivery of such Semi-Annual Servicer’s Certificate.
(ii) Notification of Laws and Regulations. The Servicer shall immediately notify the Issuer, the Indenture Trustee and the Rating Agencies in writing of any Requirements of Law or PSCW Regulations hereafter promulgated that have a material adverse effect on the Servicer’s ability to perform its duties under this Servicing Agreement.
(iii) Other Information. Upon the reasonable request of the Issuer, the Indenture Trustee or any Rating Agency, the Servicer shall provide to the Issuer, the Indenture Trustee or such Rating Agency, as the case may be, any public financial information in respect of the Servicer, or any material information regarding the Environmental Control Property to the extent it is reasonably available to the Servicer, as may be reasonably necessary and permitted by law to enable the Issuer, the Indenture Trustee or the Rating Agencies to monitor the performance by the Servicer hereunder; provided, however, that any such request by the Indenture Trustee shall not create any obligation for the Indenture Trustee to monitor the performance of the Servicer. In addition, so long as any of the Environmental Trust Bonds are outstanding, the Servicer shall provide the Issuer and the Indenture Trustee, within a reasonable time after written request therefor, any information available to the Servicer or reasonably obtainable by it that is necessary to calculate the Environmental Control Charges applicable to each EC Rate Class.
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(iv) Preparation of Reports. The Servicer shall prepare and deliver such additional reports as required under this Servicing Agreement, including a copy of each Semi-Annual Servicer’s Certificate described in Section 4.01(c)(ii), the annual statements of compliance, attestation reports and other certificates described in Section 3.03 and the Annual Accountant’s Report described in Section 3.04. In addition, the Servicer shall prepare, procure, deliver and/or file, or cause to be prepared, procured, delivered or filed, any reports, attestations, exhibits, certificates or other documents required to be delivered or filed with the SEC (and/or any other Governmental Authority) by the Issuer or the Sponsor under the U.S. federal securities or other applicable laws or in accordance with the Basic Documents, including, but without limiting the generality of the foregoing, filing with the SEC, if applicable and required by applicable law, a copy or copies of (A) the Monthly Servicer’s Certificates described in Section 3.01(b)(i) (under Form 10-D or any other applicable form), (B) the Semi-Annual Servicer’s Certificates described in Section 4.01(c)(ii) (under Form 10-D or any other applicable form), (C) the annual statements of compliance, attestation reports and other certificates described in Section 3.03 and (D) the Annual Accountant’s Report (and any attestation required under Regulation AB) described in Section 3.04. In addition, the appropriate officer or officers of the Servicer shall (in its separate capacity as Servicer) sign the Sponsor’s annual report on Form 10-K (and any other applicable SEC or other reports, attestations, certifications and other documents), to the extent that the Servicer’s signature is required by, and consistent with, the U.S. federal securities laws and/or any other applicable law.
(c) Opinions of Counsel. The Servicer shall obtain and deliver to the Issuer and the Indenture Trustee:
(i) promptly after the execution and delivery of this Servicing Agreement and of each amendment hereto, an Opinion of Counsel from external counsel of the Issuer either (A) to the effect that, in the opinion of such counsel, all filings, including filings with the PSCW, the Wisconsin Department of Financial Institutions and the Delaware Secretary of State, that are necessary under the UCC and the Statute to perfect or maintain, as applicable, the Liens of the Indenture Trustee in the Environmental Control Property have been authorized, executed and filed, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) to the effect that, in the opinion of such counsel, no such action shall be necessary to preserve, protect and perfect such Liens; and
(ii) within ninety (90) days after the beginning of each calendar year beginning with the first calendar year beginning more than three (3) months after the date hereof, an Opinion of Counsel from external counsel of the Issuer, dated as of a date during such ninety (90)-day period, either (A) to the effect that, in the opinion of such counsel, all filings, including filings with the PSCW, the Wisconsin Department of Financial Institutions and the Delaware Secretary of State, have been executed and filed that are necessary under the UCC and the Statute to maintain the Liens of the Indenture Trustee in the Environmental Control Property, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) to the effect that, in the opinion of such counsel, no such action shall be necessary to preserve, protect and perfect such Liens.
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Each Opinion of Counsel referred to in Section 3.01(c)(i) or Section 3.01(c)(ii) above shall specify any action necessary (as of the date of such opinion) to be taken in the following year to perfect or maintain, as applicable, such interest or Lien.
Section 3.02 Servicing and Maintenance Standards. On behalf of the Issuer, the Servicer shall: (a) manage, service, administer and make collections in respect of the Environmental Control Property with reasonable care and in material compliance with applicable Requirements of Law, including all applicable PSCW Regulations and guidelines, using the same degree of care and diligence that the Servicer exercises with respect to similar assets for its own account and, if applicable, for others; (b) follow customary standards, policies and procedures for the retail electric distribution industry in Wisconsin in performing its duties as Servicer; (c) use all reasonable efforts, consistent with its customary servicing procedures, to enforce, and maintain rights in respect of, the Environmental Control Property and to bill and collect the Environmental Control Charges; (d) comply with Requirements of Law, including all applicable PSCW Regulations and guidelines, applicable to and binding on it relating to the Environmental Control Property; (e) file all PSCW notices described in the Statute and the Financing Order and file and maintain the effectiveness of UCC financing statements with respect to the property transferred under the Sale Agreement; and (f) take such other action on behalf of the Issuer to ensure that the Lien of the Indenture Trustee on the Environmental Trust Bond Collateral remains perfected and of first priority. The Servicer shall follow such customary and usual practices and procedures as it shall deem necessary or advisable in its servicing of all or any portion of the Environmental Control Property, which, in the Servicer’s judgment, may include the taking of legal action, at the Issuer’s expense but subject to the priority of payments set forth in Section 8.02(e) of the Indenture.
Section 3.03 Annual Reports on Compliance with Regulation AB.
(a) The Servicer shall deliver to the Issuer, the Indenture Trustee and the Rating Agencies, on or before the earlier of (a) March 31 of each year or (b) with respect to each calendar year during which the Sponsor’s annual report on Form 10-K is required to be filed in accordance with the Exchange Act and the rules and regulations thereunder, the date on which such annual report on Form 10-K is required to be filed in accordance with the Exchange Act and the rules and regulations thereunder, certificates from a Responsible Officer of the Servicer (i) containing, and certifying as to, the statements of compliance required by Item 1123 (or any successor or similar items or rule) of Regulation AB, as then in effect, and (ii) containing, and certifying as to, the statements and assessment of compliance required by Item 1122(a) (or any successor or similar items or rule) of Regulation AB, as then in effect. These certificates may be in the form of, or shall include the forms attached hereto as Exhibit C and Exhibit D, with, in the case of Exhibit C, such changes as may be required to conform to the applicable securities law.
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(b) The Servicer shall use commercially reasonable efforts to obtain, from each other party participating in the servicing function, any additional certifications as to the statements and assessment required under Item 1122 or Item 1123 of Regulation AB to the extent required in connection with the filing of the annual report on Form 10-K; provided, however, that a failure to obtain such certifications shall not be a breach of the Servicer’s duties hereunder. The parties acknowledge that the Indenture Trustee’s certifications shall be limited to the Item 1122 certifications described in Exhibit C of the Indenture.
(c) The initial Servicer, in its capacity as Sponsor, shall post on its or its parent company’s website and cause the Issuer to file with or furnish to the SEC, in periodic reports and other reports as are required from time to time under Section 13 or Section 15(d) of the Exchange Act, the information described in Section 3.07(g) of the Indenture to the extent such information is reasonably available to the Sponsor.
(d) Except to the extent permitted by applicable law, the initial Servicer, in its capacity as Sponsor, shall not voluntarily suspend or terminate its filing obligations as Sponsor with the SEC as described in Section 3.03(c).
Section 3.04 Annual Report by Independent Registered Public Accountants.
(a) The Servicer shall cause a firm of Independent registered public accountants (which may provide other services to the Servicer or the Seller) to prepare annually, and the Servicer shall deliver annually to the Issuer, the Indenture Trustee and the Rating Agencies on or before the earlier of (i) March 31 of each year, beginning March 31, 2022, or (ii) with respect to each calendar year during which the Issuer’s annual report on Form 10-K is required to be filed in accordance with the Exchange Act and the rules and regulations thereunder, the date on which such annual report on Form 10-K is required to be filed in accordance with the Exchange Act and the rules and regulations thereunder, a report (the “Annual Accountant’s Report”) regarding the Servicer’s assessment of compliance with the servicing criteria set forth in Item 1122(d) of Regulation AB during the immediately preceding twelve (12) months ended December 31 (or, in the case of the first Annual Accountant’s Report to be delivered on or before March 31, 2022, the period of time from the date of this Servicing Agreement until December 31, 2021), in accordance with paragraph (b) of Rule 13a-18 and Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB. In the event that the accounting firm providing such report requires the Indenture Trustee to agree or consent to the procedures performed by such firm, the Issuer shall direct the Indenture Trustee in writing to so agree; it being understood and agreed that the Indenture Trustee will deliver such letter of agreement or consent in conclusive reliance upon the direction of the Issuer, and the Indenture Trustee will not make any independent inquiry or investigation as to, and shall have no obligation or liability in respect of the sufficiency, validity or correctness of such procedures.
(b) The Annual Accountant’s Report shall also indicate that the accounting firm providing such report is independent of the Servicer in accordance with the rules of the Public Company Accounting Oversight Board and shall include any attestation report required under Item 1122(b) of Regulation AB (or any successor or similar items or rule), as then in effect.
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ARTICLE
IV
SERVICES RELATED TO TRUE-UP ADJUSTMENTS
Section 4.01 True-Up Adjustments. From time to time, until the Retirement of the Environmental Trust Bonds, the Servicer shall identify the need for Annual True-Up Adjustments, Mid-Year True-Up Adjustments, Quarterly True-Up Adjustments, Optional True-Up Adjustments and Non-Routine True-Up Adjustments and shall take all reasonable action to obtain and implement such True-Up Adjustments, all in accordance with the following:
(a) Expected Amortization Schedule. The Expected Amortization Schedule for the Environmental Trust Bonds is attached hereto as Exhibit E. If the Expected Amortization Schedule is revised, the Servicer shall send a copy of such revised Expected Amortization Schedule to the Issuer, the Indenture Trustee and the Rating Agencies promptly thereafter.
(b) True-Up Adjustments.
(i) Annual True-Up Adjustments and Filings. Each year until the Retirement of the Environmental Trust Bonds, no later than April 17, the Servicer shall: (A) update the data and assumptions underlying the calculation of the Environmental Control Charges, including projected electricity consumption and demand during the next Collection Period for each EC Rate Class, as applicable, and including Periodic Principal, interest and estimated expenses and fees of the Issuer to be paid during such period, the Weighted Average Days Outstanding and write-offs; (B) determine the Periodic Revenue Requirement and Periodic Billing Requirement for the next Collection Period based on such updated data and assumptions; (C) determine the Environmental Control Charges to be allocated to each EC Rate Class during the next Collection Period based on such Periodic Billing Requirement and the terms of the Financing Order, the Tariff and any other tariffs filed pursuant thereto and in doing so the Servicer shall use the method of allocating Environmental Control Charges then in effect, including as applicable, the result of the implementation of the most recent Non-Routine True-Up Adjustment; (D) make all required notice and other filings with the PSCW to reflect the revised Environmental Control Charges, including any Amendatory Tariff; and (E) take all reasonable actions and make all reasonable efforts to effect such Annual True-Up Adjustment by the the Annual True-Up Adjustment Date and to enforce the provisions of the Statute and the Financing Order. The Servicer shall implement the revised Environmental Control Charges, if any, resulting from such Annual True-Up Adjustment as of the Annual True-Up Adjustment Date.
(ii) Non-Routine True-Up Adjustments and Filings. Whenever the Servicer determines that the existing model for calculating the Environmental Control Charges should be amended or revised or the Servicer otherwise determines that circumstances warrant, the Servicer shall file a request with the PSCW designating the adjustments to such model and/or any corresponding adjustments to the Environmental Control Charges (collectively, a “Non-Routine True-Up Adjustment”), subject to the review and approval of the PSCW that such adjustment is necessary to ensure the timely recovery of all Environmental Control Costs and all Financing Costs, with such review and determination to occur within 45 days of the filing of the Non-Routine True-Up Adjustment Request. The Servicer shall take all reasonable actions and make all reasonable efforts to effect any Non-Routine True-Up Adjustment and to enforce the provisions of the Statute and the Financing Order.The Servicer shall implement the revised Environmental Control Charges, if any, resulting from such Non-Routine True-Up Adjustment as of the Non-Routine True-Up Adjustment Date.
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(iii) Mid-Year and Quarterly True-Up Adjustments and Filings. Each year until the Retirement of the Environmental Trust Bonds, no later than October 17 (the “Mid-Year True-Up Adjustment Filing Date”), and, if there are any Environmental Trust Bonds Outstanding following the last Scheduled Final Payment Date, no later than forty-five (45) days before each Quarterly True-Up Adjustment Date (the “Quarterly True-Up Adjustment Filing Dates”), the Servicer shall have (A) updated the data and assumptions underlying the calculation of the Environmental Control Charges, including projected electricity consumption and demand during the next Collection Period for each EC Rate Class, as applicable, and including Periodic Principal, interest and estimated expenses and fees of the Issuer to be paid during such period, the Weighted Average Days Outstanding and write-offs; (B) determined the Periodic Revenue Requirement and Periodic Billing Requirement for the next Collection Period based on such updated data and assumptions; and (C) based upon such updated data and requirements, forecasted whether EC Charge Collections together with available fund balances in the Excess Funds Subaccount, will be sufficient, (i) to make on a timely basis all scheduled payments of interest, principal and other amounts payable in respect of the Environmental Trust Bonds during such Collection Period and (ii) to maintain the Capital Subaccount at the Required Capital Level. If the Servicer determines that EC Charge Collections will not be sufficient for such purposes, the Servicer shall, no later than the Mid-Year True-Up Adjustment Filing Date or Quarterly True-Up Adjustment Filing Date, as applicable, (1) determine the Environmental Control Charges to be allocated to each EC Rate Class during the next Collection Period based on such Periodic Billing Requirement and the terms of the Financing Order and the Tariff, and in doing so the Servicer shall use the method of allocating Environmental Control Charges then in effect, including as applicable, the result of the implementation of the most recent Non-Routine True-Up Adjustment; (2) make all required notice and other filings with the PSCW to reflect the revised Environmental Control Charges, including any Amendatory Tariff; and (3) take all reasonable actions and make all reasonable efforts to effect such Interim True-Up Adjustment by the the Mid-Year True-Up Adjustment Date or Quarterly Adjustment Date, as applicable, and to enforce the provisions of the Statute and the Financing Order.
(iv) Optional True-Up Adjustments and Filings. In addition to the True-Up Adjustments described above in Sections 4.01(b)(i), 4.01(b)(ii) and 4.01(b)(iii), the Servicer may implement an Optional True-Up Adjustment (in the same manner as provided for the Mid-Year True-Up Adjustments) at any time (A) if the Servicer forecasts that EC Charge Collections during the current or succeeding Collection Period will be insufficient (1) to make all scheduled payments of principal and interest due in respect of any Environmental Trust Bonds on a timely basis during such Collection Period, or (2) to pay Operating Expenses on a timely basis, (B) to replenish any draws on the Capital Subaccount, or (C) generally to correct for any under-collection or over-collection in order to assure timely payment of the Environmental Trust Bonds.
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(c) Reports.
(i) Notification of Amendatory Tariff Filings and True-Up Adjustments. Whenever the Servicer files an Amendatory Tariff with the PSCW or implements revised Environmental Control Charges with notice to the PSCW without filing an Amendatory Tariff if permitted by the Financing Order, the Servicer shall send a copy of such filing or notice (together with a copy of all notices and documents which, in the Servicer’s reasonable judgment, are material to the adjustments effected by such Amendatory Tariff or notice) to the Issuer, the Indenture Trustee and the Rating Agencies concurrently therewith. If, for any reason any revised Environmental Control Charges are not implemented and effective on the applicable date set forth herein, the Servicer shall notify the Issuer, the Indenture Trustee and each Rating Agency by the end of the second Servicer Business Day after such applicable date.
(ii) Semi-Annual Servicer’s Certificate. Not later than five (5) Servicer Business Days prior to each Payment Date or Special Payment Date, the Servicer shall deliver a written report substantially in the form of Exhibit B hereto (the “Semi-Annual Servicer’s Certificate”) to the Issuer, the Indenture Trustee and the Rating Agencies, which shall include all of the following information (to the extent applicable and including any other information so specified in the Series Supplement) as to the Environmental Trust Bonds with respect to such Payment Date or Special Payment Date or the period since the previous Payment Date, as applicable:
(A) the amount of the payment to Holders allocable to principal, if any;
(B) the amount of the payment to Holders allocable to interest;
(C) the aggregate Outstanding Amount of the Environmental Trust Bonds, before and after giving effect to any payments allocated to principal reported under Section 4.01(c)(ii)(A);
(D) the difference, if any, between the amount specified in Section 4.01(c)(ii)(C) and the Outstanding Amount specified in the Expected Amortization Schedule;
(E) any other transfers and payments to be made on such Payment Date or Special Payment Date, including amounts paid to the Indenture Trustee and to the Servicer; and
(F) the amounts on deposit in the Capital Subaccount and the Excess Funds Subaccount, after giving effect to the foregoing payments.
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(iii) Reports to Customers.
(A) After each revised Environmental Control Charge has gone into effect pursuant to a True-Up Adjustment, the Servicer shall, to the extent and in the manner and time frame required by applicable PSCW Regulations, if any, cause to be prepared and delivered to Customers any required notices announcing such revised Envrironmental Control Charges.
(B) The Servicer shall comply with the requirements of the Financing Order and Tariff with respect to the identification of Environmental Control Charges on Bills.
Section 4.02 Limitation of Liability.
(a) The Issuer and the Servicer expressly agree and acknowledge that:
(i) In connection with any True-Up Adjustment, the Servicer is acting solely in its capacity as the servicing agent hereunder.
(ii) None of the Servicer, the Issuer or the Indenture Trustee is responsible in any manner for, and shall have no liability whatsoever as a result of, any action, decision, ruling or other determination made or not made, or any delay (other than any delay resulting from the Servicer’s failure to make any filings required by Section 4.01 in a timely and correct manner or any breach by the Servicer of its duties under this Servicing Agreement that adversely affects the Environmental Control Property or the True-Up Adjustments), by the PSCW in any way related to the Environmental Control Property or in connection with any True-Up Adjustment, the subject of any filings under Section 4.01, any proposed True-Up Adjustment or the approval of any revised Environmental Control Charges and the scheduled adjustments thereto.
(iii) Except to the extent that the Servicer is liable under Section 6.02, the Servicer shall have no liability whatsoever relating to the calculation of any revised Environmental Control Charges and the scheduled adjustments thereto, including as a result of any inaccuracy of any of the assumptions made in such calculation regarding expected energy consumption volume and demand and the Weighted Average Days Outstanding, write-offs and estimated expenses and fees of the Issuer, so long as the Servicer has acted in good faith and has not acted in a grossly negligent manner in connection therewith, nor shall the Servicer have any liability whatsoever as a result of any Person, including the Holders, not receiving any payment, amount or return anticipated or expected or in respect of any Environmental Trust Bond generally.
(b) Notwithstanding the foregoing, this Section 4.02 shall not relieve the Servicer of liability for any misrepresentation by the Servicer under Section 6.01 or for any breach by the Servicer of its other obligations under this Servicing Agreement.
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ARTICLE V
THE ENVIRONMENTAL CONTROL PROPERTY
Section 5.01 Custody of Environmental Control Property Records. To assure uniform quality in servicing the Environmental Control Property and to reduce administrative costs, the Issuer hereby revocably appoints the Servicer, and the Servicer hereby accepts such appointment, to act as the agent of the Issuer as custodian of any and all documents and records that the Servicer shall keep on file, in accordance with its customary procedures, relating to the Environmental Control Property, including copies of the Financing Order, Tariff and Amendatory Tariffs relating thereto and all documents filed with the PSCW in connection with any True-Up Adjustment and computational records relating thereto (collectively, the “Environmental Control Property Records”), which are hereby constructively delivered to the Indenture Trustee, as pledgee of the Issuer with respect to all Environmental Control Property.
Section 5.02 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Environmental Control Property Records on behalf of the Issuer and maintain such accurate and complete accounts, records and computer systems pertaining to the Environmental Control Property Records as shall enable the Issuer and the Indenture Trustee, as applicable, to comply with this Servicing Agreement, the Sale Agreement and the Indenture. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of care and diligence that the Servicer exercises with respect to comparable assets that the Servicer services for itself or, if applicable, for others. The Servicer shall promptly report to the Issuer, the Indenture Trustee and the Rating Agencies any failure on its part to hold the Environmental Control Property Records and maintain its accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Nothing herein shall be deemed to require an initial review or any periodic review by the Issuer or the Indenture Trustee of the Environmental Control Property Records. The Servicer’s duties to hold the Environmental Control Property Records set forth in this Section 5.02, to the extent the Environmental Control Property Records have not been previously transferred to a successor Servicer pursuant to ARTICLE VII, shall terminate one year and one day after the earlier of (i) the date on which the Servicer is succeeded by a successor Servicer in accordance with ARTICLE VII and (ii) the first date on which no Environmental Trust Bonds are Outstanding.
(b) Maintenance of and Access to Records. The Servicer shall maintain the Environmental Control Property Records at 231 West Michigan Street, Milwaukee, Wisconsin 53203, or at such other office as shall be specified to the Issuer and the Indenture Trustee by written notice at least thirty (30) days prior to any change in location. The Servicer shall make available for inspection, audit and copying to the Issuer and the Indenture Trustee or their respective duly authorized representatives, attorneys or auditors the Environmental Control Property Records at such times during normal business hours as the Issuer or the Indenture Trustee shall reasonably request and which do not unreasonably interfere with the Servicer’s normal operations. Nothing in this Section 5.02(b) shall affect the obligation of the Servicer to observe any applicable law (including any PSCW Regulation) prohibiting disclosure of information regarding Customers, and the failure of the Servicer to provide access to such information as a result of such obligation shall not constitute a breach of this Section 5.02(b).
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(c) Release of Documents. Upon instruction from the Indenture Trustee in accordance with the Indenture, the Servicer shall release any Environmental Control Property Records to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee, as the case may be, at such place or places as the Indenture Trustee may designate, as soon as practicable. Nothing in this Section 5.02(c) shall affect the obligation of the Servicer to observe any applicable law (including any PSCW Regulation) prohibiting disclosure of information regarding Customers, and the failure of the Servicer to provide access to such information as a result of such obligation shall not constitute a breach of this Section 5.02(c).
(d) Defending Environmental Control Property Against Claims. The Servicer, on behalf of the Issuer and the Holders, shall institute any action or proceeding necessary to compel performance by the PSCW and the State of Wisconsin of any of their obligations or duties under the Statute, the Financing Order or any True-Up Adjustment with respect to the Environmental Control Property, and the Servicer agrees to take such legal or administrative actions, including defending against or instituting and pursuing legal actions and appearing or testifying at hearings or similar proceedings, as may be reasonably necessary to block or overturn any attempts to cause a repeal of, modification of, or supplement to, the Statute or the Financing Order or the rights of holders of Environmental Control Property by executive action, legislative enactment, constitutional amendment or other means that would be adverse to Holders, the Issuer or the Indenture Trustee. In addition, in any proceeding related to the exercise of the power of eminent domain by any municipality to acquire any portion of Wisconsin Electric’s electric distribution facilities, the Servicer shall assert that the court ordering such condemnation must treat such municipality as a successor to Wisconsin Electric under the Statute and the Financing Order. The costs of any such action shall be payable from EC Charge Collections as an Operating Expense in accordance with the priorities set forth in Section 8.02(e) of the Indenture. The Servicer’s obligations pursuant to this Section 5.02 shall survive and continue notwithstanding the fact that the payment of Operating Expenses pursuant to Section 8.02(e) of the Indenture may be delayed (it being understood that the Servicer may be required to advance its own funds to satisfy its obligations hereunder).
Section 5.03 Custodian’s Indemnification. The Servicer as custodian shall indemnify the Issuer, any Independent Manager and the Indenture Trustee (for itself and for the benefit of the Holders) and each of their respective officers, directors, employees and agents for, and defend and hold harmless each such Person from and against, any and all liabilities, obligations, losses, damages, payments and claims, and reasonable costs or expenses, of any kind whatsoever (collectively, “Indemnified Losses”) that may be imposed on, incurred by or asserted against each such Person as the result of any grossly negligent act or omission in any way relating to the maintenance and custody by the Servicer, as custodian, of the Environmental Control Property Records; provided, however, that the Servicer shall not be liable for any portion of any such amount resulting from the willful misconduct, bad faith or gross negligence of the Issuer, any Independent Manager or the Indenture Trustee, as the case may be. Indemnification under this Section 5.03 shall survive resignation or removal of the Indenture Trustee or any Independent Manager and shall include reasonable out-of-pocket fees and expenses of investigation and litigation (including reasonable attorneys’ fees and expenses and reasonable fees, out-of-pocket expenses and costs incurred in connection with any action, claim or suit brought to enforce the Indenture Trustee’s right to indemnification).
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Section 5.04 Effective Period and Termination. The Servicer’s appointment as custodian shall become effective as of the Closing Date and shall continue in full force and effect until terminated pursuant to this Section 5.04. If the Servicer shall resign as Servicer in accordance with the provisions of this Servicing Agreement or if all of the rights and obligations of the Servicer shall have been terminated under Section 7.01, the appointment of the Servicer as custodian shall be terminated effective as of the date on which the termination or resignation of the Servicer is effective. Additionally, if not sooner terminated as provided above, the Servicer’s obligations as custodian shall terminate one year and one day after the date on which no Environmental Trust Bonds are Outstanding.
ARTICLE
VI
THE SERVICER
Section 6.01 Representations and Warranties of Servicer. The Servicer makes the following representations and warranties, as of the Closing Date, and as of such other dates as expressly provided in this Section 6.01, on which the Issuer and the Indenture Trustee are deemed to have relied in entering into this Servicing Agreement relating to the servicing of the Environmental Control Property. The representations and warranties shall survive the execution and delivery of this Servicing Agreement, the sale of the Environmental Control Property and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized, validly existing and is in good standing under the laws of the State of Wisconsin, with the requisite corporate power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted and to execute, deliver and carry out the terms of this Servicing Agreement, and had at all relevant times, and has, the requisite power, authority and legal right to service the Environmental Control Property and to hold the Environmental Control Property Records as custodian.
(b) Due Qualification. The Servicer is duly qualified to do business and is in good standing and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business (including the servicing of the Environmental Control Property as required by this Servicing Agreement) shall require such qualifications, licenses or approvals (except where the failure to so qualify would not be reasonably likely to have a material adverse effect on the Servicer’s business, operations, assets, revenues or properties or to its servicing of the Environmental Control Property).
(c) Power and Authority. The execution, delivery and performance of the terms of this Servicing Agreement have been duly authorized by all necessary corporate action on the part of the Servicer under its organizational or governing documents and laws.
(d) Binding Obligation. This Servicing Agreement constitutes a legal, valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other laws relating to or affecting creditors’ rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law.
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(e) No Violation. The consummation of the transactions contemplated by this Servicing Agreement and the fulfillment of the terms thereof will not: (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the organizational documents of the Servicer or any indenture or other agreement or instrument to which the Servicer is a party or by which it or any of its property is bound; (ii) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than any Lien that may be granted under the Basic Documents); or (iii) violate any existing law or any existing order, rule or regulation applicable to the Servicer of any Governmental Authority having jurisdiction over the Servicer or its properties.
(f) No Proceedings. There are no proceedings pending and, to the Servicer’s knowledge, there are no proceedings threatened and, to the Servicer’s knowledge, there are no investigations pending or threatened, before any Governmental Authority having jurisdiction over the Servicer or its properties involving or relating to the Servicer or the Issuer or, to the Servicer’s knowledge, any other Person: (i) asserting the invalidity of this Servicing Agreement or any of the other Basic Documents, (ii) seeking to prevent the issuance of the Environmental Trust Bonds or the consummation of any of the transactions contemplated by this Servicing Agreement or any of the other Basic Documents, (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, this Servicing Agreement, any of the other Basic Documents or the Environmental Trust Bonds or (iv) seeking to adversely affect the federal income tax or state income or franchise tax classification of the Environmental Trust Bonds as debt.
