1
Exhibit 4.12.4
WHEN RECORDED, RETURN TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ESQ.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
OPEN-END MORTGAGE TO SECURE PRESENT
AND FUTURE LOANS UNDER CHAPTER 25
OF TITLE 34 OF THE GENERAL LAWS OF THE
STATE OF RHODE ISLAND
INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
Dated as of December 19, 2000
between
PMCC CALPINE NEW ENGLAND INVESTMENT LLC
and
STATE STREET TRUST BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION
as Indenture Trustee
--------------------------------------
TIVERTON AND RUMFORD FACILITIES
2
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS..............................................................4
SECTION 2. THE NOTES................................................................5
Section 2.1. Limitation on Notes...................................................5
Section 2.2. Lessor Notes..........................................................6
Section 2.3. Execution and Authentication of Notes.................................6
Section 2.4. Issuance and Terms of the Lessor Notes................................6
Section 2.5. Payments from Indenture Estate Only; No Personal Liability of the
Owner Lessor, the Owner Participant or the Indenture Trustee.......7
Section 2.6. Method of Payment.....................................................7
Section 2.7. Application of Payments...............................................8
Section 2.8. Registration, Transfer and Exchange of Notes..........................9
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes............................9
Section 2.10. Redemptions; Assumption..............................................10
Section 2.11. Payment of Expenses on Transfer......................................13
Section 2.12. Additional Lessor Notes..............................................13
Section 2.13. Restrictions of Transfer Resulting from Federal Securities Laws;
Legend............................................................15
Section 2.14. Security for and Parity of Notes.....................................15
Section 2.15. Acceptance of the Indenture Trustee..................................15
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE...15
Section 3.1. Distribution of Periodic Rent........................................15
Section 3.2. Payments Following Event of Loss or Other Early Termination..........17
Section 3.3. Payments After Lease Indenture Event of Default......................18
Section 3.4. Investment of Certain Payments Held by the Indenture Trustee.........19
Section 3.5. Application of Certain Other Payments................................19
Section 3.6. Other Payments.......................................................19
Section 3.7. Excepted Payments....................................................20
Section 3.8. Distributions to the Owner Lessor....................................20
Section 3.9. Payments Under Assigned Documents....................................20
Section 3.10. Disbursement of Amounts Received by the Indenture Trustee............20
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 4. COVENANTS OF OWNER LESSOR; DEFAULTS; REMEDIES OF INDENTURE TRUSTEE......21
Section 4.1. Covenants of Owner Lessor............................................21
Section 4.2. Occurrence of Lease Indenture Event of Default.......................21
Section 4.3. Remedies of the Indenture Trustee....................................23
Section 4.4. Right to Cure Certain Lease Events of Default........................25
Section 4.5. Rescission of Acceleration...........................................27
Section 4.6. Return of Indenture Estate, Etc......................................28
Section 4.7. Power of Sale and Other Remedies.....................................29
Section 4.8. Appointment of Receiver..............................................30
Section 4.9. Remedies Cumulative..................................................30
Section 4.10. Waiver of Various Rights by the Owner Lessor.........................30
Section 4.11. Discontinuance of Proceedings........................................31
Section 4.12. No Action Contrary to the Facility Lessees' Rights Under the
Facility Leases...................................................31
Section 4.13. Right of the Indenture Trustee to Perform Covenants, Etc.............31
Section 4.14. Further Assurances...................................................31
Section 4.15. Waiver of Past Defaults..............................................32