(g) Approvals. No governmental approval, authorization, consent, order or other action of, or filing with, any Governmental Authority is required in connection with the execution and delivery by the Servicer of this Servicing Agreement, the performance by the Servicer of the transactions contemplated hereby or the fulfillment by the Servicer of the terms hereof, except those that have been obtained or made, those that the Servicer is required to make in the future pursuant to Article IV and those that the Servicer may need to file in the future to continue the effectiveness of any financing statement filed under the UCC.
(h) Reports and Certificates. Each report and certificate delivered in connection with any filing made to the PSCW by the Servicer on behalf of the Issuer with respect to the Environmental Control Charges or True-Up Adjustments will constitute a representation and warranty by the Servicer that each such report or certificate, as the case may be, is true and correct in all material respects; provided, however, that, to the extent any such report or certificate is based in part upon or contains assumptions, forecasts or other predictions of future events, the representation and warranty of the Servicer with respect thereto will be limited to the representation and warranty that such assumptions, forecasts or other predictions of future events are reasonable based upon historical performance (and facts known to the Servicer on the date such report or certificate is delivered).
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Section 6.02 Indemnities of Servicer; Release of Claims.
(a) The Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Servicer under this Servicing Agreement.
(b) The Servicer shall indemnify the Issuer, the Indenture Trustee (for itself and for the benefit of the Holders) and any Independent Manager, and each of their respective trustees, officers, directors, employees and agents (each, an “Indemnified Person”), for, and defend and hold harmless each such Person from and against, any and all Indemnified Losses imposed on, incurred by or asserted against any such Person as a result of (i) the Servicer’s willful misconduct, bad faith or gross negligence in the performance of, or reckless disregard of, its duties or observance of its covenants under the Servicing Agreement or any Intercreditor Agreement, (ii) the Servicer’s material breach of any of its representations or warranties that results in a Servicer Default under this Servicing Agreement or any Intercreditor Agreement; and (iii) any litigation or related expenses relating to the Servicer’s status or obligations as Servicer (other than any proceeding the Servicer is required to institute under this Servicing Agreement), except to the extent of Indemnified Losses either resulting from the willful misconduct, bad faith or gross negligence of such Person seeking indemnification hereunder or resulting from a breach of a representation or warranty made by such Person seeking indemnification hereunder in any of the Basic Documents that gives rise to the Servicer’s breach.
(c) For purposes of Section 6.02(b), in the event of the termination of the rights and obligations of Wisconsin Electric (or any successor thereto pursuant to Section 6.03) as Servicer pursuant to Section 7.01, or a resignation by such Servicer pursuant to this Servicing Agreement, such Servicer shall be deemed to be the Servicer pending appointment of a successor Servicer pursuant to Section 7.02.
(d) Indemnification under this Section 6.02 shall survive any repeal of, modification of, or supplement to, or judicial invalidation of, the Statute or the Financing Order and shall survive the resignation or removal of the Indenture Trustee or any Independent Manager or the termination of this Servicing Agreement and shall include reasonable out-of-pocket fees and expenses of investigation and litigation (including reasonable attorneys’ fees and expenses and the reasonable fees, out-of-pocket expenses and costs incurred in connection with any action, claim or suit brought to enforce the Indenture Trustee’s right to indemnification).
(e) Except to the extent expressly provided in this Servicing Agreement or the other Basic Documents (including the Servicer’s claims with respect to the Servicing Fee, reimbursement for any Excess Remittance, reimbursement for costs incurred pursuant to Section 5.02(d) and the payment of the purchase price of Environmental Control Property), the Servicer hereby releases and discharges the Issuer, any Independent Manager and the Indenture Trustee, and each of their respective officers, directors and agents (collectively, the “Released Parties”), from any and all actions, claims and demands whatsoever, whenever arising, which the Servicer, in its capacity as Servicer or otherwise, shall or may have against any such Person relating to the Environmental Control Property or the Servicer’s activities with respect thereto, other than any actions, claims and demands arising out of the willful misconduct, bad faith or gross negligence of the Released Parties.
(f) The Servicer shall not be required to indemnify an Indemnified Person for any amount paid or payable by such Indemnified Person in the settlement of any action, proceeding or investigation without the written consent of the Servicer, which consent shall not be unreasonably withheld.
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(g) Promptly after receipt by an Indemnified Person of notice (or, in the case of the Indenture Trustee, receipt of notice by a Responsible Officer only) of the commencement of any action, proceeding or investigation, such Indemnified Person shall, if a claim in respect thereof is to be made against the Servicer under this Section 6.02, notify the Servicer in writing of the commencement thereof. Failure by an Indemnified Person to so notify the Servicer shall relieve the Servicer from the obligation to indemnify and hold harmless such Indemnified Person under this Section 6.02 only to the extent that the Servicer suffers actual prejudice as a result of such failure. With respect to any action, proceeding or investigation brought by a third party for which indemnification may be sought under this Section 6.02, the Servicer shall be entitled to conduct and control, at its expense and with counsel of its choosing that is reasonably satisfactory to such Indemnified Person, the defense of any such action, proceeding or investigation (in which case the Servicer shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the Indemnified Person except as set forth below); provided, that the Indemnified Person shall have the right to participate in such action, proceeding or investigation through counsel chosen by it and at its own expense. Notwithstanding the Servicer’s election to assume the defense of any action, proceeding or investigation, the Indemnified Person shall have the right to employ separate counsel (including local counsel), and the Servicer shall bear the reasonable fees, costs and expenses of such separate counsel, if (i) the defendants in any such action include both the Indemnified Person and the Servicer and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Servicer, (ii) the Servicer shall not have employed counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time after notice of the institution of such action, (iii) the Servicer shall authorize the Indemnified Person to employ separate counsel at the expense of the Servicer or (iv) in the case of the Indenture Trustee, such action exposes the Indenture Trustee to a material risk of criminal liability or forfeiture or a Servicer Default has occurred and is continuing. Notwithstanding the foregoing, the Servicer shall not be obligated to pay for the fees, costs and expenses of more than one separate counsel for the Indemnified Parties other than one local counsel, if appropriate. The Servicer will not, without the prior written consent of the Indemnified Person, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought under this Section 6.02 (whether or not the Indemnified Person is an actual or potential party to such claim or action) unless such settlement, compromise or consent includes an unconditional release of the Indemnified Person from all liability arising out of such claim, action, suit or proceeding.
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Section 6.03 Binding Effect of Servicing Obligations. The obligations to continue to provide service and to collect and account for Environmental Control Charges will be binding upon the Servicer and any successor (within the meaning of the Statute and as provided in the Financing Order) so long as the Environmental Control Charges have not been fully collected and posted. Any Person (a) into which the Servicer may be merged, converted or consolidated and which is a Permitted Successor, (b) that may result from any merger, conversion or consolidation to which the Servicer shall be a party and which is a Permitted Successor, (c) that may succeed to the properties and assets of the Servicer substantially as a whole and which is a Permitted Successor, (d) which results from the division of the Servicer into two or more Persons and which is a Permitted Successor, or (e) which otherwise is a Permitted Successor, which Person in any of the foregoing cases executes an agreement of assumption to perform all of the obligations of the Servicer hereunder, shall be the successor to the Servicer under this Servicing Agreement without further act on the part of any of the parties to this Servicing Agreement; provided, however, that (i) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 6.01 shall have been breached and no Servicer Default and no event which, after notice or lapse of time, or both, would become a Servicer Default shall have occurred and be continuing, (ii) the Servicer shall have delivered to the Issuer and the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel from external counsel stating that such consolidation, conversion, merger, division or succession and such agreement of assumption complies with this Section 6.03 and that all conditions precedent, if any, provided for in this Servicing Agreement relating to such transaction have been complied with, (iii) the Servicer shall have delivered to the Issuer, the Indenture Trustee and the Rating Agencies an Opinion of Counsel from external counsel of the Servicer either (A) stating that, in the opinion of such counsel, all filings to be made by the Servicer, including filings with the PSCW pursuant to the Statute and the UCC, have been executed and filed and are in full force and effect that are necessary to fully preserve, perfect and maintain the priority of the interests of the Issuer and the Liens of the Indenture Trustee in the Environmental Control Property and reciting the details of such filings or (B) stating that, in the opinion of such counsel, no such action shall be necessary to maintain such interests, (iv) the Servicer shall have delivered to the Issuer, the Indenture Trustee and the Rating Agencies an Opinion of Counsel from independent tax counsel stating that, for U.S. federal income tax purposes, such consolidation, conversion, merger, division or succession and such agreement of assumption will not result in a material adverse U.S. federal income tax consequence to the Issuer or the Holders of Environmental Trust Bonds and (v) the Servicer shall have given the Rating Agencies prior written notice of such transaction. When any Person (or more than one Person) acquires the properties and assets of the Servicer substantially as a whole or otherwise becomes the successor, by merger, conversion, consolidation, sale, transfer, lease or otherwise, to all or substantially all the assets of the retail electric distribution business of the Servicer in accordance with the terms of this Section 6.03, then, upon satisfaction of all of the other conditions of this Section 6.03, the preceding Servicer shall automatically and without further notice be released from all its obligations hereunder.
Section 6.04 Limitation on Liability of Servicer and Others.
(a) Except as otherwise provided under this Servicing Agreement, neither the Servicer nor any of the directors, officers, employees or agents of the Servicer shall be liable to the Issuer or any other Person for any action taken or for refraining from the taking of any action pursuant to this Servicing Agreement or for good faith errors in judgment; provided, however, that this provision shall not protect the Servicer or any such Person against any liability that would otherwise be imposed by reason of gross negligence, recklessness or willful misconduct in the performance of duties or by reason of reckless disregard of obligations and duties under this Servicing Agreement or any Intercreditor Agreement. The Servicer and any director, officer, employee or agent of the Servicer may rely in good faith on the advice of counsel reasonably acceptable to the Indenture Trustee or on any document of any kind, prima facie properly executed and submitted by any Person, respecting any matters arising under this Servicing Agreement.
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(b) Except as provided in this Servicing Agreement, including but not limited to Section 5.02(d), the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action relating to the Environmental Control Property that is not directly related to one of the Servicer’s enumerated duties in this Servicing Agreement or related to its obligation to pay indemnification, and that in its reasonable opinion may cause it to incur any expense or liability; provided, however, that the Servicer may, in respect of any Proceeding, undertake any action that is not specifically identified in this Servicing Agreement as a duty of the Servicer but that the Servicer reasonably determines is necessary or desirable in order to protect the rights and duties of the Issuer or the Indenture Trustee under this Servicing Agreement and the interests of the Holders and Customers under this Servicing Agreement.
Section 6.05 Wisconsin Electric Not to Resign as Servicer. Subject to the provisions of Section 6.03, Wisconsin Electric shall not resign from the obligations and duties hereby imposed on it as Servicer under this Servicing Agreement except upon either (a) a determination by Wisconsin Electric that the performance of its duties under this Servicing Agreement shall no longer be permissible under applicable law, or (b) satisfaction of the following: (i) the Rating Agency Condition shall have been satisfied and (ii) the PSCW shall have approved of such resignation. Notice of any such determination permitting the resignation of Wisconsin Electric shall be communicated to the Issuer, the PSCW, the Indenture Trustee and each Rating Agency at the earliest practicable time (and, if such communication is not in writing, shall be confirmed in writing at the earliest practicable time), and any such determination shall be evidenced by an Opinion of Counsel to such effect delivered to the Issuer, the PSCW and each Indenture Trustee concurrently with or promptly after such notice. No such resignation shall become effective until a successor Servicer shall have assumed the responsibilities and obligations of Wisconsin Electric in accordance with Section 7.02.
Section 6.06 Servicing Compensation.
(a) In consideration for its services hereunder, until the Retirement of the Environmental Trust Bonds, the Servicer shall receive an annual fee (the “Servicing Fee”) in an amount equal to (i) 0.05% of the aggregate initial principal amount of all Environmental Trust Bonds for so long as Wisconsin Electric or an Affiliate of Wisconsin Electric is the Servicer or (ii) if Wisconsin Electric or any of its Affiliates is not the Servicer, an amount agreed upon by the Successor Servicer and the Indenture Trustee, provided, that the annual Servicing Fee shall not exceed 0.60% of the aggregate initial principal amount of all Environmental Trust Bonds, unless the PSCW has approved the appointment of the Successor Servicer or the PSCW does not act to either approve or disapprove such appointment on or before the date which is 45 days after notice of the proposed appointment of the Successor Servicer is provided to the PSCW in the same manner substantially as provided in Section 8.01(c). The Servicing Fee owing shall be calculated based on the initial principal amount of the Environmental Trust Bonds and shall be paid semi-annually, with half of the Servicing Fee being paid on each Payment Date, except for the amount of the Servicing Fee to be paid on the first Payment Date in which the Servicing Fee then due will be calculated based on the number of days that this Servicing Agreement has been in effect. The Servicer also shall be entitled to retain as additional compensation (i) any interest earnings on EC Charge Collections received by the Servicer and invested by the Servicer during each Billing Period prior to remittance to the Collection Account, and (ii) all late payment charges, if any, collected from Customers. In addition, the Servicer shall be entitled to be reimbursed by the Issuer for filing fees and fees and expenses for attorneys, accountants, printing or other professional services retained by the Issuer and paid for by the Servicer (or procured by the Servicer on behalf of the Issuer and paid for by the Servicer) to meet the Issuer’s obligations under the Basic Documents (“Reimbursable Expenses”). Except for such Reimbursable Expenses, the Servicer shall be required to pay all other costs and expenses incurred by the Servicer in performing its activities hereunder (but, for the avoidance of doubt, excluding any such costs and expenses incurred by Wisconsin Electric in its capacity as Administrator). It is expressly acknowledged that the payment of fees to the Rating Agencies shall be at the expense of the Issuer and that, if the Servicer advances such payments to the Rating Agencies, the Issuer shall reimburse the Servicer for any such advances.
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(b) The Servicing Fee set forth in Section 6.06(a) shall be paid to the Servicer by the Indenture Trustee, on each Payment Date in accordance with the priorities set forth in Section 8.02(e) of the Indenture, by wire transfer of immediately available funds from the Collection Account to an account designated by the Servicer. Any portion of the Servicing Fee not paid on any such date shall be added to the Servicing Fee payable on the subsequent Payment Date. In no event shall the Indenture Trustee be liable for the payment of any Servicing Fee or other amounts specified in this Section 6.06; provided, that this Section 6.06 does not relieve the Indenture Trustee of any duties it has to allocate funds for payment for such fees under Section 8.02 of the Indenture.
(c) The Servicer and the Issuer acknowledge and agree that the Servicer’s EC Charge Collections on some days might exceed the Servicer’s Estimated EC Charge Collections, and that the Servicer’s EC Charge Collections on other days might be less than the Servicer’s Estimated EC Charge Collections. The Servicer and the Issuer further acknowledge and agree that the amount of these variances are likely to be small and are not likely to be biased in favor of over-remittances or under-remittances. Consequently, so long as the Servicer faithfully makes all remittances based on Weighted Average Days Outstanding, as provided for herein, the Servicer and the Issuer agree that no actual or deemed investment earnings shall be payable in respect of such over-remittances or under-remittances.
(d) The foregoing Servicing Fee constitutes a fair and reasonable compensation for the obligations to be performed by the Servicer. Such Servicing Fee shall be determined without regard to the income of the Issuer, shall not be deemed to constitute distributions to the recipient of any profit, loss or capital of the Issuer and shall be considered a fixed Operating Expense of the Issuer subject to the limitations on such expenses set forth in the Financing Order.
Section 6.07 Compliance with Applicable Law. The Servicer covenants and agrees, in servicing the Environmental Control Property, to comply in all material respects with all laws applicable to, and binding upon, the Servicer and relating to the Environmental Control Property, the noncompliance with which would have a material adverse effect on the value of the Environmental Control Property; provided, however, that the foregoing is not intended to, and shall not, impose any liability on the Servicer for noncompliance with any Requirements of Law that the Servicer is contesting in good faith in accordance with its customary standards and procedures.
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Section 6.08 Access to Certain Records and Information Regarding Environmental Control Property. The Servicer shall provide to the Indenture Trustee access to the Environmental Control Property Records as is reasonably required for the Indenture Trustee to perform its duties and obligations under the Indenture and the other Basic Documents, and shall provide access to such records to the Holders as required by applicable law. Access shall be afforded without charge, but only upon reasonable request and during normal business hours at the offices of the Servicer. Nothing in this Section 6.08 shall affect the obligation of the Servicer to observe any applicable law (including any PSCW Regulation) prohibiting disclosure of information regarding Customers, and the failure of the Servicer to provide access to such information as a result of such obligation shall not constitute a breach of this Section 6.08.
Section 6.09 Appointments. The Servicer may at any time appoint any Person to perform all or any portion of its obligations as Servicer hereunder; provided, however, that, unless such Person is an Affiliate of Wisconsin Electric, the Rating Agency Condition shall have been satisfied in connection therewith; provided, further, that the Servicer shall remain obligated and be liable under this Servicing Agreement for the servicing and administering of the Environmental Control Property in accordance with the provisions hereof without diminution of such obligation and liability by virtue of the appointment of such Person and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Environmental Control Property. The fees and expenses of any such Person shall be as agreed between the Servicer and such Person from time to time, and none of the Issuer, the Indenture Trustee, the Holders or any other Person shall have any responsibility therefor or right or claim thereto. Any such appointment shall not constitute a Servicer resignation under Section 6.05.
Section 6.10 No Servicer Advances. The Servicer shall not make any advances of interest on or principal of the Environmental Trust Bonds.
Section 6.11 Remittances.
(a) On each Servicer Business Day, commencing the Weighted Average Days Outstanding after the Environmental Control Charges are first billed in accordance with the terms of the Financing Order, the Servicer shall calculate and remit within two Servicer Business Days after deemed receipt to the General Subaccount of the Collection Account an amount equal to the total Estimated EC Charge Collections deemed to have been received by the Servicer on such Servicer Business Day (the “Daily Remittance Amount”), which Daily Remittance Amount shall be calculated according to the procedures set forth in Annex I. Prior to each remittance to the General Subaccount of the Collection Account pursuant to this Section 6.11, the Servicer shall provide written notice (which may be via electronic means, including electronic mail) to the Indenture Trustee of each such remittance (including the exact dollar amount to be remitted). The Servicer shall also, promptly upon receipt, remit to the Collection Account any other proceeds of the Environmental Trust Bond Collateral which it may receive from time to time.
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(b) The Servicer agrees and acknowledges that it holds all EC Charge Collections collected by it and any other proceeds for the Environmental Trust Bond Collateral received by it for the benefit of the Indenture Trustee and the Holders and that all such amounts will be remitted by the Servicer in accordance with this Section 6.11 without any surcharge, fee, offset, charge or other deduction except (i) as set forth in clause (c) below and (ii) for late fees and investment earnings permitted by Section 6.06. The Servicer further agrees not to make any claim to reduce its obligation to remit all EC Charge Collections collected by it in accordance with this Servicing Agreement except (i) as set forth in clause (c) below and (ii) for late fees and investment earnings permitted by Section 6.06.
(c) On or before March 1 of each year, commencing with March 1, 2022, the Servicer shall calculate the amount of any Remittance Shortfall or Excess Remittance attributable to the prior Reconciliation Period and (A) if a Remittance Shortfall exists, the Servicer shall make a supplemental remittance to the General Subaccount of the Collection Account within two (2) Servicer Business Day following such calculation in the amount of such Remittance Shortfall, or (B) if an Excess Remittance exists, the Servicer may reduce the amount of each Daily Remittance Amount to be made to the General Subaccount of the Collection Account on succeeding Servicer Business Days in an amount equal to the amount of such Excess Remittance until the balance of such Excess Remittance has been reduced to zero. The Servicer shall deliver a written report setting forth in reasonable detail the calculation of any Excess Remittance or Remittance Shortfall to the Issuer, the Indenture Trustee and the Rating Agencies.
Section 6.12 Maintenance of Operations. Subject to Section 6.03, Wisconsin Electric agrees to continue, unless prevented by circumstances beyond its control, to operate its retail electric distribution system to provide service so long as it is acting as the Servicer under this Servicing Agreement.
ARTICLE
VII
DEFAULT
Section 7.01 Servicer Default. If any one or more of the following events (a “Servicer Default”) shall occur and be continuing:
(a) any failure by the Servicer to remit to the Collection Account on behalf of the Issuer any required remittance that shall continue unremedied for a period of five (5) Business Days after written notice of such failure is received by the Servicer from the Issuer or the Indenture Trustee or after discovery of such failure by a Responsible Officer of the Servicer;
(b) any failure on the part of the Servicer or, so long as the Servicer is Wisconsin Electric or an Affiliate thereof, any failure on the part of Wisconsin Electric, as the case may be, duly to observe or to perform in any material respect any covenants or agreements of the Servicer or Wisconsin Electric, as the case may be, set forth in this Servicing Agreement (other than as provided in Section 7.01(a) or Section 7.01(c)) or any other Basic Document to which it is a party, which failure shall (i) materially and adversely affect the rights of the Holders and (ii) continue unremedied for a period of sixty (60) days after the date on which (A) written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or Wisconsin Electric, as the case may be, by the Issuer (with a copy to the Indenture Trustee) or to the Servicer or Wisconsin Electric, as the case may be, by the Indenture Trustee or (B) such failure is discovered by a Responsible Officer of the Servicer;
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(c) any failure by the Servicer duly to perform its obligations under Section 4.01(b) of this Servicing Agreement in the time and manner set forth therein, which failure continues unremedied for a period of five (5) Business Days;
(d) any representation or warranty made by the Servicer in this Servicing Agreement or any other Basic Document shall prove to have been incorrect in a material respect when made, which has a material adverse effect on the Holders and which material adverse effect continues unremedied for a period of sixty (60) days after the date on which (i) written notice thereof, requiring the same to be remedied, shall have been delivered to the Servicer (with a copy to the Indenture Trustee) by the Issuer or the Indenture Trustee or (ii) such failure is discovered by a Responsible Officer of the Servicer; or
(e) an Insolvency Event occurs with respect to the Servicer or Wisconsin Electric;
then, and in each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee may, or shall upon the instruction of Holders evidencing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds, by notice then given in writing to the Servicer (and to the Indenture Trustee if given by the Holders) (a “Termination Notice”), terminate all the rights and obligations (other than the obligations set forth in Section 6.02 and the obligation under Section 7.02 to continue performing its functions as Servicer until a successor Servicer is appointed) of the Servicer under this Servicing Agreement. In addition, upon a Servicer Default described in Section 7.01(a), the Holders and the Indenture Trustee as interested parties under the Statute (or any of their representatives) shall be entitled to apply to a court of appropriate jurisdiction for an order for sequestration and payment of revenues arising with respect to the Environmental Control Property. On or after the receipt by the Servicer of a Termination Notice, all authority and power of the Servicer under this Servicing Agreement, whether with respect to the Environmental Trust Bonds, the Environmental Control Property, the Environmental Control Charges or otherwise, shall, without further action, pass to and be vested in such successor Servicer as may be appointed under Section 7.02; and, without limitation, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such Termination Notice, whether to complete the transfer of the Environmental Control Property Records and related documents, or otherwise. The predecessor Servicer shall cooperate with the successor Servicer, the Issuer and the Indenture Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Servicing Agreement, including the transfer to the successor Servicer for administration by it of all Environmental Control Property Records and all cash amounts that shall at the time be held by the predecessor Servicer for remittance, or shall thereafter be received by it with respect to the Environmental Control Property or the Environmental Control Charges. As soon as practicable after receipt by the Servicer of such Termination Notice, the Servicer shall deliver the Environmental Control Property Records to the successor Servicer. In case a successor Servicer is appointed as a result of a Servicer Default, all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with transferring the Environmental Control Property Records to the successor Servicer and amending this Servicing Agreement to reflect such succession as Servicer pursuant to this Section 7.01 shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Termination of Wisconsin Electric as Servicer shall not terminate Wisconsin Electric’s rights or obligations under the Sale Agreement (except rights thereunder deriving from its rights as the Servicer hereunder).
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Section 7.02 Appointment of Successor.
(a) Upon the Servicer’s receipt of a Termination Notice pursuant to Section 7.01 or the Servicer’s resignation or removal in accordance with the terms of this Servicing Agreement, the predecessor Servicer shall continue to perform its functions as Servicer under this Servicing Agreement, and shall be entitled to receive the requisite portion of the Servicing Fee, until a successor Servicer shall have assumed in writing the obligations of the Servicer hereunder as described below. In the event of the Servicer’s removal or resignation hereunder, the Indenture Trustee may, or, at the written direction and with the consent of the Holders of at least a majority of the Outstanding Amount of the Environmental Trust Bonds, shall, appoint a successor Servicer with the Issuer’s prior written consent thereto (which consent shall not be unreasonably withheld), and the successor Servicer shall accept its appointment by a written assumption in form reasonably acceptable to the Issuer and the Indenture Trustee and provide prompt written notice of such assumption to the Issuer and the Rating Agencies. If, within thirty (30) days after the delivery of the Termination Notice, a new Servicer shall not have been appointed, the Indenture Trustee may, at the direction of the Holders of at least a majority of the Environmental Trust Bonds, petition the PSCW or a court of competent jurisdiction to appoint a successor Servicer under this Servicing Agreement. A Person shall qualify as a successor Servicer only if (i) such Person is permitted under PSCW Regulations to perform the duties of the Servicer, (ii) the Rating Agency Condition shall have been satisfied and (iii) such Person enters into a servicing agreement with the Issuer having substantially the same provisions as this Servicing Agreement. In no event shall the Indenture Trustee be liable for its appointment of a successor Servicer. The Indenture Trustee’s expenses incurred under this Section 7.02(a) shall be at the sole expense of the Issuer and payable from the Collection Account as provided in Section 8.02 of the Indenture.
(b) Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter placed on the predecessor Servicer and shall be entitled to the Servicing Fee and all the rights granted to the predecessor Servicer by the terms and provisions of this Servicing Agreement.
Section 7.03 Waiver of Past Defaults. The Holders evidencing not less than a majority of the Outstanding Amount of the Environmental Trust Bonds, may, on behalf of all Holders, direct the Indenture Trustee to waive in writing any default by the Servicer in the performance of its obligations hereunder and its consequences, except a default in making any required deposits to the Collection Account in accordance with this Servicing Agreement. Upon any such waiver of a past default, such default shall cease to exist, and any Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of this Servicing Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereto. Promptly after the execution of any such waiver, the Servicer shall furnish copies of such waiver to each of the Rating Agencies.
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Section 7.04 Notice of Servicer Default. The Servicer shall deliver to the Issuer, the Indenture Trustee and the Rating Agencies, promptly after having obtained knowledge thereof, but in no event later than five (5) Business Days thereafter, written notice of any event which, with the giving of notice or lapse of time, or both, would become a Servicer Default under Section 7.01.
Section 7.05 Cooperation with Successor. The Servicer covenants and agrees with the Issuer that it will, on an ongoing basis, cooperate with the successor Servicer and provide whatever information is, and take whatever actions are, reasonably necessary to assist the successor Servicer in performing its obligations hereunder.
ARTICLE
VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Amendment.
(a) This Servicing Agreement may be amended in writing by the Servicer and the Issuer with the prior written consent of the Indenture Trustee and the satisfaction of the Rating Agency Condition; provided, that any such amendment may not adversely affect the interest of any Holder in any material respect without the consent of the Holders of not less than a majority of the Outstanding Amount of the Environmental Trust Bonds. Promptly after the execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.
In addition, this Servicing Agreement may be amended in writing by the Servicer and the Issuer with ten Business Days’ prior written notice given to the Rating Agencies and the prior written consent of the Indenture Trustee (which consent shall be given in reliance on an Opinion of Counsel and an Officer’s Certificate stating that such amendment is permitted or authorized under and adopted in accordance with the provisions of this Servicing Agreement and that all conditions precedent have been satisfied, upon which the Indenture Trustee may conclusively rely), but without the consent of any of the Holders, (i) to cure any ambiguity, to correct or supplement any provisions in this Servicing Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Servicing Agreement or of modifying in any manner the rights of the Holders; provided, however, that such action shall not, as evidenced by an Officer’s Certificate delivered to the Issuer and the Indenture Trustee, adversely affect in any material respect the interests of any Holder or (ii) to conform the provisions hereof to the description of this Servicing Agreement in the Prospectus. Promptly after the execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.
Notwithstanding the foregoing, in no event shall this Servicing Agreement be amended without the approval of the PSCW if (1) such approval is required pursuant to Wis. Stat. § 196.52, or (2) such amendment would increase the ongoing Financing Costs of the Issuer.
Prior to the execution of any amendment to this Servicing Agreement, the Issuer and the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel of external counsel stating that such amendment is authorized or permitted by this Servicing Agreement and that all conditions precedent have been satisfied and upon the Opinion of Counsel from external counsel referred to in Section 3.01(c)(i). The Issuer and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects their own rights, duties, indemnities or immunities under this Servicing Agreement or otherwise.
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(b) It shall not be necessary for the consent of Holders pursuant to this Article to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.
(c) Any Opinion of Counsel may be based, insofar as it relates to factual matters (including financial and capital markets), upon a certificate or opinion of, or representations by, an officer or officers of the Servicer or the Issuer and other documents necessary and advisable in the judgment of counsel delivering such opinion.
Section 8.02 Maintenance of Accounts and Records.
(a) The Servicer shall maintain accounts and records as to the Environmental Control Property accurately and in accordance with its standard accounting procedures and in sufficient detail to permit reconciliation between EC Charge Collections received by the Servicer and the Estimated EC Charge Collections from time to time deposited in the Collection Account.
(b) The Servicer shall permit the Indenture Trustee and its agents at any time during normal business hours, upon reasonable notice to the Servicer and to the extent it does not unreasonably interfere with the Servicer’s normal operations, to inspect, audit and make copies of and abstracts from the Servicer’s records regarding the Environmental Control Property and the Environmental Control Charges. Nothing in this Section 8.02(b) shall affect the obligation of the Servicer to observe any applicable law (including any PSCW Regulation) prohibiting disclosure of information regarding Customers, and the failure of the Servicer to provide access to such information as a result of such obligation shall not constitute a breach of this Section 8.02(b).
Section 8.03 Notices. Unless otherwise specifically provided herein, any notice, report or other communication given hereunder shall be in writing and shall be effective (i) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, (ii) upon receipt when sent by an overnight courier, (iii) on the date personally delivered to an authorized officer of the party to which sent or (iv) on the date transmitted by facsimile or other electronic transmission (including email) with a confirmation of receipt in all cases, addressed as follows:
(a) in the case of the Servicer, to Wisconsin Electric Power Company, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2345, Email [email protected];
(b) in the case of the Issuer, to WEPCo Environmental Trust Finance I, LLC, at at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2579, Email: [email protected];
25
(c) in the case of the Indenture Trustee, to the Corporate Trust Office;
(d) in the case of Fitch, to Fitch Ratings, Inc., 300 West 57th Street, New York, New York 10019, Attention: ABS Surveillance, Telephone: (212) 908-0500, Facsimile: (212) 908-0355, Email: [email protected] (all such notices to be delivered to Fitch in writing by email);
(e) in the case of Moody’s, to Moody’s Investor Services, Inc., ABS/RMBS Monitoring Department, 25th Floor, 7 World Trade Center, 250 Greenwich Street, New York, New York, Email: [email protected]; and
(f) in the case of S&P, to S&P Global Ratings, a division of S&P Global Inc., Structured Credit Surveillance, 55 Water Street, New York, New York 10041, Telephone: (212) 438-8991, Email: [email protected] (all such notices to be delivered to S&P in writing by email).
Each Person listed above may, by notice given in accordance herewith to the other Person or Persons listed above, designate any further or different address to which subsequent notices, reports and other communications shall be sent.
Section 8.04 Assignment. Notwithstanding anything to the contrary contained herein, except as provided in Section 6.03 and as provided in the provisions of this Servicing Agreement concerning the resignation of the Servicer, this Servicing Agreement may not be assigned by the Servicer.
Section 8.05 Limitations on Rights of Others. The provisions of this Servicing Agreement are solely for the benefit of the Servicer and the Issuer and, to the extent provided herein or in the other Basic Documents, the Indenture Trustee and the Holders, and the other Persons expressly referred to herein, and such Persons shall have the right to enforce the relevant provisions of this Servicing Agreement. Nothing in this Servicing Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Environmental Control Property or Environmental Trust Bond Collateral or under or in respect of this Servicing Agreement or any covenants, conditions or provisions contained herein.
Section 8.06 Severability. Any provision of this Servicing Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remainder of such provision (if any) or the remaining provisions hereof (unless such a construction shall be unreasonable), and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 8.07 Separate Counterparts. This Servicing Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 8.08 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 8.09 GOVERNING LAW. This Servicing Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
26
Section 8.10 Assignment to Indenture Trustee. The Servicer hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee for the benefit of the Secured Parties pursuant to the Indenture of any or all of the Issuer’s rights hereunder and (b) in no event shall the Indenture Trustee have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates delivered pursuant hereto, as to all of which any recourse shall be had solely to the assets of the Issuer subject to the availability of funds therefor under Section 8.02 of the Indenture.
Section 8.11 Nonpetition Covenants. Notwithstanding any prior termination of this Servicing Agreement or the Indenture, the Servicer shall not, prior to the date which is one year and one day after the satisfaction and discharge of the Indenture, acquiesce, petition or otherwise invoke or cause the Issuer to invoke or join with any Person in provoking the process of any Governmental Authority for the purpose of commencing or sustaining an involuntary case against the Issuer under any U.S. federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer for any substantial part of the property of the Issuer or ordering the dissolution, winding up or liquidation of the affairs of the Issuer.
Section 8.12 Limitation of Liability. It is expressly understood and agreed by the parties hereto that this Servicing Agreement is executed and delivered by the Indenture Trustee, not individually or personally but solely as Indenture Trustee in the exercise of the powers and authority conferred and vested in it, and that the Indenture Trustee, in acting hereunder, is entitled to all rights, benefits, protections, immunities and indemnities accorded to it under the Indenture.
Section 8.13 Rule 17g-5 Compliance. The Servicer agrees that any notice, report, request for satisfaction of the Rating Agency Condition, document or other information provided by the Servicer to any Rating Agency under this Servicing Agreement or any other Basic Document to which it is a party for the purpose of determining the initial credit rating of the Environmental Trust Bonds or undertaking credit rating surveillance of the Environmental Trust Bonds with any Rating Agency, or to satisfy the Rating Agency Condition, shall be substantially concurrently posted by the Servicer on the 17g-5 Website.
{SIGNATURE PAGE FOLLOWS}
27
IN WITNESS WHEREOF, the parties hereto have caused this Servicing Agreement to be duly executed by their respective officers as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | ||
| as Issuer | ||
| By: | /s/ Scott J. Lauber | |
| Name: Scott J. Lauber | ||
| Title: President | ||
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Servicer | ||
| By: | /s/ Anthony L. Reese | |
| Name: Anthony L. Reese | ||
| Title: Vice President and Treasurer | ||
| ACKNOWLEDGED AND ACCEPTED: | ||
| U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely in its capacity as Indenture Trustee | ||
| By: | /s/ Nicholas Xeros | |
| Name: Nicholas Xeros | ||
| Title: Assistant Vice President | ||
Signature Page to Environmental Control Property Servicing Agreement
EXHIBIT A
FORM OF MONTHLY SERVICER’S CERTIFICATE
See Attached
E-A-1
MONTHLY SERVICER’S CERTIFICATE
WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC
$118,814,000 Environmental Trust Bonds, Series 2021
Pursuant to Section 3.01(b) of the Environmental Control Property Servicing Agreement dated as of May 12, 2021 by and between Wisconsin Electric Power Company, as Servicer, and WEPCo Environmental Trust Finance I, LLC, as Issuer (the “Servicing Agreement”), the Servicer does hereby certify as follows:
For the Monthly Period: [MONTH, YEAR]
Billings:
| Customer Class | ECC Rate in effect | ECCs Billed During Month |
Estimated Collections and Remittances:
|
Customer Class |
Estimated Collections During Month(1) |
Remittances to Indenture Trustee |
(1) Based on estimated Weighted Average Days Sales Outstanding of { } days and estimated net charge-offs of { }%.
Capitalized terms used but not defined in this Monthly Servicer’s Certificate have their respective meanings as set forth in the Servicing Agreement. References herein to certain sections and subsections are references to the respective sections or subsections of the Servicing Agreement.
Executed as of this { } day of { } 20{ }.
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Servicer | ||
| By: | ||
| Name: | ||
| Title: | ||
CC: WEPCo Environmental Trust Finance I, LLC
E-A-2
EXHIBIT B
FORM OF SEMI-ANNUAL SERVICER’S CERTIFICATE
See attached
E-B-1
SEMI-ANNUAL SERVICER’S CERTIFICATE
Pursuant to Section 4.01(c)(ii) of the Environmental Control Property Servicing Agreement, dated as of May 12, 2021 (the “Servicing Agreement”), by and between WISCONSIN ELECTRIC POWER COMPANY, as servicer (the “Servicer”), and WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, the Servicer does hereby certify, for the { }, 20{ } Payment Date (the “Current Payment Date”), as follows:
Billing Periods: { } to { }
Payment Date: { }, 20{ }
1. Collections Allocable and Aggregate Amounts Available for the Current Payment Date:
| i. | Remittances for the { } Billing Period | $ | { | } | ||
| ii. | Remittances for the { } Billing Period | $ | { | } | ||
| iii. | Remittances for the { } Billing Period | $ | { | } | ||
| iv. | Remittances for the { } Billing Period | $ | { | } | ||
| v. | Remittances for the { } Billing Period | $ | { | } | ||
| vi. | Remittances for the { } Billing Period | $ | { | } | ||
| vii. | Investment Earnings on Capital Subaccount | $ | { | } | ||
| viii. | Investment Earnings on Excess Funds Subaccount | $ | { | } | ||
| ix. | Investment Earnings on General Subaccount | $ | { | } | ||
| x. | General Subaccount Balance (sum of i through ix above) | $ | { | } | ||
| xi. | Excess Funds Subaccount Balance as of prior Payment Date | $ | { | } | ||
| xii. | Capital Subaccount Balance as of prior Payment Date | $ | { | } | ||
| xiii. | Collection Account Balance (sum of xi through xii above) | $ | { | } |
2. Outstanding Amounts of as of prior Payment Date:
| Aggregate Outstanding Amount of all Evironmental Trust Bonds | $ | { | } |
E-B-2
3. Required Funding/Payments as of Current Payment Date:
| Principal | Principal Due | |||
| Environmental Trust Bonds | $ | { | } |
| Interest |
| Interest Rate | Days in Interest Period(1) | Principal Balance | Interest Due | |||||||||||||
| Environmental Trust Bonds | { | }% | { | } | $ | { | } | $ | { | } |
| Required Level | Funding Required | |||||||
| xiii. Capital Subaccount | $ | { | } | $ | { | } |
4. Allocation of Remittances as of Current Payment Date Pursuant to 8.02(e) of Indenture:
| i. Trustee Fees and Expenses; Indemnity Amounts | $ | { | } | |
| ii. Servicing Fee | $ | { | } | |
| iii. Administration Fee | $ | { | } | |
| iv. Operating Expenses | $ | { | } |
| Environmental Trust Bonds | Aggregate | Per $1,000 of Original Principal Amount | ||||||
| v. Semi-Annual Interest (including any past-due for prior periods) | $ | |||||||
| Interest Payment | $ | { | } | $ | { | } | ||
| vi. Principal Due and Payable as a Result of an Event of Default or on Final Maturity Date | ||||||||
| Principal Payment | $ | { | } | $ | { | } | ||
| vii. Semi-Annual Principal | ||||||||
| Principal Payment | $ | { | } | $ | { | } |
(1)On 30/360 day basis for initial payment date; otherwise use one-half of annual rate.
| viii. Other unpaid Operating Expenses | $ | { | } | |
| ix. Funding of Capital Subaccount (to required level) | $ | { | } | |
| x. Capital Subaccount Return to Wisconsin Electric | $ | { | } | |
| xi. Deposit to Excess Funds Subaccount | $ | { | } | |
| xii. Released to Issuer upon Retirement of all Environmental Trust Bonds | $ | { | } | |
| xiii. Aggregate Remittances as of Current Payment Date | $ | { | } |
5. Outstanding Amount and Collection Account Balance as of Current Payment Date (after giving effect to payments to be made on such Payment Date):
| i. Aggregate Outstanding Amount of all Environmental Trust Bonds | $ | { | } | |
| ii. Excess Funds Subaccount Balance | $ | { | } | |
| iii. Capital Subaccount Balance | $ | { | } | |
| iv. Aggregate Collection Account Balance | $ | { | } |
E-B-3
6. Subaccount Withdrawals as of Current Payment Date (if applicable, pursuant to Section 8.02(e) of Indenture):
| i. Excess Funds Subaccount | $ | { | } | |
| ii. Capital Subaccount | $ | { | } | |
| iii.Total Withdrawals | $ | { | } |
7. Shortfalls in Interest and Principal Payments as of Current Payment Date:
| i. Semi-annual Interest | ||||
| Interest Payment | $ | { | } | |
| ii. Semi-annual Principal | ||||
| Principal Payment | $ | { | } |
E-B-4
8. Shortfalls in Payment of Return on Invested Capital as of Current Payment Date:
| i. Return on Invested Capital | $ | { | } |
9. Shortfalls in Required Subaccount Levels as of Current Payment Date:
| i. Capital Subaccount | $ | { | } |
Capitalized terms used but not defined herein have their respective meanings as set forth in the Servicing Agreement. References herein to certain sections and subsections are references to the respective sections of the Servicing Agreement or the Indenture, as the context indicates.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Semi-Annual Servicer’s Certificate this { } day of { }, 20{ }.
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Servicer | ||
| By: | ||
| Name: | ||
| Title: | ||
E-B-5
EXHIBIT C
FORM OF REGULATION AB SERVICER CERTIFICATE
See attached
E-C-1
SERVICER CERTIFICATE
The undersigned hereby certifies that the undersigned is the duly elected and acting { } of WISCONSIN ELECTRIC POWER COMPANY, as servicer (the “Servicer”) under the Environmental Control Property Servicing Agreement dated as of May 12, 2021 (the “Servicing Agreement”) by and between the Servicer and WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, and further certifies that:
1. The undersigned is responsible for assessing the Servicer’s compliance with the servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”).
2. With respect to each of the Servicing Criteria, the undersigned has made the following assessment of the Servicing Criteria in accordance with Item 1122(d) of Regulation AB, with such discussion regarding the performance of such Servicing Criteria during the fiscal year covered by the Sponsor’s annual report on Form 10-K:
| Regulation AB Reference |
Servicing Criteria | Assessment | ||
| General Servicing Considerations | ||||
| 1122(d)(1)(i) | Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. | Applicable; assessment below. | ||
| 1122(d)(1)(ii) | If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. | Not applicable; no servicing activities were outsourced. | ||
| 1122(d)(1)(iii) | Any requirements in the transaction agreements to maintain a back-up servicer for pool assets are maintained. | Not applicable; transaction agreements do not provide for a back-up servicer. | ||
| 1122(d)(1)(iv) | A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. | Not applicable; transaction agreements do not require a fidelity bond or errors and omissions policy. | ||
| 1122(d)(1)(v) | Aggregation of information, as applicable, is mathematically accurate and the information conveyed accurately reflects the information. | Applicable | ||
| Cash Collection and Administration | ||||
| 1122(d)(2)(i) | Payments on pool assets are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | Applicable. | ||
| 1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | Applicable. | ||
E-C-2
| Regulation AB Reference |
Servicing Criteria | Assessment | ||
| 1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | Applicable; no advances by the Servicer are permitted under the transaction agreements, except for payments of certain indemnities. | ||
| 1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | Applicable, but no current assessment is required since the related accounts are maintained by the Indenture Trustee. | ||
| 1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) under the Exchange Act. | Applicable, but no current assessment required; all “custodial accounts” are maintained by the Indenture Trustee. | ||
| 1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | Not applicable; all payments made by wire transfer. | ||
| 1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are: (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. | Applicable; assessment below. | ||
| Investor Remittances and Reporting | ||||
| 1122(d)(3)(i) | Reports to investors, including those to be filed with the SEC, are maintained in accordance with the transaction agreements and applicable SEC requirements. Specifically, such reports: (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the SEC as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of pool assets serviced by the servicer. | Applicable; assessment below. | ||
E-C-3
| Regulation AB Reference |
Servicing Criteria | Assessment | ||
| 1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | Not applicable; investor records maintained by the Indenture Trustee. | ||
| 1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the servicer’s investor records, or such other number of days specified in the transaction agreements. | Applicable. | ||
| 1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | Applicable; assessment below. | ||
| Pool Asset Administration | ||||
| 1122(d)(4)(i) | Collateral or security on pool assets is maintained as required by the transaction agreements or related pool asset documents. | Applicable; assessment below. | ||
| 1122(d)(4)(ii) | Pool assets and related documents are safeguarded as required by the transaction agreements. | Applicable; assessment below. | ||
| 1122(d)(4)(iii) | Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. | Not applicable; no removals or substitutions of Environmental Control Property are contemplated or allowed under the transaction documents. | ||
| 1122(d)(4)(iv) | Payments on pool assets, including any payoffs, made in accordance with the related pool asset documents are posted to the servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related pool asset agreements. | Applicable; assessment below. | ||
| 1122(d)(4)(v) | The servicer’s records regarding the pool assets agree with the servicer’s records with respect to an obligor’s unpaid principal balance. | Not applicable; because underlying obligation (Environmental Control Charge) is not an interest-bearing instrument. | ||
| 1122(d)(4)(vi) | Changes with respect to the terms or status of an obligor’s pool assets (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. | Applicable; assessment below. | ||
| 1122(d)(4)(vii) | Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. | Applicable; limited assessment below. Servicer actions governed by PSCW regulations. | ||
E-C-4
| Regulation AB Reference |
Servicing Criteria | Assessment | ||
| 1122(d)(4)(viii) | Records documenting collection efforts are maintained during the period a pool asset is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent pool assets, including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). | Applicable, but does not require assessment since no explicit documentation requirement with respect to delinquent accounts are imposed under the transaction agreements due to availability of “true-up” mechanism; and any such documentation is maintained in accordance with applicable PSCW rules and regulations. | ||
| 1122(d)(4)(ix) | Adjustments to interest rates or rates of return for pool assets with variable rates are computed based on the related pool asset documents. | Not applicable; Environmental Control Charges are not interest-bearing instruments. | ||
| 1122(d)(4)(x) | Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s pool asset documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable pool asset documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related pool assets, or such other number of days specified in the transaction agreements. | Not applicable. | ||
| 1122(d)(4)(xi) | Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements. | Not applicable; Servicer does not make payments on behalf of obligors. | ||
| 1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | Not applicable; Servicer cannot make advances of its own funds on behalf of customers under the transaction agreements. | ||
| 1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | Not applicable; Servicer cannot make advances of its own funds on behalf of customers to pay principal or interest on the bonds. |
E-C-5
| Regulation AB Reference |
Servicing Criteria | Assessment | ||
| 1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | Applicable; assessment below. | ||
| 1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | Not applicable; no external enhancement is required under the transaction agreements. |
3. To the best of the undersigned’s knowledge, based on such review, the Servicer is in compliance in all material respects with the applicable servicing criteria set forth above as of and for the period ended the end of the fiscal year covered by the Issuer’s annual report on Form 10-K. {If not true, include description of any material instance of noncompliance.}
4. [ ], an independent registered public accounting firm, has issued an attestation report on the Servicer’s assessment of compliance with the applicable servicing criteria as of and for the period ended the end of the fiscal year covered by the Issuer’s annual report on Form 10-K.
Capitalized terms used but not defined herein have their respective meanings as set forth in the Servicing Agreement.
Executed as of this { } day of { }, 20{ }.
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Servicer | ||
| By: | ||
| Name: | ||
| Title: | ||
E-C-6
EXHIBIT D
FORM OF CERTIFICATE OF COMPLIANCE
See attached
E-D-1
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the undersigned is the duly elected and acting { } of WISCONSIN ELECTRIC POWER COMPANY, as servicer (the “Servicer”) under the Environmental Control Property Servicing Agreement dated as of May 12, 2021 (the “Servicing Agreement”) by and between the Servicer and WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, and further certifies that:
1. A review of the activities of the Servicer and of its performance under the Servicing Agreement during the twelve months ended { }, 20{ } has been made under the supervision of the undersigned pursuant to Section 3.03 of the Servicing Agreement.
2. To the undersigned’s knowledge, based on such review, the Servicer has fulfilled all of its obligations in all material respects under the Servicing Agreement throughout the twelve months ended { }, 20{ }, except as set forth on EXHIBIT A hereto.
Executed as of this { } day of { }, 20{ }.
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Servicer | ||
| By: | ||
| Name: | ||
| Title: | ||
E-D-2
EXHIBIT A
TO
CERTIFICATE OF COMPLIANCE
LIST OF SERVICER DEFAULTS
The following Servicer Defaults, or events that with the giving of notice, the lapse of time, or both, would become Servicer Defaults, known to the undersigned occurred during the twelve months ended { }, 20{ }:
| Nature of Default | Status | |
| { } | { } |
E-D-3
EXHIBIT E
EXPECTED AMORTIZATION SCHEDULE
See Attached
E-E-1
EXPECTED AMORTIZATION SCHEDULE
Outstanding Principal Balance
| Payment Date | Expected Principal Balance |
| Closing Date | $118,814,000 |
| December 15, 2021 | $114,686,952 |
| June 15, 2022 | $110,327,728 |
| December 15, 2022 | $105,934,109 |
| June 15, 2023 | $101,505,825 |
| December 15, 2023 | $97,042,601 |
| June 15, 2024 | $92,544,163 |
| December 15, 2024 | $88,010,232 |
| June 15, 2025 | $83,440,528 |
| December 15, 2025 | $78,834,769 |
| June 15, 2026 | $74,192,671 |
| December 15, 2026 | $69,513,947 |
| June 15, 2027 | $64,798,307 |
| December 15, 2027 | $60,045,461 |
| June 15, 2028 | $55,255,115 |
| December 15, 2028 | $50,426,973 |
| June 15, 2029 | $45,560,737 |
| December 15, 2029 | $40,656,107 |
| June 15, 2030 | $35,712,779 |
| December 15, 2030 | $30,730,448 |
| June 15, 2031 | $25,708,807 |
| December 15, 2031 | $20,647,545 |
| June 15, 2032 | $15,546,350 |
| December 15, 2032 | $10,404,906 |
| June 15, 2033 | $5,222,896 |
| December 15, 2033 | - |
E-E-2
ANNEX I
SERVICING PROCEDURES
The Servicer agrees to comply with the following servicing procedures:
SECTION 1. Definitions.
(a) Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Environmental Control Property Servicing Agreement (the “Agreement”).
(b) Whenever used in this Annex I, the following words and phrases shall have the following meanings:
“Billed EC Charges” means the amounts billed by the Servicer to Customers in respect of the Environmental Control Charges.
“Servicer Policies and Practices” means, with respect to the Servicer’s duties under this Annex I, the policies and practices of the Servicer applicable to such duties that the Servicer follows with respect to comparable assets that it services for itself and, if applicable, others, as in effect from time to time in accordance with PSCW Regulations.
SECTION 2. Data Acquisition.
(a) Installation and Maintenance of Meters. The Servicer shall cause to be installed, replaced and maintained meters in accordance with the Servicer Policies and Practices.
(b) Meter Reading. In accordance with the Servicer Policies and Practices, the Servicer shall obtain usage measurements for each Customer; provided, however, that the Servicer may estimate any Customer’s usage determined in accordance with applicable PSCW Regulations.
(c) Cost of Metering. The Issuer shall not be obligated to pay any costs associated with the metering duties set forth in this Section 2, including the costs of installing, replacing and maintaining meters, nor shall the Issuer be entitled to any credit against the Servicing Fee for any cost savings realized by the Servicer as a result of new metering and/or billing technologies.
SECTION 3. Usage and Bill Calculation.
The Servicer (a) shall obtain a calculation of each Customer’s usage (which may be based on data obtained from such Customer’s meter read or on usage estimates determined in accordance with PSCW Regulations) in accordance with the Servicer Policies and Practices and (b) shall determine therefrom Billed EC Charges.
ANNEX I-1
SECTION 4. Billing.
(a) Commencement of Billing. The Servicer shall implement the Environmental Control Charges as provided in the Financing Order and shall thereafter bill each Customer for each Customer’s Billed EC Charges in accordance with the provisions of this Section 4.
(b) Frequency of Bills; Billing Practices. In accordance with the Servicer Policies and Practices, the Servicer shall generate and issue a Bill to each Customer. In the event that the Servicer makes any material modification to the Servicer Policies and Practices, it shall notify the Issuer, the Indenture Trustee and the Rating Agencies as soon as practicable, and in no event later than 60 Servicer Business Days after such modification goes into effect, but the Servicer may not make any modification that will materially adversely affect the Holders.
(c) Format.
(i) The Servicer shall present the Environmental Control Charges as a separate line item on Bills delivered to Customers.
(ii) The Servicer shall conform to such requirements in respect of the format, structure and text of Bills delivered to Customers as PSCW Regulations shall from time to time prescribe. To the extent that Bill format, structure and text are not prescribed by applicable law or by PSCW Regulations, the Servicer shall, subject to clause (i) of this subsection (c), determine the format, structure and text of all Bills in accordance with its reasonable business judgment, the Servicer Policies and Practices and historical practice.
(d) Delivery. Except as provided in the next sentence, the Servicer shall deliver all Bills to Customers (i) by United States mail in such class or classes as are consistent with the Servicer Policies and Practices or (ii) by any other means, whether electronic or otherwise, that the Servicer may from time to time use in accordance with the Servicer Policies and Practices. The Servicer shall pay from its own funds all costs of issuance and delivery of all Bills that it renders, including printing and postage costs as the same may increase or decrease from time to time.
SECTION 5. Customer Service Functions.
The Servicer shall handle all Customer inquiries and other Customer service matters according to the Servicer Policies and Practices.
SECTION 6. Collections; Payment Processing; Remittance.
(e) Collection Efforts, Policies, Procedures.
(i) The Servicer shall collect Billed EC Charges for the Environmental Trust Bonds (including late charges in respect of Environmental Control Charges) from Customers as and when the same become due in accordance with such collection procedures as it follows with respect to comparable assets that it services for itself or others including, in accordance with PSCW Regulations and the Servicer Policies and Practices, that:
ANNEX I-2
(A) The Servicer shall prepare and deliver overdue notices to Customers in accordance with applicable PSCW Regulations and the Servicer Policies and Practices.
(B) The Servicer shall deliver past-due and shut-off notices in accordance with applicable PSCW Regulations and the Servicer Policies and Practices.
(C) The Servicer may employ the assistance of collection agents in accordance with applicable PSCW Regulations and the Servicer Policies and Practices.
(D) The Servicer shall apply Customer deposits to the payment of delinquent accounts in accordance with applicable PSCW Regulations and these Servicing Procedures.
(ii) The Servicer shall not waive any late payment charge or any other fee or charge relating to delinquent payments, if any, or waive, vary or modify any terms of payment of any amounts payable by a Customer, in each case unless such waiver or action: (A) would be in accordance with the Servicer Policies and Practices and (B) would comply in all material respects with applicable law.
(iii) The Servicer shall accept payment from Customers in respect of Billed EC Charges in such forms and methods and at such times and places in accordance with the Servicer Policies and Practices.
(f) Payment Processing; Allocation; Priority of Payments.
(i) The Servicer shall post all payments received to Customer accounts as promptly as practicable, and, in any event, substantially all payments shall be posted no later than two Servicer Business Days after receipt.
(ii) The Servicer shall allocate cash collections on a Customer-by-Customer basis. The first dollars collected shall be attributed to past due balances (which include late fees), if any. Once those balances are paid in full, if cash collections are not sufficient to pay a Customer’s current bill then the cash shall be prorated between the different components of the bill.
(g) Investment of EC Charge Collections Received. Prior to each remittance of EC Charge Collections, the Servicer may invest EC Charge Collections received at its own risk and for its own benefit, and such investments and funds shall not be required to be segregated from the other investments and funds of the Servicer.