SECTION 5. DUTIES OF INDENTURE TRUSTEE; CERTAIN RIGHTS AND DUTIES OF OWNER LESSOR..32
Section 5.1. Notice of Action Upon Lease Indenture Event of Default...............32
Section 5.2. Actions Upon Instructions Generally..................................32
Section 5.3. Action Upon Payment of Notes or Termination of Facility Leases.......32
Section 5.4. Compensation of the Indenture Trustee; Indemnification...............33
Section 5.5. No Duties Except as Specified; No Action Except Under Facility
Leases, Indenture or Instructions.................................33
Section 5.6. Certain Rights of the Owner Lessor...................................34
Section 5.7. Restrictions on Dealing with Indenture Estate........................35
Section 5.8. Filing of Financing Statements and Continuation Statements...........35
SECTION 6. INDENTURE TRUSTEE AND OWNER LESSOR......................................36
Section 6.1. Acceptance of Trusts and Duties......................................36
Section 6.2. Absence of Certain Duties............................................37
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.3. Representations and Warranties.......................................38
Section 6.4. No Segregation of Moneys; No Interest................................38
Section 6.5. Reliance; Agents; Advice of Experts..................................39
SECTION 7. SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES......................39
Section 7.1. Resignation or Removal of the Indenture Trustee; Appointment of
Successor........................................................39
Section 7.2. Appointment of Additional and Separate Trustees......................44
SECTION 8. SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS........42
Section 8.1. Supplemental Indenture and Other Amendment With Consent; Conditions
and Limitations...................................................42
Section 8.2. Supplemental Indentures and other Amendments Without Consent.........43
Section 8.3. Conditions to Action by the Indenture Trustee........................44
SECTION 9. MISCELLANEOUS...........................................................45
Section 9.1. Surrender, Defeasance and Release....................................45
Section 9.2. Conveyances Pursuant to Section 4.2 of Site Leases and Subleases.....46
Section 9.3. Appointment of the Indenture Trustee as Attorney; Further Assurances.46
Section 9.4. Indenture for Benefit of Certain Persons Only........................46
Section 9.5. Notices; Furnishing Documents, etc...................................47
Section 9.6. Severability.........................................................48
Section 9.7. Limitation of Liability..............................................48
Section 9.8. Written Changes Only.................................................48
Section 9.9. Counterparts.........................................................49
Section 9.10. Successors and Permitted Assigns.....................................49
Section 9.11. Headings and Table of Contents.......................................49
Section 9.12. Governing Law........................................................49
Section 9.13. Reorganization Proceedings with Respect to the Lessor Estate.........49
Section 9.14. Withholding Taxes: Information Reporting.............................50
Section 9.15. Fixture Financing Statement..........................................50
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TABLE OF CONTENTS
(CONTINUED)
PAGE
APPENDIX
Appendix A Definitions
EXHIBITS
Exhibit A-1 Description of Tiverton Site
Exhibit A-2 Description of Rumford Site
Exhibit B-1 Form of Tiverton Lessor Note
Exhibit B-2 Form of Rumford Lessor Note
Exhibit C Form of Certificate of Authentication
Exhibit D-1 Description of Tiverton Facility
Exhibit D-2 Description of Rumford Facility
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OPEN-END MORTGAGE TO SECURE PRESENT
AND FUTURE LOANS UNDER CHAPTER 25
OF TITLE 34 OF THE GENERAL LAWS OF THE
STATE OF RHODE ISLAND
INDENTURE OF TRUST, MORTGAGE AND SECURITY TRUST
This OPEN-END MORTGAGE TO SECURE PRESENT AND FUTURE LOANS UNDER CHAPTER
25 OF TITLE 34 OF THE GENERAL LAWS OF THE STATE OF RHODE ISLAND, INDENTURE OF
TRUST, MORTGAGE AND SECURITY AGREEMENT (this "Indenture"), dated as of December
19, 2000, between PMCC Calpine New England Investment LLC, a Delaware limited
liability company as mortgagor (the "Owner Lessor") and STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION as mortgagee on behalf of the
Noteholders (the "Indenture Trustee").