ANNEX I-3
(h) Calculation of Daily Remittance Amount. The Servicer shall comply with the requirements of Section 6.11 of the Servicing Agreement. For purposes of calculating the Daily Remittance Amount, (i) payments with respect to Billed EC Charges shall be deemed to have been made the same number of days after billing as is equal to the Weighted Average Days Outstanding then in effect and (ii) the Servicer will be deemed to have collected, on any Servicer Business Day, an amount equal to the product of (y) the Billed EC Charges deemed pursuant to clause (i) to have been paid on such day and on any prior day that was not a Servicer Business Day for which a remittance has not previously been made, multiplied by (z) one hundred percent less the system wide charge-off percentage used by the Servicer to calculate the most recent Periodic Billing Requirement. Such product shall constitute the amount of “Estimated EC Charge Collections” for such Servicer Business Day. In accordance with Section 6.11 of the Servicing Agreement, the Estimated EC Charge Collections deemed to have been collected on any Servicer Business Day will be remitted by the Servicer to the General Subaccount of the Collection Account no later than two Servicer Business Days following such Servicer Business Day.
(i) No Advances. The Servicer shall not be obligated to advance any of its own funds to the Issuer.
ANNEX I-4
Exhibit 10.3
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT, dated as of May 12, 2021 (this “Administration Agreement”), is entered into by and between WISCONSIN ELECTRIC POWER COMPANY, a Wisconsin corporation (“Wisconsin Electric”), as administrator (in such capacity, the “Administrator”), and WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, a Delaware limited liability company (the “Issuer”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in Appendix A to the Indenture (as defined below). Not all terms defined in Appendix A to the Indenture are used in this Administration Agreement. The rules of construction set forth in Appendix A to the Indenture shall apply to this Administration Agreement.
W I T N E S S E T H:
WHEREAS, the Issuer is issuing Environmental Trust Bonds pursuant to that certain Indenture (including Appendix A thereto), dated as of the date hereof (the “Indenture”), by and between the Issuer and U.S. Bank National Association, in its capacity as indenture trustee (the “Indenture Trustee”) and in its separate capacity as a securities intermediary (the “Securities Intermediary”), and the Series Supplement;
WHEREAS, the Issuer has entered into certain agreements in connection with the issuance of the Environmental Trust Bonds, including (i) the Indenture, (ii) the Environmental Control Property Servicing Agreement, dated as of May 12, 2021 (the “Servicing Agreement”), by and between the Issuer and Wisconsin Electric, as Servicer, (iii) the Environmental Control Property Purchase and Sale Agreement, dated as of May 12, 2021 (the “Sale Agreement”), between the Issuer and Wisconsin Electric, as Seller, and (iv) the other Basic Documents to which the Issuer is a party, relating to the Environmental Trust Bonds (the Indenture, the Servicing Agreement, the Sale Agreement and the other Basic Documents to which the Issuer is a party, the “Related Agreements”);
WHEREAS, pursuant to the Related Agreements, the Issuer is required to perform certain duties in connection with the Related Agreements, the Environmental Trust Bonds and the Environmental Trust Bond Collateral pledged to the Indenture Trustee pursuant to the Indenture;
WHEREAS, the Issuer has no employees and does not intend to hire any employees, and consequently desires to have the Administrator perform certain of the duties of the Issuer referred to in the preceding clauses and to provide such additional services consistent with the terms of this Administration Agreement and the Related Agreements as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services and the facilities required thereby and is willing to perform such services and provide such facilities for the Issuer on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Duties of the Administrator; Management Services. The Administrator hereby agrees to provide the following corporate management services to the Issuer and to cause third parties to provide professional services required for or contemplated by such services in accordance with the provisions of this Administration Agreement:
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(a) furnish the Issuer with ordinary clerical, bookkeeping and other corporate administrative services necessary and appropriate for the Issuer, including, without limitation, the following services:
(i) maintain at the Premises (as defined below) general accounting records of the Issuer (the “Account Records”), subject to year-end audit, in accordance with generally accepted accounting principles, separate and apart from its own accounting records, prepare or cause to be prepared such quarterly and annual financial statements as may be necessary or appropriate and arrange for year-end audits of the Issuer’s financial statements by the Issuer’s independent accountants;
(ii) prepare and, after execution by the Issuer, file with the Securities and Exchange Commission (the “SEC”) and any applicable state agencies documents required to be filed by the Issuer with the SEC and any applicable state agencies, including, without limitation, periodic reports required to be filed under the Securities Exchange Act of 1934, as amended;
(iii) prepare for execution by the Issuer and cause to be filed such income, franchise or other tax returns of the Issuer as shall be required to be filed by applicable law (the “Tax Returns”) and cause to be paid on behalf of the Issuer from the Issuer’s funds any taxes required to be paid by the Issuer under applicable law;
(iv) prepare or cause to be prepared for execution by the Issuer’s Managers minutes of the meetings of the Issuer’s Managers and such other documents deemed appropriate by the Issuer to maintain the separate limited liability company existence and good standing of the Issuer (the “Company Minutes”) or otherwise required under the Related Agreements (together with the Account Records, the Tax Returns, the Company Minutes, the LLC Agreement, and the Certificate of Formation, the “Issuer Documents”); and any other documents deliverable by the Issuer thereunder or in connection therewith; and
(v) hold, maintain and preserve at the Premises (or such other place as shall be required by any of the Related Agreements) executed copies (to the extent applicable) of the Issuer Documents and other documents executed by the Issuer thereunder or in connection therewith;
(b) take such actions on behalf of the Issuer, as are necessary or desirable for the Issuer to keep in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtain and preserve its qualification to do business in each jurisdiction in which it becomes necessary to be so qualified;
(c) take such actions on the behalf of the Issuer as are necessary for the issuance and delivery of Environmental Trust Bonds;
(d) provide for the performance by the Issuer of its obligations under each of the Related Agreements, and prepare, or cause to be prepared, all documents, reports, filings, instruments, notices, certificates and opinions that it shall be the duty of the Issuer to prepare, file or deliver pursuant to the Related Agreements;
(e) to the full extent allowable under applicable law, enforce each of the rights of the Issuer under the Related Agreements, at the direction of the Indenture Trustee;
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(f) provide for the defense, at the direction of the Issuer’s Managers, of any action, suit or proceeding brought against the Issuer or affecting the Issuer or any of its assets;
(g) provide office space (the “Premises”) for the Issuer and such reasonable ancillary services as are necessary to carry out the obligations of the Administrator hereunder, including telecopying, duplicating and word processing services;
(h) undertake such other administrative services as may be appropriate, necessary or requested by the Issuer;
(i) provide the Indenture Trustee with copies of the filings by the Issuer under the Securities Exchange Act of 1934, as amended; and
(j) provide such other services as are incidental to the foregoing or as the Issuer and the Administrator may agree.
In providing the services under this Section 1 and as otherwise provided under this Administration Agreement, the Administrator will not knowingly take any actions on behalf of the Issuer which (i) the Issuer is prohibited from taking under the Related Agreements, or (ii) would cause the Issuer to be in violation of any U.S. federal, state or local law or the LLC Agreement.
Section 2. Compensation. As compensation for the performance of the Administrator’s obligations under this Administration Agreement (including the compensation of Persons serving as Manager(s), other than the Independent Manager(s), and officers of the Issuer, but, for the avoidance of doubt, excluding the performance by Wisconsin Electric of its obligations in its capacity as Servicer), the Administrator shall be entitled to $75,000 annually (the “Administration Fee”), payable by the Issuer in installments of $37,500 on each Payment Date. In addition, the Administrator shall be entitled to be reimbursed by the Issuer for all costs and expenses of services performed by unaffiliated third parties and actually incurred by the Administrator in connection with the performance of its obligations under this Administration Agreement in accordance with Section 3 (but, for the avoidance of doubt, excluding any such costs and expenses incurred by Wisconsin Electric in its capacity as Servicer), to the extent that such costs and expenses are supported by invoices or other customary documentation and are reasonably allocated to the Issuer (“Reimbursable Expenses”).
Section 3. Third Party Services. Any services required for or contemplated by the performance of the above-referenced services by the Administrator to be provided by unaffiliated third parties (including independent auditors’ fees and counsel fees) may, if provided for or otherwise contemplated by the Financing Order and if the Issuer deems it necessary or desirable, be arranged by the Issuer or by the Administrator at the direction (which may be general or specific) of the Issuer. Costs and expenses associated with the contracting for such third-party professional services may be paid directly by the Issuer or paid by the Administrator and reimbursed by the Issuer in accordance with Section 2, or otherwise as the Administrator and the Issuer may mutually arrange.
Section 4. Additional Information to be Furnished to the Issuer. The Administrator shall furnish to the Issuer from time to time such additional information regarding the Environmental Trust Bond Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of this Administration Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer, the Administrator shall have no authority, and shall not hold itself out as having the authority, to act for or represent the Issuer in any way and shall not otherwise be deemed an agent of the Issuer.
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Section 6. No Joint Venture. Nothing contained in this Administration Agreement (a) shall constitute the Administrator and the Issuer as partners or co-members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (b) shall be construed to impose any liability as such on either of them or (c) shall be deemed to confer on either of them any express, implied or apparent authority to incur any obligation or liability on behalf of the other.
Section 7. Other Activities of Administrator. Nothing herein shall prevent the Administrator or any of its shareholders, directors, officers, employees, subsidiaries or affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an administrator for any other Person even though such Person may engage in business activities similar to those of the Issuer.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Administration Agreement shall continue in force until the payment in full of the Environmental Trust Bonds and any other amount which may become due and payable under the Indenture, upon which event this Administration Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may resign its duties hereunder by providing the Issuer with at least sixty (60) days’ prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the Administrator without cause by providing the Administrator with at least sixty (60) days’ prior written notice.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the Issuer, the Administrator may be removed immediately upon written notice of termination from the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its duties under this Administration Agreement and, after notice of such default, shall fail to cure such default within ten (10) days (or, if such default cannot be cured in such time, shall (A) fail to give within ten (10) days such assurance of cure as shall be reasonably satisfactory to the Issuer and (B) fail to cure such default within thirty (30) days thereafter);
(ii) a court of competent jurisdiction shall enter a decree or order for relief, and such decree or order shall not have been vacated within sixty (60) days, in respect of the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or such court shall appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due.
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The Administrator agrees that if any of the events specified in clauses (ii) or (iii) of this Section 8(d) shall occur, it shall give written notice thereof to the Issuer and the Indenture Trustee as soon as practicable but in any event within seven (7) days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this Section 8 shall be effective until a successor Administrator has been appointed by the Issuer, and such successor Administrator has agreed in writing to be bound by the terms of this Administration Agreement in the same manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment.
Section 9. Action upon Termination, Resignation or Removal. Promptly upon the effective date of termination of this Administration Agreement pursuant to Section 8(a), the resignation of the Administrator pursuant to Section 8(b) or the removal of the Administrator pursuant to Section 8(c) or (d), the Administrator shall be entitled to be paid a pro-rated portion of the annual fee described in Section 2 hereof through the date of termination and all Reimbursable Expenses incurred by it through the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to Section 8(a) deliver to the Issuer all property and documents of or relating to the Environmental Trust Bond Collateral then in the custody of the Administrator. In the event of the resignation of the Administrator pursuant to Section 8(b) or the removal of the Administrator pursuant to Section 8(c) or (d), the Administrator shall cooperate with the Issuer and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Administrator.
Section 10. Administrator’s Liability. Except as otherwise provided herein, the Administrator assumes no liability other than to render or stand ready to render the services called for herein, and neither the Administrator nor any of its shareholders, directors, officers, employees, subsidiaries or affiliates shall be responsible for any action of the Issuer or any of the members, managers, officers, employees, subsidiaries or affiliates of the Issuer (other than the Administrator itself). The Administrator shall not be liable for nor shall it have any obligation with regard to any of the liabilities, whether direct or indirect, absolute or contingent, of the Issuer or any of the members, managers, officers, employees, subsidiaries or affiliates of the Issuer (other than the Administrator itself).
Section 11. Indemnity.
(a) Subject to the priority of payments set forth in the Indenture, the Issuer shall indemnify the Administrator, its shareholders, directors, officers, employees and affiliates against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all expenses of litigation or preparation therefor whether or not the Administrator is a party thereto) which any of them may pay or incur arising out of or relating to this Administration Agreement and the services called for herein; provided, however, such indemnity shall not apply to any such loss, claim, damage, penalty, judgment, liability or expense resulting from the Administrator’s gross negligence or willful misconduct in the performance of its obligations hereunder.
(b) The Administrator shall indemnify the Issuer, its members, managers, officers and employees against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all expenses of litigation or preparation therefor whether or not the Issuer is a party thereto) that any of them may incur as a result of the Administrator’s gross negligence or willful misconduct in the performance of its obligations hereunder.
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Section 12. Notices. Any notice, report or other communication given hereunder shall be in writing and addressed as follows:
(a) if to the Issuer, to WEPCo Environmental Trust Finance I, LLC, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2579, Email: [email protected];
(b) if to the Administrator, to Wisconsin Electric Power Company, at 231 West Michigan Street, Milwaukee, Wisconsin 53201, Attention: Anthony L. Reese, Vice President and Treasurer, Telephone: (414) 221-2345, Email: [email protected]; and
(c) if to the Indenture Trustee, to the Corporate Trust Office;
or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand-delivered or delivered by electronic means of communication (including email) to the address of such party as provided above.
Section 13. Amendments. This Administration Agreement may be amended from time to time by a written amendment duly executed and delivered by each of the Issuer and the Administrator, with ten Business Days’ prior written notice given to the Rating Agencies, but without the consent of any of the Holders, (i) to cure any ambiguity, to correct or supplement any provisions in this Administration Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Administration Agreement or of modifying in any manner the rights of the Holders; provided, however, that the Issuer and the Indenture Trustee shall receive an Officer’s Certificate stating that the execution of such amendment shall not adversely affect in any material respect the interests of any Holder and that all conditions precedent have been satisfied or (ii) to conform the provisions hereof to the description of this Administration Agreement in the Prospectus.
In addition, this Administration Agreement may be amended from time to time by a written amendment duly executed and delivered by each of the Issuer and the Administrator with the prior written consent of the Indenture Trustee and the satisfaction of the Rating Agency Condition; provided that any such amendment may not adversely affect the interest of any Holder in any material respect without the consent of the Holders of a majority of the outstanding principal amount of the Environmental Trust Bonds. Promptly after the execution of any such amendment or consent, the Issuer shall furnish copies of such amendment or consent to each of the Rating Agencies.
Notwithstanding the foregoing, in no event shall this Administration Agreement be amended without the approval of the PSCW if (1) such approval is required pursuant to Wis. Stat. § 196.52, or (2) such amendment would increase the ongoing Financing Costs of the Issuer.
Section 14. Successors and Assigns. This Administration Agreement may not be assigned by the Administrator unless such assignment is previously consented to in writing by the Issuer and the Indenture Trustee and subject to the satisfaction of the Rating Agency Condition in connection therewith. Any assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Administration Agreement may be assigned by the Administrator without the consent of the Issuer or the Indenture Trustee and without satisfaction of the Rating Agency Condition to a corporation or other organization that is a successor (by merger, reorganization, consolidation or purchase of assets) to the Administrator, including without limitation any Permitted Successor; provided, that such successor or organization executes and delivers to the Issuer an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Administration Agreement shall bind any successors or assigns of the parties hereto. Upon satisfaction of all of the conditions of this Section 14, the preceding Administrator shall automatically and without further notice be released from all of its obligations hereunder.
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Section 15. GOVERNING LAW. THIS ADMINISTRATION AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 16. Headings. The Section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Administration Agreement.
Section 17. Counterparts. This Administration Agreement may be executed in counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same Administration Agreement.
Section 18. Severability. Any provision of this Administration Agreement that is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 19. Nonpetition Covenant. Notwithstanding any prior termination of this Administration Agreement, the Administrator covenants that it shall not, prior to the date which is one year and one day after payment in full of the Environmental Trust Bonds, acquiesce, petition or otherwise invoke or cause the Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining an involuntary case against the Issuer under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property or ordering the winding up or liquidation of the affairs of the Issuer.
Section 20. Assignment to Indenture Trustee. The Administrator hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee for the benefit of the Secured Parties pursuant to the Indenture of any or all of the Issuer’s rights hereunder and the assignment of any or all of the Issuer’s rights hereunder to the Indenture Trustee for the benefit of the Secured Parties. For the avoidance of doubt, the Indenture Trustee is a third party beneficiary of this Administration Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
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IN WITNESS WHEREOF, the parties have caused this Administration Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
| WEPCO ENVIRONMENTAL TRUST FINANCE I, LLC, | ||
| as Issuer | ||
| By: | /s/ Scott J. Lauber | |
| Name: Scott J. Lauber | ||
| Title: President | ||
| WISCONSIN ELECTRIC POWER COMPANY, | ||
| as Administrator | ||
| By: | /s/ Anthony L. Reese | |
| Name: Anthony L. Reese | ||
| Title: Vice President and Treasurer | ||
Signature Page to Administration Agreement
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Exhibit 99.1
| Troutman Pepper Hamilton Sanders LLP |
|
| 600 Peachtree Street NE, Suite 3000 | |
| Atlanta, GA 30308-2216 | |
| troutman.com |
May 12, 2021
| To: | The persons listed on Exhibit A attached hereto |
| Re: | Opinion Concerning Federal Constitutional Issues Pertaining to WEPCo Environmental Trust Finance I, LLC Environmental Trust Bonds, Series 2021 |
Ladies and Gentlemen,
We have acted as special counsel for Wisconsin Electric Power Company (“Wisconsin Electric”), a Wisconsin corporation, and WEPCo Environmental Trust Finance I, LLC, a Delaware limited liability company (the “Issuing Entity”), in connection with the Registration Statement on Form SF-1 (File Nos. 333-252252 and 333-252252-01) filed on January 20, 2021 and as amended on March 12, 2021 by Wisconsin Electric and the Issuing Entity with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, with respect to the proposed issuance by the Issuing Entity of its Environmental Trust Bonds, Series 2021 (the “Bonds”).
The Issuing Entity is issuing the Bonds pursuant to an order dated November 17, 2020 (the “Financing Order”) issued under Wisconsin Statutes § 196.027 (the “Environmental Trust Financing Statute”), WIS. STAT. § 196.027 (2012), by the Public Service Commission of Wisconsin (“PSCW”) providing for the financing of the costs associated with certain environmental control activities with the proceeds of environmental trust bonds issued by the Issuing Entity.
Consistent with the Environmental Trust Financing Statute, the Financing Order authorizes the formation of the Issuing Entity as a special purpose entity solely authorized to engage in the approved financing related activities and for the exclusive purpose of acquiring “environmental control property,” issuing “environmental trust bonds,” each as defined by the Financing Order and the Environmental Trust Financing Statute, and performing other activities relating thereto or otherwise authorized by the Financing Order, including receipt of “environmental control charges” as defined by and prescribed by the Environmental Trust Financing Statute and application of those funds to service and retire the environmental trust bonds and related expenditures specifically authorized by the Financing Order and the Environmental Trust Financing Statute. The Environmental Trust Financing Statute defines environmental control property to mean the right specified in a financing order to impose, collect, or receive environmental control charges, or to obtain adjustments to such charges as provided in the Environmental Trust Financing Statute, and any interest in such right and all revenues and proceeds arising from the specified right and interest. WIS. STAT. § 196.027(1)(h) (2012). Under the Environmental Trust Financing Statute, environmental trust bonds are defined as “bonds, debentures, notes, certificates of participation, certificates of beneficial interest, certificates of ownership, or other evidences of indebtedness that are issued by an energy utility or an assignee, the proceeds of which are used directly or indirectly to recover, finance, or refinance environmental control costs and financing costs, and that are secured by or payable from environmental control property.” WIS. STAT. § 196.027(1)(j) (2012). The Environmental Trust Financing Statute also provides that “[e]nvironmental control property specified in a financing order shall continue to exist until the environmental trust bonds issued pursuant to the order are paid in full and all financing costs of the bonds have been recovered in full.” WIS. STAT. § 196.027(5)(a)(2) (2012).
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Pursuant to the Financing Order, the Issuing Entity is issuing the Bonds under an indenture, dated as of the date hereof (the “Base Indenture”), between the Issuing Entity and U.S. Bank, National Association, as indenture trustee (the “Indenture Trustee”), and a series supplement thereto, dated as of the date hereof (together with the Base Indenture, the “Indenture”) between the Issuing Entity and the Indenture Trustee. Pursuant to an environmental control property purchase and sale agreement, dated as of the date hereof, between Wisconsin Electric and the Issuing Entity, Wisconsin Electric sold, assigned and transferred to the Issuing Entity the environmental control property created pursuant to the Financing Order (the “Environmental Control Property”), which includes the right to impose, collect and receive the environmental control charges authorized in the Financing Order (the “Environmental Control Charges”). Under the Indenture, the Indenture Trustee holds, among other things, the Environmental Control Property as collateral security for the payment of the Bonds. The Financing Order provides that the Bonds are environmental trust bonds, the Environmental Control Property is environmental control property, and the Environmental Control Charges are environmental control charges, in each case, within the meaning of the Environmental Trust Financing Statute.
The Financing Order finds that, among the credit enhancements for the Bonds enacted by the Environmental Trust Financing Statute, the State of Wisconsin has pledged, for the benefit and protection of bondholders, that it will not take or permit any action that would impair the value of environmental control property, or, except for the true-up adjustment expressly allowed by the Environmental Trust Financing Statute, WIS. STAT. § 196.027(8)(2) (2012), reduce, alter, or impair the environmental control charges to be imposed, collected and remitted to bondholders, until the principal, interest and premium, and any other charges incurred and contracts to be performed in connection with the related environmental trust bonds have been paid and performed in full. This state pledge (the “State Pledge”) provides as follows:
(8) State pledge.
(a) In this subsection, “bond-holder” means a person who holds an environmental trust bond.
(b) The state pledges to and agrees with bondholders that the state will not do any of the following:
1. Take or permit any action that impairs the value of environmental control property.
2. Except as allowed under this section, reduce, alter, or impair environmental control charges that are imposed, collected, and remitted for the benefit of the bondholders until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with environmental trust bonds held by the bondholders are paid or performed in full.
(c) Any person who issues environmental trust bonds is allowed to include the pledge specified in par. (b) in the bonds and relating documentation.
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Ordering Paragraph 6 of the Financing Order provides that the Issuing Entity, when issuing the Bonds, is authorized, pursuant to Section (8)(c) of the Environmental Trust Financing Statute and the Financing Order, to include the State Pledge with respect to environmental control property and environmental control charges in any documentation relating to the Bonds as provided for in Section 8(b) of the Environmental Trust Financing Statute. Wis. Stat. § 196.027 (2012).
For the purposes of our opinions herein we assume the Issuing Entity is duly constituted and the relevant transactions described above have occurred in compliance with the Financing Order and the Environmental Trust Financing Statute, that the Environmental Trust Financing Statute is valid and that the evidences of indebtedness, securities, and agreements related to the subject financing are duly issued, executed, valid and binding in all pertinent respects.
| I. | QUESTIONS PRESENTED AND OPINIONS |
You have requested our opinions as to:
(1) Whether the State Pledge would be held by a court of competent jurisdiction to create a contractual relationship between the State of Wisconsin and the holders of the Bonds (the “Bondholders”) for purposes of the “Contract Clause” of the United States Constitution, U.S. Const. art. 1, § 10, cl.1;
(2) whether Bondholders (or the Trustee on their behalf) would be successful in in challenging under the Contract Clause the constitutionality of legislation passed by the Wisconsin Legislature (“Legislature”) that becomes law or any action of the PSCW1 exercising legislative powers (collectively referred to herein as “Legislative Action”) prior to the time that the Bonds and related financing costs are fully paid and discharged that in either case limits, alters, impairs or reduces the value of the Environmental Control Charges or the Environmental Control Property provided for by the Financing Order;
1 Each opinion reference to the PSCW includes any state agency that is a successor to the PSCW exercising legislative authority (i.e., rulemaking authority). .
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(3) whether a federal court would grant preliminary injunctive relief or permanent injunctive relief under federal law to prevent implementation of Legislative Action that limits, alters, impairs or reduces the value of the Environmental Control Property or the Environmental Control Charges; and
(4) whether a court of competent jurisdiction would hold, under the “Takings Clause” of the Fifth Amendment to the United States Constitution, U.S. Const. amend. V, as made applicable to the States by the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, that the State could not take any action in contravention of the State Pledge without paying just compensation to the Bondholders if doing so (a) constituted a permanent appropriation of the property interest of bondholders in the Bonds or the Environmental Control Property or a denial of all economically beneficial or productive use of the Environmental Control Property; (b) destroyed the Environmental Control Property; or (c) substantially limited, altered, impaired or reduced the value of the Environmental Control Property in a manner that inflicts a severe economic impact on such bondholders and unduly interferes with their reasonable expectations, unless adequate provision shall be made by law for the protection of the bondholders.
Based upon our review of the pertinent statutory and constitutional provisions and relevant reported decisions, and subject to the qualifications, limitations and assumptions (including the assumption that any impairment would be substantial) set forth in this letter, it is our opinion that a court of competent jurisdiction, in a properly prepared and presented case, would conclude:
(1) that the State Pledge creates a contractual relationship between the Bondholders and the State for purposes of the Contract Clause;
(2) absent a demonstration by the State that a substantial impairment of such contract is reasonable and necessary to further a significant and legitimate public purpose, the Bondholders (or the Trustee acting on their behalf) could successfully challenge under the Contract Clause the constitutionality of Legislative Action subsequently enacted, determined by such court to limit, alter, impair or reduce the value of the Environmental Control Charges of the Environmental Control Property so as to cause a substantial impairment of the Bond obligations prior to the time that the Bonds and related financing costs are fully paid and discharged;
(3) that it has the authority and discretion to grant preliminary injunctive relief pending a determination of the merits of the Contract Clause claim, and permanent injunctive relief, and would exercise that discretion in accordance with well-established equitable factors authorizing such relief; although sound and substantial arguments might support the granting of preliminary injunctive relief or permanent injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Charge or the Environmental Control Property in violation of the federal Contract Clause, the decision to do so will be in the discretion of the court requested to take such action, which will be exercised on the basis of the considerations discussed in this opinion letter; and
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(4) that the Takings Clause would prohibit the State from acting in contravention of the State Pledge, after the Bonds are issued but before the Bonds are fully paid, without paying just compensation to Bondholders if the court determines such action in contravention of the State Pledge, (a) constituted a permanent appropriation of the property interest of bondholders in the Bonds or the Environmental Control Property or a denial of all economically beneficial or productive use of the Environmental Control Property; (b) destroyed the Environmental Control Property; or (c) substantially limited, altered, impaired or reduced the value of the Environmental Control Property in a manner that inflicts a severe economic impact on such bondholders and unduly interferes with their reasonable expectations, unless adequate provision shall be made by law for the protection of the bondholders.
This opinion is limited to the federal laws of the United States of America. Courts apply the Contract Clause and the Takings Clause on a case-by-case basis, applying the pertinent constitutional text and relevant judicial precedent to the specific facts before the courts. A ruling on preliminary or permanent injunctive relief also depends upon the specific facts and circumstances before a court. We further note that we are not aware of any reported controlling judicial precedents that are directly on point. Our analysis therefore necessarily represents a reasoned application of the pertinent constitutional and statutory provisions informed by judicial decisions involving similar or analogous circumstances. Moreover, the application of equitable principles, including the determination whether to grant or deny preliminary or permanent injunctive relief, is subject to the discretion of the court being asked to grant such relief. We cannot predict the facts and circumstances that will be present in the future and may be relevant to the exercise of such discretion or the determination of the merits. Our opinion is neither a guarantee of the outcome nor a recommendation as to the forum2 or form of relief to seek. The recipients of this letter should take these considerations into account in analyzing the risks associated with the subject transaction.
| II. | ANALYSIS OF THE CONTRACT CLAUSE |
The Contract Clause of the United States Constitution (“[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts”)3 restricts the power of States to disrupt contractual arrangements if (1) the state law operates as a substantial impairment of a contractual relationship and (2) the state law is not drawn in an appropriate and reasonable way that advances “significant and legitimate public purpose.” Sveen v. Melin, ___ U.S. ___, 138 S. Ct. 1815, 1821–22(2018) (quoting Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–12 (1983)); see also United States Trust Co. v. New Jersey, 431 U.S. 1, 15, 21–22 (1977).4
2 The “Supremacy Clause” of the United States Constitution, U.S. Const., art. VI, cl. 2, requires state courts to apply the United States Constitution to matters arising under their jurisdiction. Testa v. Katt, 386,394 (1947). With respect to the availability of injunctive relief our opinion solely addresses the standards applied by federal courts. We express no opinion as to the preferable forum.
3 U. S. Const., art. I, § 10, cl. 1 provides in full: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
4 Energy Reserves Group states the required analysis as having three elements: whether the legislative action operates as a substantial impairment of a contractual relationship; if so, then whether the legislative action is justified by a significant and legitimate public purpose; and, if so, whether the adjustment of the rights and responsibilities of the contracting parties is reasonable and appropriate to the public purpose behind the legislative action. 459 U.S. at 411–12. Our opinion addresses each of these elements.
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A. Substantial State Law Impairment of a Contractual Obligation
The United States Supreme Court addresses the question of whether state Legislative Action results in a substantial state law impairment of contractual obligations in terms of three elements: whether there was a contract, whether a change in state law has impaired contractual obligations, and whether the impairment is substantial. See General Motors Corp. v. Romein, 503 U.S. 181, 186 (1992); see also Energy Reserves Grp., 459 U.S. at 410; Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978); Alarm Detection Systems, Inc. v. Village of Schaumberg, 930 F. 3d 812, 822 (7th Cir. 2019).
1. Contractual Relationship between Bondholders and the State of Wisconsin
Whether a contractual relationship and resulting obligations exists within the meaning of the Contract Clause is a federal question to be determined in accordance with judicially established standards. General Motors Corp. v. Romein, 503 U.S. 181, 187 (1992); Irving Trust Co. v. Day, 314 U.S. 556, 561 (1942); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938); Appelby v. City of New York, 241 U.S. 364, 380 (1926).
Although the deliberations resulting in inclusion of the Contract Clause in the Constitution reflect disapproval of state laws absolving debts incurred during the Revolutionary War, the scope of the Contract Clause extends to all contracts, including contracts between private parties and contracts between a state and private parties. See U.S. Trust, 431 U.S. at 15. See also Trs. of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 651 (1819); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137–139 (1810); Sveen, 138 S.Ct. at 1821; Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 502–503 (1987); Allied Structural Steel, 438 U.S. at 244–245, n. 16.
The Supreme Court recognizes that the fundamental purpose of the Contract Clause is “to encourage trade and credit by promoting confidence in the stability of contractual obligations. . . .” U.S. Trust, 431 U.S. at 15 (citing Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 427–28 (1934)). A unilateral expectation arising from state law does not result in a contractual obligation protected by the Contract Clause against changes in state law. Id. at 22. In General Motors Corp. v. Romein, an employer won a hard fought appeal concerning the proper construction of an employee benefits coordination law in state court only to have the state legislature amend the statute. 503 U.S. 181, 187 (1992). The Supreme Court found the state never to have made a contractual commitment to employers to refrain from changing the law. Id. at 187. Because state legislatures generally enact laws to establish policy, the enactment of a contractual commitment is unusual and will not be implied. Nat’l R. Passenger Corp. v. Atchison Topeka & Santa Fe R. Co., 470 U.S. 451, 466 (1985). Despite the “principal function of a legislature” being “to make laws which declare the policy of the state and are subject to repeal,” nevertheless a “legislative enactment may contain provisions which, when accepted as the basis of action by individuals, become contracts.” Anderson, 303 U.S. at 100. For legislation to create a contractual obligation between the state and private parties, the legislation must include an adequate expression of an actual intent to create a contractual obligation. Nat’l Rail Passenger, 470 U.S. at 467–68.
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Thus, for example, statutes establishing tenure of public school teachers typically express a legislative policy which the legislature is free to change without consequence under the Contract Clause.5 In Anderson, however, the State of Indiana enacted state teacher tenure laws committing to employment terms in express contractual language, and, accordingly, those commitments have been protected from substantial impairment by federal courts applying the Contract Clause. 303 U.S. at 100; see also Elliott v. Bd. of Sch. Trs. of Madison Consolidated Schs., 876 F. 3d 926 (7th Cir. 2017) (overturning law impairing statutory tenure entitlements).6 With respect to the legal standard to find the existence of a legislated contractual obligation, U.S. Trust provides the following guidance: “In general, a statute is itself treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State.” 431 U.S. at 18, n 14.
The State Pledge includes an express statement of the intent of the State of Wisconsin to create an obligation to refrain from impairment of security for the Bonds:
The state pledges to and agrees with bondholders that the state will not do any of the following . . . 1. Take or permit any action that impairs the value of environmental control property . . . 2. Except as allowed under this section, reduce, alter, or impair environmental control charges that are imposed, collected, and remitted for the benefit of the bondholders until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with environmental trust bonds held by the bondholders are paid or performed in full. . . . Any person who issues environmental trust bonds is allowed to include [the foregoing] pledge… in the bonds and relating documentation
Wis. Stat. § 196.027(8)(b) (2012) (emphasis added).
Although the State Pledge does not use the term “contract” it expresses an equivalent formal commitment to be bound with respect to obligations incurred pursuant to the Environmental Trust Financing Statute and the Financing Order. A “pledge” in this context is “a binding promise or agreement to do or forbear.” Webster’s New Collegiate Dictionary 882 (G.C. Merriam Co., 1975). The State Pledge is similar to the language in issue in U.S. Trust. In U.S. Trust, port authority financing legislation enacted by New York and New Jersey provided that the two states “covenant and agree with each other and with the holders of any affected bonds” that the Port Authority would not “apply any of the . . . revenues or reserves . . . pledged in whole or in part as security for such bonds, for any railroad purposes whatsoever other than permitted purposes hereinafter set forth.” 431 U.S. at 9–10. The Supreme Court found “[t]he intent to make a contract is clear from the statutory language: ‘The 2 States covenant and agree with each other and with the holders of any affected bonds. . . .’” Id. at 18. The intent to make a contract is no less clear from the language of the State Pledge. The term “covenant” used in the legislation U.S. Trust addressed has the same signification and meaning as the term “pledge” in the State Pledge: a “binding agreement.” Webster’s New Collegiate Dictionary 262 (G.C. Merriam Co., 1975).
5 Phelps v. Bd. of Educ. of West N.Y., 300 U.S. 319, 323 (1937), is an example of a tenure statute that merely enacted a policy subject to legislative revision.
6 The United States District Courts in Wisconsin are located within the geographic boundary of the United States Court of Appeals for the Seventh Circuit, whose decisions are considered controlling precedent within that circuit.
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The State Pledge also serves the same contractual function as part of the consideration or quid pro quo for investment as did the states’ covenant in New York. Both induce investment on favorable terms in return for the states’ express undertakings and are examples of legislative enactments containing provisions which, “when accepted as the basis of action by individuals, become contracts.” Anderson, 303 U.S. at 100. The relevant language in the State Pledge is as follows: “the state pledges and agrees with bondholder,” with “bondholder” defined as a person who holds and environmental trust bond.” Wis. Stat. § 196.027(8)(a)–(b) (2012) Environmental trust bonds qualifying for the State Pledge are only issued pursuant to a PSCW issued Financing Order making all of the following findings:
a. That the order will result in lower overall costs to customers than would alternative methods of financing environmental control activities;
b. That the proposed structuring and expected pricing of the environmental trust bonds will result in the lowest environmental control charges that are consistent with market conditions and the terms of the financing order; and
c. That the financing order is otherwise consistent with the public interest, and is prudent, reasonable, and appropriate.
Wis. Stat. § 196.027(2)(b) (2012).
U.S. Trust found the function of the states’ covenant was to secure “marketability of Port Authority bonds.” 431 U.S.at 18. The State Pledge serves the substantially same function as the states’ covenant in U.S. Trust of contributing to the marketability of the bonds through providing security of payment. Id. at 19.
U.S. Trust and precedent following it indicate a court will find the relevant Wisconsin statutory provisions sufficient to create a contractual relationship between the Bondholders and the State of Wisconsin. Shortly after U. S. Trust was decided, the New York Court of Appeals relied upon the decision to apply the Contract Clause to invalidate a state statute revoking an authorized toll increase and imposing a new restrictive procedure for toll increases because New York had enacted a statutory pledge not to interfere with authorized toll increases and not to limit or alter the rights vested in the authority to the detriment of bondholders. Patterson v. Carey, 363 N.E. 2d 1146, 1152–53 (1977). In Patterson, the tolls were the sole source of revenue for repayment of the bonds issued to finance the highway, consistent with the Environmental Control Property and Environmental Control Charges serving as the sole source of repayment for the Bonds. Id. at 1150–51. Although a decision of the New York Court of Appeals is only persuasive authority, the State of Wisconsin’s decision to enact a statutory structure and state pledge language similar to prominent examples previously found to create a contractual obligation “evince[s] a legislative intent to create private rights of a contractual nature enforceable against the State,” U.S. Trust, 431 U.S. at 17–18, and provides “an adequate expression of an actual intent” to enter into a contractual relationship with Bondholders. Nat’l R. Passenger, 470 U.S. at 467–68 (quoting Wis. & Mich. R. Co. v. Powers, 191 U.S. 379, 386–87(1903)).
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In reaching our opinion concerning the existence of a contract under the Contract Clause, we have considered the “reserved powers” doctrine. That doctrine concerns alleged contracts where the state purportedly binds itself to waive inherent attributes of its sovereign status, including the ability to exercise the power of eminent domain and the authority to exercise its legislative authority to enact laws for the public health, safety, and welfare (the “police power” of the state). A state contract purporting to contract away the state’s reserved powers is void. U.S. Trust, 431 U.S. at 23.
In U.S. Trust the Court considered the scope of the “reserved powers” doctrine and held the doctrine does not prevent a state government from entering into binding financial obligations such as the covenant restricting the use of bond proceeds in order to preserve liquidity and bondholder security: “Whatever the propriety of a State's binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned.” Id. at 24.
The State Pledge serves to protect investment in bonds issued by a private special purpose entity, not a state political subdivision, authority or agency. But the Bonds are only issued when approved by the state in accordance with statutory standards designed to advance a public goal. They are issued by a limited special purpose entity existing for the authorized financing purpose only and acting as directed by state law including the Finance Order. Wis. Stat. § 196.027(1)(h)(1), (2)(b) (2012). In our view, the financial nature of the commitment by the State is the determining factor in the analysis under the police powers, not the nature of the entity that is the debt obligor. See Patterson, 363 N.E. 2d at 1152–53 (public benefit corporation issued debt, not a state agency or political subdivision).
A court applying the Contract Clause will likely consider Wisconsin’s establishment of a self-liquidating environmental trust financing mechanism assured by the State Pledge to intrude no more on the state’s reserved powers, including police power or eminent domain authority, than the statutory financial covenant enforced against repeal by the Supreme Court in U.S. Trust. The protected value of the environmental control property is simply the expected stream of payments to service and retire the bonded debt: “[e]nvironmental control property specified in a financing order shall continue to exist until the environmental trust bonds issued pursuant to the order are paid in full and all financing costs of the bonds have been recovered in full.” Wis. Stat. § 196.027(5)(a)(2) (2012). The environmental control charges are designed solely to the end of recovery of those costs. Wis. Stat. § 196.027 (1)(e), (2)(a)-(b) (2012). We are of the view that a court would find the State Pledge to be sufficiently analogous to the “purely financial” state promise addressed by U.S. Trust so that it “may not be said automatically to fall within the reserved powers that cannot be contracted away . . . and thus not necessarily a compromise of the State’s reserved powers.” Id. at 24–25. Based upon its plain meaning and statutory and factual context, the State Pledge satisfies the legal standards of an unmistakably clear and constitutionally permissible contractual commitment by the State no less than the financial covenants at issue in U.S. Trust.7
7 In order for a federal court to proceed on a complaint it must have jurisdiction over a ripe case or controversy between a plaintiff with standing to sue and a defendant subject to suit. Our Opinion assumes that either Bondholders or their Trustee could establish standing and a ripe case or controversy. We also assume the facts giving rise to the Contract Clause claim and desired relief permit a well-pleaded complaint to establish federal jurisdiction, such as under the general federal question jurisdiction of U.S. District Courts, 28 U.S.C.§ 1331. See Elliott, 876 F. 3d at 931–32; Lipscomb v. Columbus Mun. Separate Sch. Dist., 259 F.3d 494, 512 (5th Cir 2001) (finding federal question jurisdiction).
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2. A Change in State Law Impairing a Contractual Obligation
In Blaisdell, the Supreme Court summarized the standard for finding a change in state law to constitute an impairment of the obligations of a contract, stating that “the obligations of a contract are impaired by a law which renders them invalid, or releases or extinguishes them” and also by “laws which without destroying contracts derogate from substantial contractual rights.” Blaisdell, 290 U.S. at 431–32 (citations omitted). The Court noted various outcomes when the change in law modified or eliminated a specific contractual remedy. Blaisdell at Id. at 432–-33. The question of whether a challenged Legislative Action will be found to impair a contractual obligation necessarily will turn upon the extent the specific Legislative Action is inconsistent with the State Pledge and the provisions of the Environmental Trust Financing Statute incorporated within the State Pledge. The example of revocation of covenants providing assurances of payment of bonded obligations referenced in U.S. Trust, discussed supra, and Von Hoffman v. City of Quincy are examples where the question of technical impairment was not in doubt and the court moved quickly to the question of whether it was a substantial impairment. 71 U.S. 531, 554–55 (1867) (finding statutory covenant to exercise municipal taxation power to fund repayment of bonds to create an enforceable obligation protected by the Contracts Clause and finding constitutional impairment by rejecting the use of the characterization of the covenant to increase taxes as a mere remedy and therefore not part of the core contractual bargain); U.S. Trust, 431 U.S. at 19 (holding the credit support provided by a covenant restricting certain expenditures was not mere surplusage but instead established a substantial contractual obligation).
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Regardless of the form of the change in law, a claim under the Contract Clause must challenge a law passed after the obligation of the contract in question has been created. General Motors, 503 U.S. at 186 (1992). An alleged misapplication of law existing at the time of entry into the contract presents no basis for a claim under the Contracts Clause. New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U.S. 18, 30 (1888) (“[N]ot only must the obligation of a contract have been impaired, but it must have been impaired by a law of the State. The prohibition is aimed at the legislative power of the State, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.”) The law, however, may issue from an agency of the state such as the PSCW acting pursuant to delegated legislative authority. Ross v. Oregon, 227 U.S. 150, 162–63 (1913) (citations omitted) (construing Ex Post Facto Clause relying on Contract Clause precedent).
Grant TrunkW. Ry. Co. v. R.R. Comm’n of Ind., 221 U.S. 400 (1911), addressed a state railroad commission order requiring an interconnection of two railroads in accordance with a statute enacted after the railroads had entered into contracts concerning the subject matter. The Court found the orders themselves to have force and effect of law and therefore could be the basis for a complaint based upon an alleged violation of the Contract Clause, but found against the plaintiffs on the merits because the regulation of railroad interchanges was foreseeable given the regulated nature of the industry. In denying a preliminary injunction based on an absence of irreparable harm in Wisconsin Cent. R.R. v. PSC, 95 F. 3d 1359 (7th Cir. 1996), the Court of Appeals treated a new rule of the PSCW, adopted pursuant to recently enacted statutory authority, compelling railroads to afford co-location of utilities on their right of way as a law for purposes of the Contract Clause, but affirmed a denial of preliminary relief based on provision for just compensation to be determined and the absence therefore of irreparable harm. In both these cases the specific enabling legislation postdated the contracts. We are not able to opine that the PSCW’s well defined administrative duties under the Environmental Trust Financing Statute would constitute legislative activity within the Contract Clause because their purpose is “not to prescribe a new law for the future, but only to apply to a completed transaction laws which were in force at the time.” Ross, 227 U. S. at 163. In summary, a complaint seeking relief under the Contracts Clause based upon a PSCW decision, as opposed to the Legislature’s passage of an amendment or repeal of the Environmental Trust Financing Statute, would need to allege that the PSCW acted in a legislative capacity in substantially impairing the obligations of the Bonds issued subject to the State Pledge, such as by adopting a rule antithetical to the State Pledge, as opposed to making an error of a ministerial nature in carrying out its statutory obligations under the Environmental Trust Financing Statute.
3. Substantial Nature of Impairment
In answering the question of whether the Legislative Act causes a substantial impairment of a contractual obligation, the Supreme Court “has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights.” Sveen, 138 S. Ct. at 1821 (citations omitted); see also Allied Structural Steel, 438 U.S. at 244, 246; Texaco, Inc. v. Short, 454 U.S. 516, 531 (1982); El Paso v. Simmons, 379 U.S. 497, 514–15 (1965). As discussed below, where the legislative modification of contractual rights occurs in the context of a regulated industry, such as electric utilities or banks, the Court is less included to find a substantial impairment of contractual obligations because the contracting parties accepted from the outset that their contract was subject to the Legislative Action. The Environmental Trust Financing Statute and Financing Order establish the Issuing Entity solely as a separate trust financing vehicle with no public service or public utility service obligations and without PSCW regulation or oversight apart from the administration of the statutory provisions in accordance with the Financing Order and the Environmental Trust Financing Statute. Despite this separation of the financing and payment obligations from utility service and rate regulation, each payor of the environmental trust financing charges is a distribution customer of the regulated utility and the PSCW retains its jurisdiction over the public utility affiliate of the Issuing Entity. Whether these factors might affect the determination of when certain Legislative Action constitutes a substantial impairment would likely depend on the nature of the Legislative Action (in particular the extent to which it is directed to the Issuing Entity and its obligations subject to the State Pledge or the public utility affiliate), the extent to which it was squarely inconsistent with the State Pledge and its anticipated practical effect.
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In applying the Contract Clause to preserve the statutory security terms of the bonded debt of a state authority against repeal, U.S. Trust recognized, as had Blaisdell, that a substantial impairment can be one that derogates from substantial contract rights, such as security provisions even if the result does not render the creditor’s interest worthless. In U.S. Trust, the effect of the repeal of the covenant limiting subsidies of mass transit was difficult to quantify because the securities recovered much of their price following an initial decline in value and retained an “A” rating. 431 U.S. at 18–19. U.S. Trust distinguished the Port Authority bonds case from circumstances where one form of credit enhancement or statutory creditor remedy is substituted for another or a statute permits an insolvent debtor to reorganize with the intent of benefitting creditors and discharging debt obligations. 431 U.S. at 19, n.17, 27–78 (citing Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 504, 511, 513 (1942)), and found a substantial impairment of concern:
As a security provision, the covenant was not superfluous; it limited the Port Authority's deficits and thus protected the general reserve fund from depletion. Nor was the covenant merely modified or replaced by an arguably comparable security provision. Its outright repeal totally eliminated an important security provision and thus impaired the obligation of the States' contract.
Id. at 19.
The determination of whether a particular Legislative Action constitutes a substantial impairment of a particular contract is a fact-intensive analysis, and nothing in this letter expresses any opinion as to how a court would resolve the “substantial impairment” issue with respect to the Financing Order, the Environmental Control Property, or the Bonds, vis-à-vis a particular Legislative Action. Accordingly, we have assumed for purposes of this letter that any impairment resulting from a challenged Legislative Action would be substantial.
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| B. | Whether the Law is Drawn in an Appropriate and Reasonable Way that Advances a Significant and Legitimate Public Purpose |
If the foregoing analysis leads to a conclusion that the state Legislative Action substantially impairs a contractual obligation, the inquiry turns towards the means and ends of the state Legislative Action in order to determine “whether the state law is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose.” Sveen, 138 S.Ct. at 1821 (quoting Energy Reserves Group, 438 U.S. at 411–412); see also U.S. Trust, 431 U.S. at 22 (Laws “adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption.”) U.S. Trust explained why the Contracts Clause provides no absolute protection of contracts from the effects of state legislation as follows:
Although the Contract Clause appears literally to proscribe "any" impairment, this Court observed in Blaisdell that "the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula." 290 U.S., at 428, 54 S.Ct., at 236. 290 U.S., at 428, 54 S.Ct., at 236.Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether that impairment is permitted under the Constitution. In the instant case, as in Blaisdell, we must attempt to reconcile the strictures of the Contract Clause with the "essential attributes of sovereign power," id., at 435, 54 S.Ct. at 239, necessarily reserved by the States to safeguard the welfare of their citizens. Id., at 434-440, 54 S.Ct. at 238-240.
431 U.S. at 21, 25 (“As with laws impairing the obligations of private contracts, an impairment [of a state contract] may be constitutional if it is reasonable and necessary to serve an important public purpose.”)
In the Blaisdell decision, the Court upheld a state law instituting an emergency moratorium on mortgage foreclosures during the Great Depression. In finding that the temporary legislative impairment of mortgage foreclosure rights did not violate the Contract Clause, the Court specifically relied upon the state’s residual authority “to safeguard the vital interests of its people” and five additional factors: (1) a state legislative finding of an emergency need to protect homeowners, (2) the challenged law protected a basic societal interest, not a favored group, (3) the relief was appropriately tailored to the emergency that it was designed to meet, (4) the imposed conditions were reasonable, and (5) the legislation was limited to the duration of the emergency. 290 U.S. at 434, 443-447. Subsequent decisions affirmed state legislation of a non-emergency nature modifying private contractual rights based upon proof of a public purpose and the legislative amendment being responsive to that purpose, but on occasion struck down as unconstitutional state laws with a disproportionate adverse effect on creditors. Veix v. Sixth Ward Bldg. & Loan Ass’n, is notable because it upheld a non-emergency statutory revision of the right to redeem savings and loan ownership shares. 310 U.S. 32 (1940). The Court relied upon older authority, which affirmed statutes providing for modification of utility contract rates, and the fact that savings and loan associations had been subject to continuous statutory regulation from the outset of the industry, indicating a heightened role for legislative action and a lower expectation of absolute freedom of contract. See generally id. None of these decisions addressed an express covenant with the state itself such as is presented by the State Pledge.
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In U.S. Trust, the Court applied stricter scrutiny to the state law repealing the covenant restricting certain uses of Port Authority revenues, finding that the “the scope of the State's reserved power depends on the nature of the contractual relationship with which the challenged law conflicts.” 431 U.S. at 21–22. The Court found that a stricter test should apply to financial contracts where the state is a party, a conclusion reflecting a strong tendency in Supreme Court decisions to uphold financial covenants in financings sponsored by state government. The decision stated that stricter scrutiny is needed because the state is an interested party and therefore has a fiscal incentive to enact measures to its advantage—a rationale the dissenting opinion questioned, noting the absence of prior authority adopting that rationale. Id. at 59 (Brennan, J., dissenting). The Court has noted that “[i]n almost every case, the Court has held a governmental unit to its contractual obligations when it enters financial or other markets.” Energy Reserves Group, 438 U.S. at 412; see also U.S. Trust, 431 U.S. at 22 (“[T]he Court has regularly held that the States are bound by their debt contracts.”).
In U.S. Trust, involving contracts to which the state was a party, the Court viewed the policy of encouraging mass transit to be (i) a policy that existed prior to the original Port Authority financing act creating the covenant restricting expenditures for mass transportation, (ii) not to constitute an emergency, and (iii) not warranting as reasonably necessary the total repeal of the covenant. U.S. Trust, 431 U.S. at 30–32. The Supreme Court reversed the New Jersey Supreme Court’s ruling finding the repeal of the bond covenant to be an appropriate exercise of the police power, finding it instead to violate the Contract Clause. While we cannot guarantee that the stricter scrutiny applied in U.S. Trust will be applied to Legislative Action in derogation of the pertinent Environmental Trust Financing Statute provisions here—even absent the full degree of scrutiny U.S. Trust applied to laws impairing the obligations of contracts made by the state supporting state authority financings—U.S. Trust reaffirms that the Contract Clause provides meaningful review of state Legislative Action that substantially impairs the obligations of contracts made by the state under a standard requiring that Legislative Action “adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption.” Id. at 22.
Addressing whether a state law enlarging upon private contractual obligations potentially impairs the obligations of those contracts, the Supreme Court applied the Contracts Clause in Allied Structural Steel to invalidate a Minnesota law imposing upon a narrowly defined class of employers’ pension funding obligations, which exceeded the class’s contractual obligations triggered by a plant closure and relocation out-of-state. 438 U.S. at 234. First, the Court found the state law to have an unquestionable impact upon the employer’s contractual relations with its employees and “substantially altered those relationships by superimposing pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake.” Id. at 241. After reaffirming the necessity to apply the Contract Clause in light of the reserved police powers of the State, the Court reaffirmed the general standard of review of Legislative Action articulated in U.S. Trust:
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Despite the customary deference courts give to state laws directed to social and economic problems, [legislation] adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption.
Id. at 243 (quoting U.S. Trust, 431 U.S. at 22.)8
Allied Structural Steel then explained the effect of the significance of impairment upon the standard of review as follows
The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation. The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of private contracts. Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them.
Id. at 245 (footnote omitted).9
In Energy Reserves Group, the Court restated the framework of Contract Clause analysis as first finding whether a new law substantially impairs a contractual relationship, and then ascertaining whether a significant and legitimate public purpose supports the regulation, such as remedying a broad and general social or economic problem in order to assure “that the State is exercising its police power, rather than providing a benefit to special interests.” 459 U.S. at 412 (footnote omitted) (citing U.S. Trust, 431 U.S. at 22; Allied Structural Steel, 438 U.S. at 247, 249). Once the burden of showing a significant and legitimate public purpose is satisfied, the final stage of the analysis follows:
Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption.” United States Trust Co., 431 U.S., at 22, 97 S. Ct., at 1518. Unless the State itself is a contracting party, see id., at 23, 97 S. Ct., at 1518, … ‘[as] is customary in reviewing economic and social regulation, … courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure."
8 Allied Structural Steel also noted U.S. Trust applied stricter scrutiny to a state law modifying its own contracts. 438 U.S. at 244, n15.
9 The Supreme Court references El Paso v. Simmons, 379 U.S. 497 (1965), as a case where there was no substantial impairment. Allied Structural Steel, 438 U.S. at 245, n. 14, 17.
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459 U.S. at 412–13 (footnote omitted) (citing U.S. Trust, 431 U.S. at 22– 23).10
Energy Reserves Group did not reach either of the final two steps of this tripartite analysis. Instead, the Court found that the challenged state law restricting the application of price escalation clauses in the context of changing federal energy regulation was not a substantial impairment of contractual obligations. Energy Reserves Group, 459 U.S. at 413–16. The overall intent of the clauses as negotiated was to permit changes in regulated prices to be recognized, not to permit unregulated pricing, and the contracts expressly provided for adjustments reflecting changes in state and federal law. Id. Although expressing a tripartite inquiry, Energy Reserves Group does not undertake to alter previously established substantive standards. Id.
Once a substantial impairment of the contractual obligations is shown, the resolution of whether the Contracts Clause prohibits the Legislative Action requires a fact-specific determination predicated upon the nature of the Legislative Action, specifically the public purpose it serves, the materiality and severity of the contractual modification, and how the advancement of the public purpose relates to the modification to contractual rights. If Legislative Action imposes a severe impairment plainly contrary to the State Pledge, substantial authority supports application of stricter judicial scrutiny than would be applied to laws advancing valid public purposes that have a limited, more incidental effect altering the obligations of contracts between private parties.
10 The Court noted the distinction between laws affecting the obligations of purely private contracts and those relieving the state of its contractual obligations as follows: “In United States Trust Co., but not in Allied Structural Steel Co., the State was one of the contracting parties. When a State itself enters into a contract, it cannot simply walk away from its financial obligations. In almost every case, the Court has held a governmental unit to its contractual obligations when it enters financial or other markets.” Energy Reserves Grp., 459 U.S. at 412, n. 14; see also,U.S. Trust., 431 U.S., at 25–28; W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935); Murray v. Charleston, 96 U.S. 432 (1878); but see Faitoute Iron & Steel, 316 U.S. 502 (1942). “When the State is a party to the contract, ‘complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake.’” Energy Reserves Grp., 459 U.S. at 412, n. 14 (quoting U.S. Trust, 431 U.S. at 26). “In the present case, of course, the stricter standard of United States Trust Co. does not apply because Kansas has not altered its own contractual obligations.” Id. (contrasting Faitoute Iron & Steel, 316 U.S. 502 (1942), whichinvolved a state municipal receivership law applied to an insolvent municipality and found to benefit creditors).
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For these reasons and subject to the qualifications and assumptions stated in this letter it is our opinion that a court of competent jurisdiction, in a properly prepared and presented case:
(1) would conclude that the State Pledge creates a contractual relationship between the Bondholders and the State for purposes of the Contract Clause; and
(2) would conclude, absent a demonstration by the State that a substantial impairment is reasonable and necessary to further a significant and legitimate public purpose, the Bondholders (or the Trustee acting on their behalf) could successfully challenge under the Contract Clause the constitutionality of Legislative Action subsequently enacted, determined by such court to limit, alter, impair or reduce the value of the Environmental Control Charges or Environmental Control Property so as to cause a substantial impairment of the Bond obligations prior to the time that the Bonds and related financing costs are fully paid and discharged.
III. ANALYSIS OF FEDERAL INJUNCTIVE RELIEF FOR CONTRACT CLAUSE CLAIMS
A United States District Court has the authority and discretion to grant preliminary injunctive relief pending a determination of the merits of a Contract Clause claim in accordance with well-established equitable factors authorizing preliminary injunctive relief. The federal district court also has the authority and discretion to grant permanent injunctive relief in accordance with well-established factors authorizing such relief.11 To the extent the State of Wisconsin itself is protected by sovereign immunity from an action in federal court for an act in violation of the Contract Clause, any suit for injunctive relief would likely be brought directly against individual state officials. In Ex Parte Young, the U.S. Supreme Court held that a federal court may issue an injunction to compel a state agent’s obedience to federal law. 209 U.S. 123 (1908). The application of Ex Parte Young requires a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective (i.e., injunctive relief rather than monetary damages). Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (citation and quotation omitted).
Turning first to preliminary injunctive relief, the United States Supreme Court requires federal courts to adhere to the principle that a “preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must establish likelihood of success on the merits, the likelihood plaintiff will suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in plaintiff’s favor, and that an injunction is in the public interest. Id. at 20. See also Republican Party of Illinois v. Pritzker, 973 F.3d 760, 762-63 (7th Cir. 2020) (abrogating earlier circuit authority indicating lesser requirement with respect to likelihood of success on merits). In determining whether to issue a preliminary injunction the court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Id. The Seventh Circuit Court of Appeals has stated that a “"preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008).
11 Federal law would govern an action for injunctive relief brought in a federal court. Applicable state law would govern an action for injunctive relief brought in a state court. Our opinion is limited to federal law and thus is limited to an action for injunctive relief brought in a federal court with respect to a claim under the Contract Clause.
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As Winter confirmed, securing a preliminary injunction restraining the effectiveness of Legislative Action alleged to substantially impair contractual obligations will require the plaintiffs to demonstrate a likelihood of success on the merits. 555 U.S. at 20; see also Alarm Detection Systems, 930 F. 3d at 823; HH-Indianapolis, LLC v. Consol. City of Indianapolis & City of Marion, Ind., 889 F.3d 432, 437 (7th Cir. 2018). The plaintiffs would need to demonstrate that they had standing to proceed based upon actual or threatened injury proximately resulting from the alleged impairment of a vested contractual right. Dodge v. Bd. of Educ., 5 N.E.2d 84, 86, 88 (1936). The failure to make this showing was fatal to the plaintiff’s motion for preliminary injunctive relief in Alarm Detection Systems, where only future renewals of contracts were in question. 930 F. 3d at 824. In Exxon Corp. v. Eagerton, the claim failed because the plaintiffs were not beneficiaries of the allegedly impaired obligation. 462 U.S. 176, 187–89 (1983).
Plaintiffs would also need to allege the threatened injury resulted from Legislative Action. Barrows v. Jackson, 346 U.S. 249, 260 (1953) (The Contract Clause “is directed against legislative action only."); see also Wisconsin Century R.R. v. Wisconsin PSC, 95 F. 3d 1359, 1366 (7th Cir. 1996); Gary Jet Ctr., Inc. v. AFCO AvPORTS Mgmt. LLC, 863 F.3d 718, 723 (7th Cir. 2017); Underwood v. City of Chicago, 779 F.3d 461, 463–64 (7th Cir. 2015).
Within the federal judicial system injunctive relief is always predicated upon showing a threat of irreparable harm and an absence of adequate legal remedies. Winter, 555 U.S. at 20; Beacon Theaters v. Westover, 359 U.S. 500, 506–07 (1959); Wisconsin Century, 95 F. 3d at 1366 (7th Cir. 1996). In Wisconsin Century the Court of Appeals affirmed denial of a preliminary injunction because the plaintiffs could not meet this burden. The PSCW rule establishing a new obligation requiring railroads to permit other utilities to co-locate on their rights of way carried with it a standard compensation provision and permitted a railroad asserting the standard compensation was inadequate to secure review and potential modification of the amount. Accordingly, the railroad plaintiff was unable to show that it would suffer an uncompensated loss in the absence of a preliminary injunction. Irreparable harm is harm that “cannot be repaired” and for which money compensation is inadequate. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir. 1997). “The moving party must demonstrate that he will likely suffer irreparable harm absent obtaining preliminary injunctive relief.” Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017).
In Roland Mach. Co. v. Dresser Indus., Inc., the Seventh Circuit Court of Appeals held a delay in receipt of scheduled payments until final judgment does not present the type of irreparable harm which a preliminary injunction seeks to prevent, absent countervailing circumstances. However, if the State of Wisconsin has not waived its sovereign immunity (or established an alternative means for monetary compensation for loss) with respect to the alleged impairment of the obligations of contracts, then the Eleventh Amendment of the United States Constitution reserving certain rights to the states, including sovereign immunity, will bar any monetary recovery. 749 F.2d 380, 386 (7th Cir. 1984). In such a case, the plaintiffs may be able readily to demonstrate not just a delay in receipt of interest payments until a final judgment, but the absence of any legal remedy (i.e., damages),12 and therefore irreparable harm, because the Eleventh Amendment generally prevents federal courts from imposing remedies that impinge on state treasuries absent a waiver of sovereign immunity. Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247,253–54 (2011); Hans v. Louisiana, 134 U.S. 1, 20 (1890). Further, even if sovereign immunity were not a bar to monetary damages, depending on the nature of the State’s action in violation of the State Pledge, the availability of an adequate remedy at law may be limited by the difficulty in calculating damages.13 The remaining equitable factors affecting the appropriateness of preliminary injunctive relief are highly fact specific, turning upon the facts and circumstances of the specific Legislative Action, its practical effect and the practical effect of either granting or not granting preliminary relief.
12 Wisconsin Century, is an example where the new WPSC rule alleged to impair the obligations of existing right of way agreements also imposed rights of access and provided compensation for that taking found sufficiently adequate to disallow a preliminary injunction. 95 F. 3d at 1366. We do not opine whether any Wisconsin waiver of sovereign immunity or authorized eminent domain process would provide such compensation.
13 See U.S. Trust, 431 U.S. at 19 (“[N]o one can be sure precisely how much financial loss the bondholders suffered” from the repeal of the state pledge.).
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The only difference in the legal standard applicable to permanent injunctive relief and preliminary injunctive relief is permanent injunctive relief requires the plaintiff to prevail on the merits. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2008).
A United States District Court considering a complaint seeking injunctive relief against a PSCW decision establishing an allegedly unlawful and inadequate Environmental Control Charge based upon the Contracts Clause or Takings Clause would also be required to determine whether the Johnson Act, 28 U.S.C.§ 1342,14 restricts its authority to issue injunctive relief. The Johnson Act restriction only applies to an “order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision,” and only applies if all its enumerated conditions are satisfied. Alabama Public Serv. Comm’n v. Southern Ry. Corp., 341 U.S. 316, 350 (1951); Williams v. Professional Transp. Inc., 284 F. 3d 607, 612 (4th Cir. 2002).15 Because the state authorized financing resulting in the issuance of the Bonds depends upon securities markets and therefore interstate commerce, an agency order threatening substantial impairment of the contractual obligations pertaining to the Bonds and the State Pledge likely would have a meaningful effect on interstate commerce and accordingly failing the 28 U.S.C. § 1342(2) condition that “the order does not interfere with interstate commerce” rendering the Johnson Act prohibition of injunctive relief inapplicable. Nucor Corp. v. Nebraska Public Power Dist., 891 F.2d 1343, 1348 (8th Cir. 1989) ( applying 28 U.S.C. § 1342(2) to affirm injunctive relief based upon effect on interstate commerce).
14 “The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C.§ 1342.
15 As these authorities hold, if the injunction is directed against state action other than an “order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision,” the Johnson Act restriction has no applicability. The Issuing Entity provides no public utility services and has been found not to constitute a public utility. Financing Order at 7, 40. Wisconsin Electric’s authority to bill and collect the Environmental Control Charges from its customers is solely in its role as a servicer for the Issuing Entity. Financing Order Par. 19 at 61-62.
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Because the core intent of the Contract Clause is “to encourage trade and credit by promoting confidence in the stability of contractual relations”16 and the State of Wisconsin has by legislation expressly insulated the Bonds from the financial and business risks (including regulatory risks) of the public utility affiliate of the Issuing Entity for the express purpose of relying on financial markets to secure the lowest cost financing feasible for the Bonds, a court will likely find the Johnson Act inapplicable to an injunction restraining state implementation of Legislative Action revoking or otherwise materially inconsistent with the State Pledge provided the other elements essential to equitable relief are demonstrated.
In conclusion, assuming Legislative Action substantially impairing obligations undertaken pursuant to and protected by the Environmental Trust Financing Statute, coincided with an absence of a waiver of sovereign immunity and the Legislative Action provided no means for monetary compensation for threatened and probable losses17, an established process exists, defined by well-settled legal and equitable standards, for Bondholders (or their Trustee) to bring an action in a federal District Court seeking and, upon satisfying those standards and subject to the equitable discretion of the court, obtaining preliminary and permanent injunctive relief. Although sound and substantial arguments might support the granting of preliminary and permanent injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Charge or the Environmental Control Property in violation of the federal Contract Clause, the decision to do so will be in the discretion of the court requested to take such action, which will be exercised on the basis of the considerations discussed above.
For these reasons and subject to the qualifications and assumptions stated in this letter we reach the opinions stated in response to Question 3.
III. TAKINGS CLAUSE ANALYSIS
The Takings Clause of the Fifth Amendment to the United States Constitution (“Nor shall private property be taken for public use, without just compensation”) applies to prohibit violative state action through the Fourteenth Amendment to the United States Constitution. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 122 (1978); Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 235–41(1897). Persons may seek relief for violations of the Takings Clause through actions brought in federal court pursuant to the Civil Rights Act 42 U.S.C. § 1983 and 28 U.S.C. § 1343, in addition to general federal question jurisdiction, 28 U.S.C.§ 1331.
16 U.S. Trust, 431 U.S. at 16.
17 In the event a waiver of sovereign immunity or another mechanism makes monetary relief available, the ability to demonstrate irreparable harm arising from the need to seek the compensation offered or delay in recovery become more problematic and fact dependent.
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The purpose of forbidding uncompensated takings of private property for public use18 is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). While the Takings Clause reads initially as a broad prohibition, its effect is to authorize the federal and state governments to take private property for a public purpose conditioned upon the payment of just compensation. First English Evangelical Lutheran Church v. Los Angeles Cnty., 482 U.S. 304, 316, n.9 (1987) (The Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.”)
The question of just compensation addresses “what has the owner lost, not what has the taker gained.” Boston Chamber of Com. v. Boston, 217 U.S. 189, 195 (1910). The pecuniary value of the loss is usually gauged by the extent to which the taking deprived the owner of his ownership or dominion interest in his property, measured by the value of the property at the time of the taking. Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 5 (1984).
The Supreme Court recognizes a categorical obligation for the government to compensate a property owner when it imposes a permanent physical invasion of the property. Lingle v. Chevron USA, Inc., 544 U.S. 528, 538 (2005); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). A second categorical requirement for compensation arises when state regulatory impositions completely deprive an owner of “all economically beneficial us[e]” of her property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (emphasis in original). The Court held in Lucas that the government must pay just compensation for such “total regulatory takings,” except to the extent that “background principles of nuisance and property law” independently restrict the owner's intended use of the property. 505 U.S. at 1026–1032.19
18 The initial determination of whether a taking is a public use is for the legislature to make, Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 239–40 (1984), and federal courts afford substantial deference to these determinations “unless the use be palpably without reasonable foundation.” United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680 (1896); see also Berman v. Parker, 348 U.S. 26, 31–33(1954); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925); Wisconsin Cent.,93 F. 3d at 1367.
19 The Supreme Court has recognized an exception to the requirement of compensation when a taking by the government is necessitated by an imminent emergency requiring immediate government action, including the destruction of physical facilities about to be captured by an enemy, or about to contribute to a fire. United States v. Caltex (Philippines), Inc, 344 U.S. 149, 154 (1952) (destruction required by World War II military necessity to avoid enemy capture and use of strategic facilities foreclosed any requirement of compensation); Bowditch v. Boston, 101 U.S. 16, 18–19 (1879) (invoking common law to find government immunity applies to destroying property to prevent imminent fueling of an ongoing fire). The exception has not been extended to intangible financial property.
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In additional to tangible property20, the United States Supreme Court has found contract rights and other intangible rights may constitute “property” within the meaning of the Takings Clause. Lynch v. United States, 292 U.S. 571, 579 (1934) (holding valid contracts are property within meaning of the Taking Clause); James v. Campbell, 104 U.S. 356, 358 (1882) (treating government appropriation of patent rights as equivalent to physical taking); see also U.S. Trust, 431 U.S. at 19, n.16. The Environmental Trust Financing Statute provides that it creates a property right in environmental trust property in addition to the contractual rights established for the repayment of indebtedness.21
In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the Supreme Court first expanded its interpretation of the protection of the Takings Clause to more than direct appropriations of property, holding that compensation was also required for a “regulatory taking,” meaning a government restriction on the use of property that went “too far.” 260 U.S. at 415; see also Lucas, 505 U.S. 1003, 1019 (1992). In Penn Central, the Court explained that the test for when regulatory impositions become a taking, as opposed to merely a change in law that members of the public must accept without compensation, requires an “ad hoc” factual consideration of factors such as the economic impact of the regulation on the affected party, its interference with reasonable investment-backed expectations, and the character of the government action, such as whether the alleged taking amounts to a physical invasion or instead affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the common good.” 434 U.S. at 124. For example, in Connolly v. Pension Benefits Guar. Corp., a new statutory imposition of pension funding obligations adjusting contract rights was found to be the latter and not sufficient to constitute a “taking” of contract rights. 475 U.S. 211, 224 (1986). In Ruckelshaus v. Monsanto Co., when federal regulations imposed a requirement to make trade secrets public as part of pesticide licensing process a claim for a taking could only be made for trade secrets where the applicant had a “distinct investment-backed expectation.” 476 U.S. 986, 1003–1004 (1984).
As we have previously opined, certain impairments of the obligations of the environmental trust financing contracts by Legislative Action may give rise to a claim under the Contracts Clause even though those impairments may affect only certain security arrangements under the affected agreements or the State Pledge. Not every impairment of the obligations of a contract will constitute a taking of property under the Takings Clause, and some regulation that does not constitute a taking within the Takings Clause may nonetheless substantially impair the obligations of a contract.
20 The government’s categorical duty under the Fifth Amendment to pay just compensation when it physically takes possession of an interest in property for public use applies to personal as well as real property. Horne v. Department of Agriculture, 576 U.S. 351, 357 (2015) (physical taking of bulk fruit).
21 The Supreme Court recognizes “[property] interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)) (internal punctuation omitted).
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If state action (either legislative change or administrative agency action under color of state law), substantially revokes or alters the Bondholders’ rights under the relevant evidences of indebtedness and related agreements or the rights established by the Environmental Trust Financing Statute and protected under the State Pledge so as to either completely deprive Bondholders of all economically beneficial use of the Securitization Property or unduly interfere with the reasonable expectations of the Bondholders arising from their investment in the Bonds, the Bondholders would suffer a taking within the meaning of the Takings Clause under United States Supreme Court precedent. Lingle 544 U.S. at 538–39 (2005) (reaffirming these legal standards as articulated by Penn Central and Lucas).
Monetary recovery providing just compensation for the taking may be made available by the state through a variety of means in place at the time of the taking including means enacted as part of the challenged Legislative Action. See, e.g. Wisconsin Cent., 93 F. 3d at 1367 (denying injunctive relief because just compensation was available under mechanism established by statute authorizing the imposition of co-location obligations and PSCW rule implementing the statute). There can be no assurance, however, that any such award of just compensation would be sufficient to pay the full amount of principal of and interest on the Bonds.
Based upon our review of the pertinent statutory and constitutional provisions and relevant reported decisions, and subject to the qualifications, limitations and assumptions set forth in this letter, it is our opinion that a court of competent jurisdiction, in a properly prepared and presented case would hold that the Takings Clause would prohibit the State from acting in contravention of the State Pledge, after the Bonds are issued but before the Bonds are fully paid, without paying just compensation to Bondholders if the court determines such action in contravention of the State Pledge, (a) constituted a permanent appropriation of the property interest of bondholders in the Bonds or the Environmental Control Property or a denial of all economically beneficial or productive use of the Environmental Control Property; (b) destroyed the Environmental Control Property; or (c) substantially limited, altered, impaired or reduced the value of the Environmental Control Property in a manner that inflicts a severe economic impact on such bondholders and unduly interferes with their reasonable expectations, unless adequate provision shall be made by law for the protection of the bondholders.
* * *
While a copy of this opinion letter may be posted to an internet website required under Rule 17g-5 under the Securities and Exchange Act of 1934, as amended, and maintained by Wisconsin Electric solely for the purpose of complying with such rule, this opinion letter is solely for the benefit of the recipients identified in Schedule A to this opinion letter in connection with the transactions described supra and may not be quoted, used or relied upon by, nor may copies be delivered to, any other person (including without limitation, any governmental or regulatory agency and all purchasers of Bonds other than the underwriters named in the Underwriting Agreement), nor may such recipients rely on this letter for any other purpose, without our prior written consent.
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We hereby consent to the filing of this opinion letter as an exhibit to the report on Form 8-K filed on the date hereof relating to the Registration Statement filed with the Securities and Exchange Commission, and to all references to our firm included in or made a part thereof. In giving the foregoing consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the related rules and regulations. We assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to our attention with respect to the opinions or statements expressed above, including any changes in applicable law which may hereafter occur.
| Very truly yours, | ||
| /s/ Troutman Pepper Hamilton Sanders LLP |
Exhibit 99.2
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May 12, 2021
| To: | The persons listed on Exhibit A attached hereto |
| Re: | Opinion Concerning State Constitutional Issues Pertaining to WEPCo Environmental Trust Finance I, LLC Environmental Trust Bonds, Series 2021 |
Ladies and Gentlemen:
We have acted as special counsel to Wisconsin Electric Power Company (“Wisconsin Electric”), a Wisconsin corporation, and WEPCo Environmental Trust Finance I LLC, a Delaware limited liability company (the “Issuer”), in connection with the issuance and sale by the Issuer of Environmental Trust Bonds, Series 2021 (the “ETBs”) issued pursuant to the Registration Statement on Form SF-1 (File Nos. 333-252252 and 333-252252-01). The ETBs are being issued pursuant to an indenture, dated as of the date hereof (the “Base Indenture”), between the Issuer and U.S. Bank, National Association, as indenture trustee (the “Indenture Trustee”), and a series supplement thereto, dated as of the date hereof (together with the Base Indenture, the “Indenture”) between the Issuer and the Indenture Trustee. Under the Indenture, the Indenture Trustee holds, among other things, certain property as described below as collateral security for the payment of the ETBs.
The ETBs represent the securitization of “Environmental Control Costs” in the form of “Environmental Control Property” pursuant to Section 196.027 of the Wisconsin Statutes (the “Financing Act”). The Environmental Control Property was created in favor of Wisconsin Electric pursuant to the financing order issued by the Public Service Commission of Wisconsin (“PSCW”) on November 17, 2020 in Docket No. 6630-ET-101 (the “Financing Order”). The Financing Order authorized Wisconsin Electric to recover $100 million of the undepreciated cost of environmental control activities at the Pleasant Prairie Power Plant, capitalized carrying costs thereon, and financing costs through the issuance of ETBs. The Environmental Control Property includes Wisconsin Electric’s right to recover the Environmental Control Costs through an irrevocable, nonbypassable customer charge known as the “Environmental Control Charge.” The Environmental Control Charge may be periodically adjusted, in the manner authorized by the Financing Order, in order to ensure the expected recovery of amounts sufficient to (i) amortize the ETBs pursuant to the amortization schedule to be followed in accordance with the provisions of the ETBs and the Indenture, (ii) pay interest thereon and related fees and expenses, and (iii) maintain the required reserves for the payment of the ETBs. Pursuant to the Financing Order, (i) Wisconsin Electric will sell the Environmental Control Property to the Issuer in exchange for the net proceeds from the sale of the ETBs, (ii) the Issuer will sell the ETBs, which will be secured primarily by the Environmental Control Property, and (iii) Wisconsin Electric will act as the Initial Servicer of the Environmental Control Property.
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Among the credit enhancements for the ETBs enacted by the Financing Act, the State of Wisconsin (the “State”) has pledged, for the benefit and protection of bondholders, that it will not take or permit any action that would impair the value of Environmental Control Property, or, except for the true-up expressly allowed by the Financing Act, reduce, alter, or impair the Environmental Control Charge to be imposed and collected from Wisconsin Electric’s customers and remitted to bondholders, until the principal, interest and premium, and any other charges incurred and contracts to be performed in connection with the related ETBs have been paid and performed in full. This state pledge (the “State Pledge”) was enacted as Wis. Stat. § 196.027(8).
Ordering Paragraph 6 of the Financing Order provides that the Issuer, when issuing the ETBs, is authorized, pursuant to Wis. Stat. § 196.027(8)(c), to include the State Pledge with respect to the Environmental Control Property and Environmental Control Charge in any documentation relating to the ETBs.
Wisconsin Electric and the Issuer have requested us to furnish our opinion to you as to whether, in a properly prepared and presented case before a court of competent jurisdiction applying Wisconsin law:
| a. | the court would conclude that the State Pledge constitutes a contractual relationship between the bondholders and the State for purposes of Article I, section 12 of the Wisconsin Constitution (the “Wisconsin Contract Clause”); |
| b. | absent a demonstration by the State that a substantial impairment of that contract is reasonable and necessary to further a significant and legitimate public purpose, the bondholders (or the Indenture Trustee acting on their behalf) could successfully challenge under the Wisconsin Contract Clause the constitutionality of a State law subsequently enacted or an action taken by the PSCW exercising legislative powers (collectively, a “Legislative Action”), that limits, alters, impairs or reduces the value of the Environmental Control Property or the Environmental Control Charge so as to cause a substantial impairment of ETB obligations before the ETBs are fully paid and discharged; |
| c. | sound and substantial arguments support granting injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Property or Environmental Control Charge in violation of the Wisconsin Contract Clause; and |
| d. | the court would conclude that Article 1, section 13 of the Wisconsin Constitution (the “Wisconsin Takings Clause”) would prohibit the State from acting in contravention of the State Pledge, after the ETBs are issued but before they are fully paid, without paying just compensation to the bondholders if doing so (i) constituted a permanent appropriation of the property interest of the bondholders in the ETBs or the Environmental Control Property or a denial of all or substantially all practical uses of the Environmental Control Property; (ii) destroyed the Environmental Control Property, absent payment of just compensation; or (iii) substantially limited, altered, impaired or reduced the value of the Environmental Control Property in a manner that inflicts a severe economic impact on the bondholders and unduly interferes with their reasonable expectations, unless adequate provision shall be made by law for the protection of the bondholders. |
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The following provisions of the Financing Act are particularly relevant for the opinions we have been asked to provide:
State Pledge. (a) In this subsection, “bondholder” means a person who holds an environmental trust bond.
(b) The state pledges to and agrees with bondholders that the state will not do any of the following:
1. Take or permit any action that impairs the value of environmental control property.
2. Except as allowed under this section, reduce, alter, or impair environmental control charges that are imposed, collected, and remitted for the benefit of bondholders until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with environmental trust bonds held by the bondholders are paid or performed in full.
(c) Any person who issues environmental trust bonds is allowed to include the pledge specified in par. (b) in the bonds and relating documentation.
Wis. Stat. § 196.027(8).
A financing order is irrevocable and, except as provided in subds. 2. c. and 4., the commission may not reduce, impair, or otherwise adjust environmental control charges approved in the order.
Wis. Stat. § 196.027(2)(b)5.
A financing order shall remain in effect until the environmental trust bonds issued pursuant to the order have been paid in full and the financing costs of the bonds have been recovered in full.
Wis. Stat. § 196.027(2)(e)1.
1. Environmental control property that is specified in a financing order shall constitute a present property right notwithstanding that the imposition and collection of environmental control charges depend on the energy utility to which the order is issued performing its servicing functions relating to the collection of environmental control charges and on future energy consumption. Such property is considered to exist whether or not the revenues or proceeds arising from the property have accrued and whether or not the value of the property is dependent on the receipt of service by customers of an energy utility.
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2. Environmental control property specified in a financing order shall continue to exist until the environmental trust bonds issued pursuant to the order are paid in full and all financing costs of the bonds have been recovered in full.
Wis. Stat. § 196.027(5)(a).
Based upon our review of the pertinent statutory and constitutional provisions and relevant reported judicial decisions, and subject to the qualifications, limitations and assumptions set forth in this letter, it is our opinion that in a properly prepared and presented case before a court of competent jurisdiction applying Wisconsin law:
| a. | the court would conclude that the State Pledge constitutes a contractual relationship between the bondholders and the State for purposes of the Wisconsin Contract Clause; |
| b. | absent a demonstration by the State that a substantial impairment of that contract is reasonable and necessary to further a significant and legitimate public purpose, the bondholders (or the Indenture Trustee acting on their behalf) could successfully challenge under the Wisconsin Contract Clause the constitutionality of a Legislative Action that limits, alters, impairs or reduces the value of the Environmental Control Property or the Environmental Control Charge so as to cause a substantial impairment of ETB obligations before the ETBs are fully paid and discharged; |
| c. | sound and substantial arguments would support granting preliminary and permanent injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Property or Environmental Control Charge in violation of the Wisconsin Contract Clause; however, the decision to grant such relief would be in the discretion of the court; and |
| d. | the court would conclude that the Wisconsin Takings Clause prohibits the State from acting in contravention of the State Pledge, after the ETBs are issued but before they are fully paid, without paying just compensation to the bondholders if doing so (i) constituted a permanent appropriation of the property interest of the bondholders in the ETBs or the Environmental Control Property or a denial of all or substantially all practical uses of the Environmental Control Property; (ii) destroyed the Environmental Control Property, absent payment of just compensation; or (iii) substantially limited, altered, impaired or reduced the value of the Environmental Control Property in a manner that inflicts a severe economic impact on the bondholders and unduly interferes with their reasonable expectations, unless adequate provision were made by law for the protection of the bondholders. |
I. THE WISCONSIN CONTRACT CLAUSE
The Wisconsin Contract Clause provides that “[n]o bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. . . .” WI Const. art. I, § 12. This Clause prohibits the State from enacting laws that retroactively and unconstitutionally impair the obligation of contracts. State ex rel. Cannon v. Moran, 111 Wis. 2d 544, 554, 331 N.W.2d 369 (1983); Society Ins. v. Labor & Industry Review Com’n, 2010 WI 68, ¶ 56, 326 Wis. 2d 444, 478, 786 N.W.2d 385, 402. However, the Clause is not an absolute prohibition on contractual impairments. Cannon, 111 Wis. 2d at 559 (“the contract clause does not proscribe every impairment of contract.”). A party challenging a Legislative Action under the Wisconsin Contract Clause bears the burden to establish an unconstitutional impairment beyond a reasonable doubt. Society, 2010 WI 68, ¶ 65.
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In evaluating whether a Legislative Action violates the Wisconsin Contract Clause, the Supreme Court of Wisconsin typically follows the same three-step methodology the United States Supreme Court employs to examine challenges under the federal Contract Clause. Wisconsin Prof’l Police Ass’n, Inc. v. Lightbourn, 2001 WI 59, ¶ 146, 243 Wis. 2d 512, 593–94, 627 N.W.2d 807, 848; Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S. Ct. 697, 74 L.Ed.2d 569 (1983); see also Cannon, 111 Wis. 2d at 554–61 (employing the three-step test) (citing Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231, 78 L.Ed. 413 (1934), Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S. Ct. 2716, 57 L.Ed.2d 727 (1978), and Energy Reserves Group, 459 U.S. 400).1
First, a court should determine whether a Legislative Action “has ‘operated as a substantial impairment of a contractual relationship.’” Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 134 , 358 Wis. 2d 1, 851 N.W.2d 337 (citing Spannaus, 438 U.S. 234, 244). This step involves analyzing whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial. Madison, 2014 WI 99, ¶ 134 (citing Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 261, 295 Wis. 2d 1, 719 N.W.2d 408 (Prosser, J., concurring in part/dissenting in part).
Second, a court should assess the purpose of the Legislative Action. If the action substantially impairs a contract, it must have a significant and legitimate public purpose. Chappy v. Labor and Industry Review Com’n, Dept. of Industry, Labor and Human Relations, 136 Wis. 2d 172, 187, 401 N.W.2d 568, 575 (Wis. 1987). If the action only minimally impairs a contract, a court may end its inquiry and uphold the action as constitutional. If the impairment is somewhere between minimal and substantial, a court should continue its analysis, but the action will be subjected to less scrutiny. Id. at 188.
Lastly, if a Legislative Action serves the required public purpose, a court should examine whether the conditions of the action are reasonable and necessary to the action’s purpose. Madison, 2014 WI 99, ¶ 136. Courts “should defer to the legislature’s judgment as to the necessity and reasonableness of a particular measure.” Chappy, 136 Wis. 2d at 188. However, if the State is a party to the contract at issue, “courts do not give the legislature the same deference they would give it if it were acting on a subject at arm’s length.” Lightbourn, 2001 WI 59, ¶ 149.
In analyzing the action’s purpose and the reasonableness and necessity of the action’s conditions, courts balance the State’s police power with the rights protected by the Wisconsin Contract Clause. The balancing test depends on the particular facts at issue.
| 1 | Although the Supreme Court of Wisconsin is not obligated to interpret the Wisconsin Contract Clause coextensively with the federal contract clause, it often turns to the United States Supreme Court’s decisions for guidance. Chappy v. Labor and Industry Review Com’n, Dept. of Industry, Labor and Human Relations, 136 Wis. 2d 172, 186, 401 N.W.2d 568, 574 (Wis. 1987); Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 133 n.45, 358 Wis. 2d 1, 851 N.W.2d 337. |
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A. Existence of a Contractual Relationship
A public contract may arise from a law that creates a contract. Wisconsin courts (like the United States Supreme Court) employ a “‘very strong’ presumption that ‘legislative enactments do not create contractual rights.’” Madison, 2014 WI 99, ¶ 138 (citing Dunn v. Milwaukee Cnty., 2005 WI App 27, ¶ 8, 279 Wis. 2d 370, 693 N.W.2d 82). See also Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 466, 105 S. Ct. 1441, 84 L.Ed.2d 432 (1985). Legislative enactments are presumed to declare policies, not contracts. Madison, 2014 WI 99, ¶ 138 (citing Atchison, 470 U.S. at 466).
For a party to successfully challenge a Legislative Action as an impairment of a contract between the party and the State, the party must overcome this presumption. In analyzing these challenges, courts are guided by the “unmistakability doctrine,” which means that a court must find that a statute created “a clear intent” to establish private contract rights enforceable against the State. Madison, 2014 WI 99, ¶¶ 139–40, 142. See also Lightbourn, 243 Wis. 2d 512, ¶ 145 n.188; U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 n.14, 97 S. Ct. 1505, 52 L.Ed.2d 92 (1977). “The unmistakability doctrine is a canon of construction rooted in the belief that ‘legislatures should not bind future legislatures from employing their sovereign powers in the absence of the clearest of intent to create vested rights protected under the Contract Clause.’” Madison, 2014 WI 99, ¶ 139 (citing Parker v. Wakelin, 123 F.3d 1, 5 (1st Cir. 1997)).2
To discern the legislature’s intent, Wisconsin courts turn to the language of the statute. In Madison, the plaintiffs challenged a statute that prohibited the City of Milwaukee from making contributions to the plaintiffs’ retirement funds, arguing that it violated contractual rights created under Chapter 36 of the Milwaukee Charter Ordinance. Madison, 2014 WI 99, ¶¶ 131–32. Plaintiffs argued that Chapter 36 contractually guaranteed that the City of Milwaukee would fund their contributions. Id. at ¶ 132. Examining the language of Chapter 36, the court determined that it unmistakably evinced a “clear intention of the Common Council to create a ‘vested and contractual right to the [pension] benefits. . . .’” Id. at ¶ 145. Particularly relevant were two provisions of the statute: one stated that participants “shall have a vested and contractual right to the benefits” and the other stated that every member “shall thereby have a benefit contract. . . .” Id. at ¶ 144. However, the court was not convinced that the “contributions” at issue fell within the “benefits” for which the members had a contractual right. Id. at ¶ 146. A different provision of Chapter 36 drew an unquestionable distinction between contributions and benefits. Id. at ¶¶ 150–51. Plaintiffs therefore failed to show that the Chapter 36 contributions created a public contract. Id. at ¶ 158.
In a much earlier case, the court declined to find that a statute created a private contract where the statute did not contain any reference to a contract, but merely provided that certain teachers could not be dismissed without cause. Morrison v. Bd. of Ed. of City of W. Allis, 237 Wis. 483, 297 N.W. 383, 385 (Wis. 1941). Nothing in the statute illuminated an intent to create a contract in light of the strong presumption that the act simply declared a public policy. Id. at 385.
| 2 | We have not identified any published Wisconsin decisions separately addressing the “reserved powers” doctrine, under which state contracts purporting to waive inherent aspects of the State’s sovereignty are void. See U.S. Trust Co., 431 U.S. at 23. One published dissent described this as “a variant of the unmistakability doctrine.” Dairyland Greyhound Park, 2006 WI 107, ¶ 315 (Roggensack, J., concurring in part and dissenting in part). Our analysis assumes that a Wisconsin court would look to federal precedent on this issue. See fn. 1, supra. For Troutman Pepper’s separate treatment of federal law, see its accompanying federal constitutional law opinion letter. |
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Conversely, in U.S. Trust Co., the U.S. Supreme Court found a clear intent to create a contract in a covenant between New Jersey, New York and certain bondholders that restricted the ability of the Port Authority of New York and New Jersey to subsidize rail transportation. U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 18. The statute stated:
The 2 States covenant and agree with each other and with the holders of any affected bonds . . . that so long as any of such bonds remain outstanding and unpaid and the holders thereof shall not have given their consent as provided in their contract with the port authority . .. . neither the States nor the port authority . . . will apply any of the rentals, tolls, fares, fees, charges, revenues or reserves, which have been or shall be pledged in whole or in part as security for such bonds, for any railroad purposes whatsoever other than permitted purposes hereinafter set forth.
Id. at 9–10 (emphasis added). Based on this provision and upon finding that the purpose of the covenant was to invoke the protection of the federal contract clause, the Court had “no doubt” that the covenant represented a contractual obligation of the two States. Id. at 18.
Unlike the statute in Morrison, the Financing Act contains language from which a court could find a clear intent by the legislature to create a contract with the State. The State Pledge expressly provides that:
The state pledges to and agrees with bondholders that the state will not do any of the following:
1. Take or permit any action that impairs the value of environmental control property.
2. Except as allowed under this section, reduce, alter, or impair environmental control charges that are imposed, collected, and remitted for the benefit of bondholders until any principal, interest, premium, or other charge incurred, or contract to be performed, in connection with environmental trust bonds held by the bondholders are paid or performed in full.
Wis. Stat. § 196.027(8)(b) (emphasis added). Although the legislature did not label the State Pledge a contract, the pledge contains contractual language that is similar to the statute in U.S. Trust Co. Compare id. (“pledges to and agrees”), with U.S. Trust Co., 431 U.S. 1, 9–10 (“covenant and agree”). Under a plain reading of these two statutes, there appears to be no material distinction between a pledge and a covenant. The State Pledge expressly provides that the State “pledges to and agrees with bondholders” to refrain from taking certain actions that would impair environmental control property or environmental control charges. Id. It also recognizes that investors will rely on its terms: “Any person who issues environmental trust bonds is allowed to include the pledge . . . in the bonds and relating documentation.” Wis. Stat. § 196.027(8)(c). These provisions suggest that the legislature intended the State Pledge to be a contractual commitment. See Madison, 2014 WI 99, ¶ 145.
Here, the Issuer has taken the State up on its offer and included the State Pledge in the ETBs and related documentation. Accordingly, the State has held itself out directly to bondholders as pledging and agreeing not to take any action that impairs the value of the Environmental Control Property, and should reasonably anticipate that bondholders would rely on that promise by the State.
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Other provisions of the Financing Act strengthen this conclusion. Section (2) permits the PSCW to issue a financing order that provides for the issuance of ETBs. It also states that such a financing order is “irrevocable” and it prohibits the PSCW from taking certain actions that would impair environmental control charges approved by a financing order: “A financing order is irrevocable and, except as provided in subds. 2. c. and 4., the commission may not reduce, impair, or otherwise adjust environmental control charges approved in the order.” Wis. Stat. § 196.027(2)(b)5. Section (2) further states: “A financing order shall remain in effect until the environmental trust bonds issued pursuant to the order have been paid in full and the financing costs of the bonds have been recovered in full.” Wis. Stat. § 196.027(2)(e)1.
Thus, the legislature has unmistakably limited the PSCW’s power and restrained the State’s ability to impair a financing order. By deeming a financing order to be “irrevocable” and “in effect until the environmental trust bonds issued . . . have been paid in full,” it seems clear that the legislature intends financing orders to be honored.
Although the language of subsection (2)(b)5. is not absolute, the legislature has only provided two ways that the PSCW may modify a financing order: (1) annually adjusting the charges through a formula-based mechanism and (2) issuing a subsequent order if such an order would lower the overall costs to customers and otherwise be in the public interest, but only if the original order included a provision allowing for the retirement of environmental trust bonds before their termination dates. See Wis. Stat. § 196.027(2)(b)2.c. (authorizing annual adjustments) and (2)(c) (authorizing subsequent orders); see also Wis. Stat. § 196.027(2)(b)2.e. (requiring any future orders to be authorized by initial financing order). These sections do not undermine the contractual nature of the State Pledge; instead, they provide the sole terms upon which a financing order subject to the State Pledge may be amended.
Together, all of these provisions strongly suggest an intent by the State to be contractually bound by the State Pledge, as incorporated into the ETBs, and to refrain from taking any action that would impair the Environmental Control Property or the Environmental Control Charge.
B. Existence of a Substantial Impairment
If a court determines that a contractual relationship exists, it will then assess whether a Legislative Action impairs that relationship, and if so, whether the impairment is substantial. To analyze the extent to which a particular Legislative Action impairs a contract, a court will examine the reasonableness of the parties’ reliance upon the contract. Chappy, 136 Wis. 2d at 187. See also Lightbourn, 2001 WI 59, at ¶ 155 (“legislation that alters the ‘contractual expectations of the parties impairs the obligation of contract.”). Examining the parties’ expectations and reliance on their contract may require a court to consider whether the industry affected has been regulated in the past, whether the legislation nullifies a basic term of the contract, and the extent of the potential liability imposed by the legislation. Chappy, 136 Wis. 2d at 187.
In Cannon, several Milwaukee County circuit judges terminated their memberships in the Milwaukee County Employees’ Retirement System and thereafter became eligible to receive pensions from the system. Cannon, 111 Wis. 2d 544, 550. The legislature subsequently enacted a law that aimed, in part, to reduce the costs imposed on the Wisconsin public employee retirement systems. Id. at 550–51, 560. It accomplished this purpose by reducing the judges’ salaries by the amount of their pensions. Id. at 550–51. The court found that the statute was a severe impairment because it caused the judges to suffer “a completely unexpected and substantial loss.” Id. at 558–59. After the judges became eligible to receive pensions, the court opined that the legislature “pulled the rug out” from under them by reducing their salaries and placing them in the same position as judges who were not entitled to retirement benefits. Id. at 557.
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The court also found a substantial impairment in Society, where Society had contracted to provide worker’s compensation insurance to a company’s injured employees. Society, 2010 WI 68, ¶¶ 2, 66. When Society began paying the claimant’s benefits, its liability was subject to a twelve-year statute of limitations under multiple provisions of the worker’s compensation statute. Id. at ¶ 3. When the legislature subsequently amended those provisions to eliminate the statute of limitations and then applied that modification retroactively, it modified a “basic term” of the parties’ contract for which Society had bargained and on which it had reasonably relied. Id. at ¶ 67. This imposed a “completely unexpected liability” on Society with “potentially significant losses.” Id.
Not only may retroactive impairment of a basic contract term be considered substantial, but so may impairment of the consideration on which a contract is based. See, e.g., State ex rel. Bldg. Owners & Managers Ass’n of Milwaukee, Inc. v. Adamany, 64 Wis. 2d 280, 219 N.W.2d 274 (Wis. 1974) (finding substantial impairment by a law that “would not merely affect the remedy to which a party might resort for satisfaction of the contract, but would impair the very consideration that was agreed upon”); Cannon, 111 Wis. 2d at 555 (“This court has recognized that a contract is impaired when the consideration agreed upon is altered by legislation.”) (citations omitted).
Despite these examples, not all contractual impairments are substantial. When retroactive application of a legislative enactment does not disrupt contracting parties’ reasonable expectations, the law does not substantially impair the parties’ contract. Compare Lightbourn, 2001 WI 59, ¶¶ 150, 158 (change in law that required a distribution from an account within the Wisconsin retirement system did not impair the contract between the State and participants because participants had no basis to claim that relevant expectations changed), with Dairyland, 2006 WI 107, ¶¶ 76–77 (even though gaming is a highly-regulated industry and parties therefore should expect future regulations, the parties could not have reasonably expected that a constitutional amendment would invalidate the casinos’ future operations). As noted above, nothing in this letter expresses any opinion as to how a court would rule on whether any particular Legislative Action would impair the State Pledge. That question is fact-specific and would necessarily depend on the precise content of the action. Therefore, we have assumed for the purpose of this opinion that the Legislative Action would constitute an impairment.3
| 3 | The State Pledge addresses both the future enactment of state laws either repealing or amending the Financing Act and actions of state officials, in particular the PSCW, who impair the value of the Environmental Control Property. A complaint seeking relief under the Wisconsin Contract Clause based upon a PSCW action would need to allege that the PSCW acted in a legislative capacity. The Wisconsin Supreme Court has held that the PSCW exercises legislative power when setting rates and making public interest determinations under the statutes it implements. Friends of the Earth v. PSC, 78 Wis. 2d 388, 412, 254 N.W.2d 299 (1977); Clean Wisconsin, Inc. v. PSC, 282 Wis. 2d 250, 351–52, 700 N.W.2d 768 (2005). There is no state judicial precedent addressing whether a PSCW action affecting the Financing Order, the Environmental Control Property or the Environmental Control Charge is legislative in character or would constitute a law for the purpose of the Wisconsin Contract Clause. |
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C. Balancing Impairment with Public Purpose
If a Legislative Action substantially impairs a contractual relationship, a court will examine whether there is a significant and legitimate public purpose for the action. Chappy, 136 Wis. 2d 172, 187 (citing Energy Reserves Group, 459 U.S. at 411); Lightbourn, 2001 WI 59, ¶ 148. A significant and legitimate public purpose does not need to be a response to an emergency, but it “should be directed towards remedying a broad and general social or economic problem.” Chappy, 136 Wis. 2d at 188. The degree of impairment found “determines the level of scrutiny to which the legislation in question will be subjected.” Cannon, 111 Wis. 2d 544, 558. Severe impairment “will push the inquiry to a careful examination of the nature and purpose of the state legislation.” Id. at 558 (quoting Spannaus, 438 U.S. at 244–45, 98 S. Ct. at 2722–23). “If the impairment is less than substantial, a diminished degree of scrutiny is required.” Chappy, 136 Wis. 2d at 188. However, if an impairment is only minimal, a court may end its analysis and uphold the Legislative Action as constitutional. Lightbourn, 2001 WI 59, ¶ 147.
Presuming the impairment is more than minimal, a court will ask whether the law “is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the adoption of the legislation.” Chappy, 136 Wis. 2d at 190. A court should defer to the legislature’s judgment of the necessity and reasonableness of a given action unless the State is a party to the contract. Id. at 190. When the State is accused of impairing its own contract, “courts do not give the legislature the same deference they would give it if it were acting on a subject at arm’s length.” Lightbourn, 2001 WI 59, ¶ 149. A Legislative Action may be unreasonable for the same reason that it impairs a contract. Cannon, 111 Wis. 2d 544, 561.
These last two steps of the analysis (examining the purpose of the action and the reasonableness and necessity of the conditions imposed) are balanced with the degree of impairment, which in effect balances the State’s police powers with parties’ freedom to enter contracts. Dairyland, 2006 WI 107, ¶ 53. This entire test is fact-specific and unpredictable at this stage.
For example, in Adamany, the legislature passed a law requiring landowners to reduce the rent they charged tenants where property taxes levied in one year exceeded the next year’s taxes. Adamany, 64 Wis. 2d 280, 283. The landlords challenged the law as an impairment of their leases. While the court found that the law served “at least, some public purpose”—“to pass along to renters tax ‘concessions’ that owners have received”—that purpose was not vital. Id. at 288, 300. Nor was it clear what broader interest the legislature was seeking to protect. Id. at 294, 300.
The Adamany court turned, in part, to federal case law for guidance. The court distinguished Blaisdell, in which the U.S. Supreme Court upheld an emergency moratorium on mortgage foreclosures during the Great Depression. Id. at 294–96 (citing Blaisdell, 290 U.S. 398). It also distinguished La Follette, where it was “possible to conclude” that a particular law was enacted to protect the safety of the public and railroad employees. Adamany, 64 Wis. 2d at 293–94 (citing Chicago & Northwestern R.R. Co. v. La Follette, 43 Wis. 2d 631, 169 N.W.2d 441 (1969)). The court recognized that a vital public interest need not be an emergency, but the legislature’s purpose for the rent concession statute was unclear. Adamany, 64 Wis. 2d at 302. Accordingly, the court did not need to reach the reasonableness and necessity question to conclude that the impairment violated the Wisconsin Contract Clause. Id. at 302.
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In Spannaus, the Supreme Court also distinguished Blaisdell and found that a Minnesota statute that retroactively subjected certain private employers to a “pension funding charge” lacked a generalized purpose. Spannaus, 438 U.S. 234, 249–50. The Court analyzed the statute under heightened scrutiny because it severely impaired a particular company’s pension contract. Id. at 245–46. Unlike the “desperate emergency economic conditions” in Blaisdell, the Minnesota law “was not even purportedly enacted to deal with a broad, generalized economic or social problem.” Id. at 249–50 (citing Blaisdell, 290 U.S. 398, 445). Instead, the law had “an extremely narrow focus” applying only to certain private employers. Id. at 248.
Like Adamany, in Society, the court also stopped its analysis at the second step of the three-part test, concluding that there was not even a rational purpose—let alone a significant and legitimate public purpose—for the law impairing the statute of limitations clause in Society’s contract. Society, 2010 WI 68, ¶¶ 68. Important to the court’s decision was its finding that the amendments undermined the broader purpose of the worker’s compensation act. Id. at ¶ 52. The amendments exposed Society to potentially significant and unpredictable liability whereas the act sought to fund worker’s compensation through predictable and manageable means. Id. at ¶ 52.
In Cannon, the court examined the reasonableness question, but only briefly. There, the stated purposes of the statute that reduced the judges’ salaries were to reduce costs imposed on Wisconsin’s public employee retirement systems, restore equity in compensating public employees, remove the incentive for inappropriate transfers between public employers, and restore public confidence in civil servants. Cannon, 111 Wis. 2d 544, 560. The court determined that the law served a legitimate public purpose because “at least some of these objectives constitute broad societal interests.” However, the conditions imposed by the statute were “unreasonable for the same reasons they severely impair[ed] the obligations of the MCERS contracts.” Id. at 561. The salary reduction was unexpected, substantial, and inequitable. Id. at 561–62. Weighing the impairment and unreasonable conditions with the statute’s purposes, the court concluded that the statute unconstitutionally impaired the contract.
The court’s discussion of reasonableness was similarly brief in Chappy. There, the court found that a worker’s compensation statute that “was enacted to ameliorate the effects of inflation” on employees had a significant and legitimate public purpose. Chappy, 136 Wis. 2d at 189–90. According to the court, inflation affects everyone, but especially people on fixed incomes, such as employees receiving worker’s compensation. Id. at 190. Turning to whether the conditions imposed by the statute were reasonable, the court deferred to the legislature because the State was not a party to the contract. Id. at 190. The court found “nothing unreasonable or inappropriate” about an employee receiving higher worker’s compensation benefits than she would have received in wages. Id. at 190–91.
D. The Balancing Test is Fact-Intensive
In analyzing the cases above, and balancing contract rights with the State’s police powers, it is apparent that the outcome of a challenge to Legislative Action under the Wisconsin Contract Clause depends on the particular facts at issue. There is no way to predict or describe the precise form that a future Legislative Action could take, the circumstances under which it might be enacted, or the public purpose behind its enactment. The form, nature, and facts surrounding litigation that might arise to challenge a Legislative Action are also unpredictable. Thus, whether a court would determine that a future Legislative Action would be an unconstitutional impairment of the State Pledge, and whether such a Legislative Action would be viewed as a reasonable and necessary means to address a legitimate public purpose, cannot reasonably be predicted at this time.
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However, some general guidelines can be discerned from the cases above. The Wisconsin Contract Clause is not an absolute prohibition on contractual impairments. Cannon, 111 Wis. 2d 544, 559. A Legislative Action that only minimally interferes with a contract will likely be upheld. Lightbourn, 2001 WI 59, ¶ 148. The more severe an impairment is, the higher the degree of scrutiny to which a Legislative Action will be subjected, and the more likely it is that a court will find the impairment to be unreasonable. Chappy, 136 Wis. 2d 172, 190. Conversely, an emergency may justify lesser scrutiny. Adamany, 64 Wis. 2d at 294–96. Where a State contract is involved (as opposed to a private contract), courts should not grant the legislature the same deference they would if the State were acting at arm’s length. Lightbourn, 2001 WI 59, ¶ 149.
If a court finds that (1) the State Pledge creates a contract to which the State is a party within the meaning of the Wisconsin Contract Clause, which we expect to be the case here, and (2) a Legislative Action substantially impairs the contract, the action would be subject to a high degree of scrutiny. A court would also grant less deference to the legislature’s judgment regarding the necessity and reasonableness of the action than it would if it were reviewing a constitutional challenge to a law impairing a private contract. This combination of a public contract and a substantial impairment would make it more likely for a court to conclude that a given impairment violates the Wisconsin Contract Clause. However, if the court only finds a minimal impairment, or concludes that a Legislative Action is necessary and reasonably tailored to a legitimate public purpose, the court will likely uphold the Legislative Action. While there is no way to predict the form of a potential Legislative Action, if the action addresses a broad and general economic or social purpose, it may withstand constitutional scrutiny. A court may also reason that because the utility industry generally and ETBs in particular are heavily regulated, those relying on the State Pledge should anticipate future regulations, which would tip in favor of upholding a Legislative Action. Regardless, a court’s analysis will depend on the Legislative Action at issue and the specific facts before it.
E. Opinion on Wisconsin Contract Clause
Based on our review of relevant judicial authority, as discussed in this opinion, but subject to the qualifications, limitations and assumptions set forth herein, it is our opinion that in a properly prepared and presented case before a court of competent jurisdiction applying Wisconsin law:
| a. | the court would conclude that the State Pledge constitutes a contractual relationship between the bondholders and the State for purposes of the Wisconsin Contract Clause; and |
| b. | absent a demonstration by the State that a substantial impairment of that contract is reasonable and necessary to further a significant and legitimate public purpose, the bondholders (or the Indenture Trustee acting on their behalf) could successfully challenge under the Wisconsin Contract Clause the constitutionality of Legislative Action that limits, alters, impairs or reduces the value of the Environmental Control Property or the Environmental Control Charge, so as to cause a substantial impairment of ETB obligations prior to the time that the ETBs are fully paid and discharged. |
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II. AVAILABILITY OF INJUNCTIVE RELIEF
A preliminary4 or permanent injunction may provide the most effective remedy for preventing a Legislative Action from impairing the rights of the bondholders, but whether to grant injunctive relief is a matter of a court’s discretion.
Section 813.02 of the Wisconsin Statutes empowers courts to grant preliminary injunctions when “it appears from a party’s pleading that the party is entitled to judgment” and the injunction would “restrain[] some act, the commission or continuance of which during the litigation would injure the party . . . tending to render the judgment ineffectual.” Wis. Stat. § 813.02. Nevertheless, “[i]njunctions, whether temporary or permanent, are not to be issued lightly. The cause must be substantial.” Sch. Dist. of Slinger v. Wisconsin Interscholastic Athletic Ass’n, 210 Wis. 2d 365, 370–71, 563 N.W.2d 585 (Wis. Ct. App. 1997).
In particular, a preliminary injunction “is not to be issued unless the movant has shown a reasonable probability of ultimate success on the merits,” and that an injunction is “necessary to preserve the status quo.” Id. at 370–71. To obtain a permanent injunction, rather than demonstrating a reasonable probability of success, a party must prove its case at a trial on the merits and, if successful, obtain a final judgment in its favor. A party seeking either a preliminary or permanent injunction must show that it lacks an adequate remedy at law and would suffer an irreparable harm without an injunction. Id. at 371. However, “at the temporary injunction stage the requirement of irreparable injury is met by showing that, without it to preserve the status quo pendente lite, the permanent injunction sought would be rendered futile.” Id.
A. Likelihood of Success on the Merits
This element of a preliminary injunction requires the fact-finder to analyze the legal arguments underlying the request for injunctive relief. Plaintiffs must “demonstrate[] a reasonable probability of ultimate success on the merits,” showing that the plaintiff is “entitled to the permanent injunction which the complaint demands.” Waste Mgmt., Inc. v. Wisconsin Solid Waste Recycling Auth., 84 Wis. 2d 462, 467, 267 N.W.2d 659 (Wis. 1978). This means it is not enough for a plaintiff to simply allege a violation of the Wisconsin Contract Clause; instead, a plaintiff must set forth sufficient facts showing by reasonable probability that a Legislative Action violated the clause—at least as it applies to the plaintiff. Nevertheless, whether to grant a temporary injunction is within the court’s discretion. Joint Sch. Dist., No. 1, City of Wisconsin Rapids v. Wisconsin Rapids Educ. Ass’n, 70 Wis. 2d 292, 308, 234 N.W.2d 289, 299 (Wis. 1975); Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 524, 259 N.W.2d 310 (Wis. 1977) (“Even if the requirements of the statute had been met, granting an injunction is not mandatory.”).
| 4 | Preliminary injunctions are sometimes referred to as temporary injunctions, and orders are entered on a temporary basis subject to a later trial; permanent injunctions are entered, if at all, after trial on the merits, and are embodied in a final judgment. |
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B. Final Judgment
To obtain a permanent injunction, the plaintiff must win at trial and obtain a final judgment in its favor. Pure Milk Prods. Co-op. v. National Farmers Org., 64 Wis. 2d 241, 256–57, 219 N.W.2d 564 (Wis. 1974). If it obtains a preliminary injunction, a permanent injunction is an available final remedy. Id. As with preliminary injunctions, “permanent injunctions are not to be issued lightly.” Id.
C. Irreparable Harm and Inadequate Remedy at Law
To obtain either a preliminary or permanent injunction a party must demonstrate that it would suffer irreparable harm and lacks an adequate remedy at law. Werner, 80 Wis. 2d 513, 521. These two factors appear to be pragmatically indistinguishable. An injury is irreparable if the legal remedy—generally damages—would not provide adequate relief. Pure Milk Prods. Co-op. v. National Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (Wis. 1979) (“To invoke the remedy of injunction the plaintiff must moreover establish that the injury is irreparable, i.e. not adequately compensable in damages.”); see also Werner, 80 Wis. 2d at 524 (finding that monetary damages would be adequate remedy and affirming denial of injunction). In general, “courts should not restrain illegal acts merely because they are illegal unless the injury sought to be avoided is actually threatened or has occurred.” Wisconsin Rapids Educ. Ass’n, 70 Wis. 2d 292, 311.
Consistent with this approach, the Seventh Circuit has held that “[a] harm is irreparable if it cannot be prevented or fully rectified by the final judgment after trial.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1089 (7th Cir. 2008) (internal quotations omitted). If a trial on the merits can be conducted before the injury would occur there is no need for interlocutory relief. See Sch. Dist. of Slinger, 210 Wis. 2d at 370–71.
Wisconsin courts have found that interference with contractual rights could be a sufficiently adequate threat to warrant injunctive relief. Pure Milk, 64 Wis. 2d 241, 256–57 (holding that injunction could issue to prevent inducement to breach contracts). Again, however, if any interference with contractual rights could be remedied with money damages, it will be difficult to make the showing of irreparable harm and inadequate remedy at law required for an injunction to issue.
In a suit challenging Legislative Action under the Wisconsin Contract Clause, the availability of money damages would be constrained by sovereign immunity, which generally precludes a party from bringing a suit for money damages against the State. “If the legislature has not specifically consented to the suit, then sovereign immunity deprives the court of personal jurisdiction over the State, assuming that the defense has been properly raised.” PRN Associates LLC v. State, Dept. of Admin., 2009 WI 53, ¶ 51, 317 Wis. 2d 656, 684, 766 N.W.2d 559, 573. However, a general exception to the State’s sovereign immunity is that “courts may entertain suits to enjoin state officers and state agencies from acting beyond their constitutional or jurisdictional authority. These suits are permitted because they are suits against individuals acting in excess of their authority.” City of Kenosha v. State, 35 Wis. 2d 317, 323, 151 N.W.2d 36, 39 (Wis. 1967). Because Wis. Stat. § 196.027 does not expressly waive the State’s sovereign immunity, it is likely that the defense would apply if the State properly raised it. This, in turn, may make financial harm irreparable in a way it would not be in a suit between private parties, enhancing the availability of injunctive relief as a remedy for bondholders adversely affected by Legislative Action.
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D. Opinion
Based on our review of the judicial authority, as discussed in this opinion, but subject to the qualifications, limitations and assumptions set forth herein, it is our opinion that sound and substantial arguments would support granting preliminary and permanent injunctive relief to prevent implementation of any law determined to limit, alter, impair or reduce the value of the Environmental Control Property or Environmental Control Charge in violation of the Wisconsin Contract Clause; however, the decision to grant such relief will be in the discretion of the court.
III. THE WISCONSIN TAKINGS CLAUSE
The Wisconsin Takings Clause provides: “The property of no person shall be taken for public use without just compensation therefor.” WI Const. art. I, § 13. Under this clause, if a government action constitutes a taking of a private property, the property owner may be entitled to just compensation. “Takings jurisprudence has developed from two competing principles: on one hand, respect for the property rights of individuals; on the other, recognition that the government retains the ability, in furtherance of the interests of all citizens, to regulate an owner’s potential uses of land.” Zealy v. City of Waukesha, 201 Wis. 2d 365, 373, 548 N.W.2d 528, 531 (1996).
Wisconsin courts generally recognize three types of takings: physical, regulatory, and ad hoc takings. R.W. Docks & Slips v. State, 2001 WI 73, ¶¶ 3–4, 14–17, 244 Wis. 2d 497, 506–08, 628 N.W.2d 781, 786; Eberle v. Dane County Bd. of Adjustment, 227 Wis. 2d 609, 621–22, 595 N.W.2d 730, 737 (Wis. 1999). A physical taking “involves an ‘actual physical occupation’ of private property.” Brenner v. New Richmond Regional Airport Comm’n, 2012 WI 98, ¶ 48, 343 Wis. 2d 320, 339, 816 N.W.2d 291, 301. A regulatory taking denies a property owner all or substantially all practical uses of his property. Eberle, 227 Wis. 2d 609, 621–22. An ad hoc taking is often a type of regulatory taking where a court will consider, among other factors, the severity of the harm imposed on the property owner and the owner’s investment-backed expectations in the property, but will ultimately depends on the specific facts of a case. R.W. Docks, 2001 WI 73, ¶¶ 15–17. Though whether a taking has occurred is a question of state law, the Wisconsin Supreme Court “generally appl[ies] the same standards that are used to determine whether a taking occurred under the Fifth Amendment of the United States Constitution.” Wisconsin Medical Soc’y, Inc. v. Morgan, 2010 WI 94, ¶ 38, 328 Wis.2d 469, 490, 787 N.W.2d 22, 3. See also Zealy, 201 Wis. 2d at 374 (“This court has adopted a similar method of inquiry” for determining regulatory takings as the United States Supreme Court).
A taking may apply not only to real property, but also to personal property and intangible property interests so long as the purported property owner has a vested right to the property. Wisconsin Med. Soc’y, 2010 WI 94, ¶¶ 41, 88–93. If a court finds that a taking has occurred, it should determine whether the property owner is entitled to just compensation.
A. Evidence of a Vested Property Interest
To qualify for just compensation, a property interest need not be tangible property. “Rather, ‘[a] property interest is constitutionally protected if state law recognizes and protects that interest.’” Wisconsin Med. Soc’y, 2010 WI 94, ¶ 41 (quoting Thorp v. Town of Lebanon, 2000 WI 60, ¶ 46, 235 Wis. 2d 610, 612 N.W.2d 59).
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Wisconsin law recognizes and protects contract rights and other intangible property interests under the Wisconsin Takings Clause. “A contractual relationship is [one] source of property interests. . . .” Wisconsin Med. Soc’y, 2010 WI 94, ¶ 58. However, “Article I, Section 13 protects a wide variety of property interests recognized by state law. Contract rights are not the sine qua non for a property interest in a state fund. In fact, we have specifically held that property interests arise from a much broader set of factors than contract rights.” Id. ¶ 57. See, e.g., Wisconsin Retired Teachers Ass’n, Inc. v. Emp. Trust Funds Bd., 207 Wis.2d 1, 558 N.W.2d 83 (Wis. 1997) (finding a property right in a state-sponsored retirement trust fund); Fazio v. Dep’t of Emp. Trust Funds, 2006 WI 7, 287 Wis.2d 106, 708 N.W.2d 326 (finding that beneficiaries of Wisconsin Retirement System lump-sum death benefits have a property right despite never contracting directly with the State). Moreover, even “‘beneficial’ rights—such as rights in a trust estate—rather than legal or possessory rights” may be constitutionally protected. Wisconsin Med. Soc’y, 2010 WI 94, ¶ 59.
Regardless of the form of property, to be entitled to compensation the property owner must have a vested right to the property. Wisconsin Med. Soc’y, 2010 WI 94, ¶¶ 88–93, 103, 105. Wisconsin courts have defined a “vested right” differently. Lands’ End, Inc. v. City of Dodgeville, 2016 WI 64, ¶¶ 68–70, 370 Wis. 2d 500, 527–28. One definition of vested right is a right that “has been so far perfected that it cannot be taken away by statute.” Society Ins. v. Labor & Industry Review Com’n, 2010 WI 68, ¶ 29, 326 Wis. 2d 444, 466, 786 N.W.2d 385, 396 (quotation omitted). Another definition is an existing and accrued right of action. Lands’ End, 2016 WI 64, ¶ 70. Yet another is that a vested right “is a presently legally enforceable right, not dependent on uncertain future events. Id. at ¶ 68. A vested right is not created by a “mere expectation of a future benefit or contingent interest. . . .” Id. at ¶ 49. A party has a property interest if he or she has a “legitimate claim of entitlement” to the property, as opposed to an “abstract need or desire” or “unilateral expectation.” Wisconsin Med. Soc’y, 2010 WI 94, ¶ 42 (quoting Taplick v. City of Madison Pers. Bd., 97 Wis.2d 162, 170, 293 N.W.2d 173 (1980)). See also Ass’n of State Prosecutors, 199 Wis.2d at 558 (holding that vested members of a Milwaukee County retirement plan held a property right subject to just compensation).
There is support for an argument that the bondholders (or the Indenture Trustee acting on their behalf) have a vested property interest in the ETBs and the Environmental Control Property under any definition of vested right listed above. The ETBs and the Environmental Control Property constitute a form of intangible property comprised of contractual rights and other rights, including a right to collect the Environmental Control Charge as needed to amortize the ETBs. Wisconsin courts have held that contractual rights and other intangible property interests, such as an interest in a formal trust fund, may be protected by the Wisconsin Takings Clause. Wisconsin Med. Soc’y, 2010 WI 94, ¶ 103. Additionally, the Financing Act provides that it creates a vested property interest in the Environmental Control Property upon the PSCW’s issuance of a financing order. Subsection (5) of the Financing Act provides in part:
1. Environmental control property that is specified in a financing order shall constitute a present property right notwithstanding that the imposition and collection of environmental control charges depend on the energy utility to which the order is issued performing its servicing functions relating to the collection of environmental control charges and on future energy consumption. Such property is considered to exist whether or not the revenues or proceeds arising from the property have accrued and whether or not the value of the property is dependent on the receipt of service by customers of an energy utility.
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2. Environmental control property specified in a financing order shall continue to exist until the environmental trust bonds issued pursuant to the order are paid in full and all financing costs of the bonds have been recovered in full.
Wis. Stat. § 196.027(5)(a) (emphasis added). While a court’s analysis of a vested right may not necessarily be bound by the terms of the Financing Act, the plain language of the Act supports the conclusion that, directly or indirectly, the bondholders have present property rights in the Environmental Control Property.
B. Whether a Taking Has Occurred
When a cognizable, vested property interest exists, the analysis continues by assessing whether the State action was a “taking” for which just compensation is due. Whether a taking has occurred is a fact-intensive question that depends not on what the State intends to do, but rather on the effect of the State’s action. San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 652–53 (1981) (Brennan, J., dissenting) (cited with approval by Eberle, 227 Wis. 2d at ¶ 23). Incidental or consequential property damages likely will not amount to a taking. Howell Plaza, Inc. v. State Highway Commission, 92 Wis. 2d 74, 80–81, 284 N.W.2d 887, 890 (Wis. 1979) (citing Wisconsin Power & Light Co. v. Columbia County, 3 Wis. 2d 1, 6, 87 N.W.2d 279, 281–82 (Wis. 1958)).
As noted, Wisconsin courts generally recognize three types of takings: physical, regulatory, and ad hoc takings, though an ad hoc taking is often a type of regulatory taking that does not rise to the level of a “categorical” regulatory taking. R.W. Docks, 2001 WI 73, ¶¶ 3–4, 14–17.
A physical taking “involves an ‘actual physical occupation’ of private property.” Brenner v. New Richmond Regional Airport Com’n, 2012 WI 98, ¶ 48, 343 Wis. 2d 320, 339, 816 N.W.2d 291, 301. “[A] permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” Id. at ¶ 49 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)). But an occupation does not need to be permanent to constitute a taking. Id. This is true “even if the Government physically invades only an easement in property . . . .” Id. (citing Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979)).
Distinct from physical property invasions are regulatory takings. Eberle, 227 Wis. 2d 609, 622 (“Takings which do not involve physical invasions of land are called ‘regulatory takings.’”) (citation omitted). A regulatory taking is a regulation or legal restriction that denies a property owner of all or substantially all practical uses of his property. Id. at 621–22; Brenner, 2012 WI 98, ¶ 45. An owner’s “retention of some ‘substantial use’ . . . relieves the government of the burden to pay just compensation.” Murr and Wisconsin: The Badger State’s Take on Regulatory Takings, 102 Marq. L. Rev. 261, 281 (2018) (citing Zealy v. City of Waukesha, 201 Wis. 2d 365, 374, 548 N.W.2d 528 (Wis. 1996)).
In Zinn, the court found that a regulatory taking occurred where a DNR ruling (that was later reversed) temporarily converted “approximately 200 acres of Zinn’s property into land titled in the state.” Zinn v. State, 112 Wis. 2d 417, 426. The DNR’s ruling temporarily deprived Zinn of the sole riparian rights she had previously enjoyed, which constituted a taking because the court found it “difficult to conceive of a greater restriction on the property, in the absence of actual physical occupancy, than the loss of title to private land.” Id. at 421, 426–27.
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On the other hand, in Zealy v. City of Waukesha, the court found that the City of Waukesha’s rezoning, which reduced Zealy’s property from 10.4 acres to 2.1 acres, was not in fact a taking because he was not deprived “of all or substantially all of the use of his land.” 201 Wis. 2d at 380. The court found that the remaining 2.1 acres were still viable for economic purposes, and therefore Zealy was not robbed of “all or substantially all” of the use of his land. Id.
While physical takings require physical occupations of property, regulatory takings can extend to intangible personal property so long as the claimant has a vested interest in the property taken. Wisconsin Retired Teachers Ass’n, Inc. v. Employee Trust Funds Bd., 207 Wis. 2d 1, 24, 558 N.W.2d 83, 93 (Wis. 1997) (finding that a taking occurred when legislation diverted $78 million in state retirement funds from a benefit to which all teachers were entitled to a different benefit which only some teachers could enjoy).
Like physical takings, regulatory takings may be temporary. If the test “‘is satisfied there has been taking even though the property owner has regained full use of the property due to the government’s rescission of the restriction.’” Eberle, 227 Wis. 2d at ¶ 29 (quoting Zinn, 112 Wis. 2d at 429). Thus, once a taking occurs, the right to just compensation persists even if the government action that gave rise to the taking is otherwise repealed, rescinded, amended, or reversed by a court. First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., 482 U.S. 304, 328 (1987).
If neither a physical taking nor a categorical regulatory taking has occurred, a court may nonetheless determine on an ad hoc basis that the government has unconstitutionally taken private property. R.W. Docks, 2001 WI 73, ¶¶ 3–4. An ad hoc taking is often a type of regulatory taking that does not rise to the level of a “categorical” taking. Id. at ¶¶ 3–4. Whether an ad hoc taking has occurred depends greatly on the specific facts of a case. Id. at ¶¶ 15–17. In determining whether an ad hoc taking exists, courts may examine several factors, including, but not limited to: the nature and character of the government’s action, the severity of the economic impact on the property owner, the length of the restriction, the degree to which the government action has interfered with the owner’s investment-backed expectations in the property, and whether the taking substantially advances legitimate State interests or denies an owner economically viable use of his land. Id. at ¶ 17; Zealy, 201 Wis.2d at 374; Eberle, 227 Wis. 2d at 624 (citing Zinn, 112 Wis.2d at ¶¶ 32–33). Wisconsin courts draw this analysis from the U.S. Supreme Court’s analysis in Penn Central Transp. Co. v. City of N.Y., 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L.Ed.2d 631 (1978)).
In R.W. Docks, a marina developer brought an action against the Wisconsin DNR, alleging that the DNR’s refusal to grant the developer a permit to construct various boat slips constituted a taking of his property. R.W. Docks, 2001 WI 73, ¶¶ 8, 10. The court declined to find that a compensable taking had occurred. Id. at ¶ 24. Instead, examining the facts, the court explained that at most, the only rights implicated were “riparian rights of reasonable access and use,” and such rights were encumbered by the public trust doctrine. Id. at ¶¶ 27–28. This meant that the owner’s rights were heavily regulated, thereby weighing against a finding of severe interference with investment-backed expectations. Id. at ¶¶ 28–29.
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Given the intangible nature of the ETBs and Environmental Control Property, any taking would occur through a Legislative Action or other governmental action (a regulatory or ad hoc taking) rather than a direct physical occupation of the property (a physical taking).
The ETBs are amortized from funds derived from the Environmental Control Charge and other Environmental Control Property. If the State enacted legislation completely repealing the Environmental Control Charge, then it would have effectively eliminated the revenue source of the payments due on the ETBs. The same would be true if the PSCW issued an order prohibiting collection of the Environmental Control Charge. In such a case, a strong argument could be made that the State had denied the bondholders all or substantially all practical uses of their property. Eberle, 227 Wis. 2d 609, 621–22. If the impact of a Legislative Action or other governmental action were less severe, the argument would not be as strong, but the inquiry would be the same: whether the action denied the bondholders all or substantially all practical uses of their property. If the Environmental Control Charge or Environmental Control Property is substantially impacted by a Legislative Action or other governmental action, payment of the ETBs could become uncertain, the marketability of the ETBs could be negatively affected, and the bondholders’ rights and remedies could be reduced. If such an action denied the bondholders all or substantially all practical uses of their property, a court would have a basis to find an unconstitutional regulatory taking.
Alternatively, a court may consider whether an ad hoc taking has occurred by examining, in particular, the nature and character of the government’s action, the severity of the economic impact on the bondholders, the length of the restriction, and the degree to which the government action has interfered with the bondholders’ investment-backed expectations in the property. R.W. Docks, 2001 WI 73, ¶ 17. Because the utility industry is highly regulated in general, as are environmental trust bonds in particular, it is possible that this would weigh against a finding that a Legislative Action severely interfered with the bondholders’ investment-backed expectations. Id. at ¶ 29. However, the Financing Act—by including the State Pledge and further stating that Environmental Control Property “shall constitute a present property right” and “shall continue to exist until the environmental trust bonds issued pursuant to the order are paid in full”—may tip the scale in the opposite direction. Wis. Stat. § 196.027(5)(a).
Ultimately, the character of any future Legislative Action or other governmental action cannot be known at this time, nor can the circumstances in which the action is adopted. In the face of that uncertainty, the foregoing analysis reflects the framework a court would apply to determine whether a taking has occurred under the Wisconsin Takings Clause.
C. Just Compensation
If a government action amounts to a taking of private property for public use and such taking was necessary, then the government must pay just compensation to the property owner. Eberle, 227 Wis. 2d 609, 622, 633. The just compensation inquiry may be broken down to three steps, analyzing: (1) whether the property was taken for a “public use”; (2) whether the taking was “necessary”; and (3) how much compensation is “just.”
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| 1. | Whether the property was taken for a public use |
The just compensation analysis begins with asking whether the property was taken for a “public use.” This is because the legislature may not take property for a non-public use, Falkner v. Northern States Power Co., 248 N.W.2d 885, 75 Wis. 2d 116 (Wis. 1977), such as taking private property and giving it to another owner for private use, even after providing just compensation. See Pratt v. Brown, 3 Wis. 603, 612 (Wis. 1854).
A court should start with a presumption that a use is public if the legislature has previously declared it so. David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 579–80, 66 N.W.2d 362, 373–74 (Wis. 1954). However, a court may overturn the legislature’s public use finding if it was arbitrary or unreasonable. Id. at 579.
Courts have found that a public use is one that promotes the general welfare, Wisconsin Water Co. v. Winans, 85 Wis. 26, 54 N.W. 1003, 1007 (Wis. 1893) (internal citations omitted), and “implies possession, occupation and enjoyment of the land by the public, or public agencies,” David Jeffrey Co., 267 Wis. at 571. If taken property is vested in private owners but the public retains definite rights to use or enjoy it and the legislature retains regulatory authority over it, then such a use can constitute a public use. Winans, 54 N.W. at 1007 (quoting Lewis, Em. Dom. § 165). A taking is for public use when the intended use advances the public welfare by improving the subject property and eliminating health threats found therein. David Jeffrey Co., 267 Wis. at 586.
For example, in David Jeffrey Co., in enacting the Blighted Area Law, the legislature declared the public health, safety, morals, and welfare to be “seriously threatened” by certain blighted properties. Id. at 565, 578. The court agreed, finding that condemning property to eliminate and prevent blight was a public use. Id. at 579–80.
Conversely, a taking is not for a public use where the intended public purpose is unclear and the government fails to assure such use will be carried out. Schumm v. Milwaukee Cty., 258 Wis. 256, 257, 45 N.W.2d 673, 674 (Wis. 1951). In Schumm, the county sought to condemn land to erect a war memorial, art gallery, and audience hall devoted to the public. Id. at 259. The court was unpersuaded that the intended use was assured to be a public use because the contract for the project failed to bind the parties to engage in a public use and the county board failed to take the proper resolutions authorizing the project. Id. at 260. Accordingly, the court held that because the proposed use for the subject property was uncertain, the use did not qualify as a “public use” and the taking was prohibited. Id. at 266.
| 2. | Whether the taking was necessary |
Second, a taking must be “necessary” to justify government action. Whether a taking is necessary is determined by the Legislature and subject to judicial review. TFJ Nominee Tr. v. State Dep’t of Transp., 2001 WI App. 116, ¶¶ 28–29, 244 Wis. 2d 242, 257–58, 629 N.W.2d 57, 64–65. “Necessary” has been interpreted to mean “reasonably necessary, reasonably requisite and proper for the accomplishment of the public purpose for which the property is sought; necessary does not mean absolutely imperative.” Id. at ¶¶ 28–29 (quoting Falkner, 75 Wis. 2d at 131). Furthermore, a court will not disturb a government’s determination of necessity if such decision is reasonable and absent a “gross abuse of discretion.” TFJ Nominee Tr., 2001 WI App 116 at ¶ 32.
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For instance, in TFJ Nominee Tr., the court upheld a finding by the Wisconsin Department of Transportation (“DOT”) that relocating a highway access point was necessary because the DOT’s determination was based on public safety concerns. Id. at ¶¶ 29–32.
A taking is not necessary to the extent it exceeds what is needed to further a public use. Mitton v. Wisconsin Dep’t of Transp., 184 Wis. 2d 738, 740, 516 N.W.2d 709, 710 (Wis. 1994). In Mitton, the court found that the DOT exceeded its authority when it proposed to condemn 6.26 acres of private property when the DOT only needed 1.26 acres for its highway right-of-way. Id. at 748. The court further held that the DOT did not have authority to condemn property in excess of what was required for the highway. Id.
| 3. | Whether just compensation was paid |
Third, if a private property is taken by the government for a necessary public use, then the government must pay the private property owner “just compensation.” See WI Const. art. I, § 13. Just compensation is the value of the loss incurred by the property owner as a result of the taking, Christus Lutheran Church of Appleton v. Wisconsin Dep’t of Transp., 2019 WI App 67, ¶ 28, 389 Wis. 2d 600, 619, 937 N.W.2d 63, 72–73, rather than what the governmental taker had gained, Besnah v. City of Fond du Lac, 35 Wis. 2d 755, 758, 151 N.W.2d 725, 727 (Wis. 1967).
Just compensation is the amount of value lost by the property owner at the time of the taking, as supported by credible evidence. Besnah, 35 Wis. 2d at 758. In Besnah, the jury heard from appraisers for both sides and determined the value of the condemned property fell within the range of values from the appraisers. Id. at 757. The court found that the jury’s value determination was supported by credible expert testimony; therefore, the jury’s value of the taken property was constitutionally just compensation. See id. at 762.
Nevertheless, no compensation may be considered “just” where the private property taken by the government has no value. City of Milwaukee Post No. 2874 Veterans of Foreign Wars of U.S. v. Redevelopment Auth. of City of Milwaukee, 2009 WI 84, ¶ 82, 319 Wis. 2d 553, 597, 768 N.W.2d 749, 770. Where a jury found that condemned property was valued at $0.00, the court held that just compensation for the tenant was also $0.00. Id. at ¶¶ 32, 82.
The bondholders would be entitled to just compensation if a Legislative Action or other governmental action necessary for public use amounts to a taking of the ETBs, the Environmental Control Property or the Environmental Control Charge. Just compensation should be measured by the value of the property lost by the bondholders, which would depend on the nature of the Legislative Action.
D. Opinion
Based on our review of relevant judicial authority, as discussed in this opinion, but subject to the qualifications, limitations, and assumptions set forth herein, it is our opinion that in a properly prepared and presented case before a court of competent jurisdiction applying Wisconsin law, the court would conclude that the Wisconsin Takings Clause prohibits the State from acting in contravention of the State Pledge, after the ETBs are issued but before they are fully paid, without paying just compensation to the bondholders if doing so (i) constituted a permanent appropriation of the property interest of the bondholders in the ETBs or the Environmental Control Property or a denial of all or substantially all practical uses of the Environmental Control Property; (ii) destroyed the Environmental Control Property; or (iii) substantially limited, altered, impaired, or reduced the value of the Environmental Control Property in a manner than inflicts a severe economic impact on such bondholders and unduly interferes with their reasonable expectations, unless adequate provision were made by law for the protection of the bondholders.
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It must be noted that takings of intangible financial interests can be particularly difficult to establish in a manner that distinguishes them from constitutionally permissible economic regulation. Further, there can be no assurance that any award of compensation would be sufficient to pay the full amount of principal of and interest on the ETBs as and when due. Moreover, because the availability of just compensation would constitute an adequate remedy at law, equitable relief would not be available for a violation of the Wisconsin Takings Clause.
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All of our opinions set forth herein are subject to the following qualifications, limitations, and assumptions:
| 1. | Our opinions herein are based on our evaluation of the existing judicial decisions and arguments related to the factual circumstances likely to exist at the time of a Wisconsin Contract Clause or Wisconsin Takings Clause challenge to a Legislative Action claimed to be an impairment or taking of a bondholder’s property, and are intended to express our belief as to the result if existing judicial decisions are properly applied in a properly prepared and presented case. The prevailing law and circumstances assumed herein could change materially following the issuance of this opinion. We note that judicial analysis of issues relating to the Wisconsin Contract Clause and the Wisconsin Takings Clause and the retroactive effect given to judicial decisions has typically proceeded on a case-by-case basis and that the courts’ determinations, in most instances, are strongly influenced by the facts and circumstances of the particular case. We further note that we are aware of no reported controlling judicial precedents directly on point. Our analysis is necessarily a reasoned application of judicial decisions involving similar or analogous circumstances. Moreover, the application of equitable principles (including the availability of injunctive relief or the issuance of a stay pending appeal) is subject to the discretion of the court asked to apply them. We cannot predict the facts and circumstances which will be present in the future and may be relevant to the exercise of such discretion. Consequently, there can be no assurance that a court will follow our reasoning or reach the conclusion which we believe current judicial precedent supports. It is our and your understanding that none of the foregoing opinions is intended to be a guaranty as to what a particular court would actually hold; rather each such opinion is only an expression as to the decision a court ought to reach if the issue were properly prepared and presented to it and the court followed what we believe to be the applicable legal principles under existing judicial precedent. The recipients of this letter should take these considerations into account in analyzing the risks associated with the subject transaction. |
| 2. | Our opinions assume that a Legislative Action would substantially impair the Environmental Control Property, and by extension the ETBs secured by the Environmental Control Property, if it significantly affects the amount of the Environmental Control Charge, impairs the ability to collect it, or otherwise prevents payment of the ETBs. The determination of whether particular Legislative Action constitutes a substantial impairment of a particular contract is a fact-specific analysis, and nothing in this letter expresses any opinion as to how a court would resolve the issue of “substantial impairment” with respect to the Environmental Control Property, the Environmental Control Charge, or the ETBs vis-à-vis a particular Legislative Action. |
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| 3. | Our opinions assume the Issuer is duly constituted and the relevant transactions described above have occurred in compliance with the Financing Order and the Financing Act, that the Financing Act is valid and that the evidences of indebtedness, securities, and agreements related to the subject financing are duly issued, executed, valid, and binding in all pertinent respects. |
| 4. | The rights of the bondholders may be subject to bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights heretofore or hereafter enacted to the extent constitutionally applicable and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases. |
| 5. | This opinion letter is limited to the laws of the State of Wisconsin, and we express no opinion and make no statement as to the laws of any other jurisdiction. |
| 6. | This opinion letter is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters herein expressly stated. The opinions expressed herein are expressed and made as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to our attention with respect to the opinions expressed above, including any changes in applicable law or any judicial decisions which may hereafter occur. Without limiting the foregoing, we express no opinion as to any actions that may be required to be taken under any applicable law in order to create, perfect or maintain the perfection of any security interest referred to herein. |
While a copy of this opinion letter may be posted to an internet website required under Rule 17g-5 under the Exchange Act and maintained by Wisconsin Electric solely for the purpose of complying with such rule, this opinion letter is solely for the benefit of the addressees set forth in Schedule A hereto in connection with the transactions described herein and may not be quoted, used or relied upon by, nor may copies be delivered to, any other person without our prior written consent, nor may the addressees rely on this opinion letter for any other purpose without our prior written consent.
In accordance with the prospectus on file with the United States Securities and Exchange Commission (“SEC”), a copy of this letter is to be filed as an exhibit to the Registration Statement associated with Registration Nos. 333-252252 and 333-252252-01. We hereby consent to the filing of this letter as an exhibit to the report on Form 8-K filed on the date hereof, relating to said Registration Statement, and to the references to our firm included or made a part of said Registration Statement. In giving the foregoing consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the related rules and regulations of the SEC.
| Sincerely, | ||
| /s/ Quarles & Brady LLP |