WITNESSETH:
WHEREAS, pursuant to the Participation Agreement, the Owner Lessor has
purchased the Tiverton Facility from Tiverton Power Associates Limited
Partnership and the Rumford Facility from Rumford Power Associates Limited
Partnership (the "Facility Lessees");
WHEREAS, the Owner Lessor has entered into a Facility Lease, dated as of
the date hereof with each of the Facility Lessees pursuant to which the Facility
Lessees have leased from the Owner Lessor for a term of years the Facilities,
which they sold to the Owner Lessor pursuant to the Bills of Sale;
WHEREAS, the Tiverton Facility is more particularly described on Exhibit
D-1 hereto and made a part hereof, and the Rumford Facility is more particularly
described on Exhibit D-2 hereto and made a part hereof;
WHEREAS, the Facility Lessees have leased the Tiverton and Rumford
Ground Interests (as hereinafter defined) with the right to nonexclusive
possession thereof to the Owner Lessor pursuant to the certain Tiverton Site
Lease and Rumford Site Lease, respectively, a memorandum of which shall be
recorded with this Indenture in the appropriate registry of [deeds/land records]
described in Exhibits A-1 and A-2, respectively, attached hereto, and the Owner
Lessor simultaneously therewith has leased the Facility Lessees' respective
Ground Interest back to the Facility Lessees pursuant to the Tiverton Site
Sublease and Rumford Site Sublease, respectively;
WHEREAS, the Tiverton and Rumford Sites are more particularly described
in Exhibits A-1 and A-2, respectively, attached hereto;
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WHEREAS, in accordance with this Indenture, the Owner Lessor will (i)
execute and deliver the Tiverton Lessor Notes and the Rumford Lessor Notes, the
proceeds of which will be used by the Owner Lessor to finance a portion of the
Purchase Price for the Rumford Facility and the Tiverton Facility purchased from
the Facility Lessees, and (ii) grant to the Indenture Trustee the security
interests herein provided;
WHEREAS, this Indenture is regarded as a mortgage deed under the laws of
the States of Rhode Island and Maine, as a security agreement under the Uniform
Commercial Codes of the States of New York, Rhode Island, Maine, Connecticut,
Massachusetts and California and as a fixture filing under the laws of the
States of Rhode Island and Maine;
WHEREAS, the Owner Lessor and the Indenture Trustee desire to enter into
this Indenture, to, among other things, provide for (a) the issuance by the
Owner Lessor of the Lessor Notes to be issued on the Closing Date, and
Additional Lessor Notes from time to time and (b) the conveyance and assignment
to the Indenture Trustee on the Closing Date of the Facilities conveyed to the
Owner Lessor and the Owner Lessor's right, title and interest in and under the
Operative Documents executed in connection therewith and all payments and other
amounts received hereunder or thereunder in accordance herewith (excluding
Excepted Payments);
WHEREAS, all things have been done to make the Notes, when executed by
the Owner Lessor, authenticated and delivered hereunder and issued, the valid
obligations of the Owner Lessor; and
WHEREAS, all things necessary to make this Indenture the valid, binding
and legal obligation of the Owner Lessor, for the uses and purposes herein set
forth, in accordance with its terms, have been done and performed and have
happened.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in order to secure
(i) the prompt payment when and as due of the principal of and the Make-Whole
Amount, if any, and interest on the Notes and of all other amounts owing with
respect to all Notes from time to time outstanding hereunder, and the prompt
payment when and as due of any and all other amounts from time to time owing in
respect of the Secured Indebtedness and (ii) the performance and observance by
the Owner Lessor for the benefit of the holders of the Notes and the Indenture
Trustee of all other obligations, agreements, and covenants of the Owner Lessor
set forth hereinafter and in the Notes, the Operative Documents and the other
documents, certificates and agreements delivered in connection therewith:
GRANTING CLAUSE:
The Owner Lessor hereby irrevocably grants, conveys, assigns, transfers,
pledges, bargains, sells and confirms unto the Indenture Trustee and its
successors and permitted assigns, for the benefit of the holders of the Notes
from time to time, a first priority security interest in and mortgage lien on
all estate, right, title and interest of the Owner Lessor, WITH MORTGAGE
COVENANTS and grants a security interest in, to and under the following
described property, rights, interests and privileges, whether now held or
hereafter acquired
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(which collectively, including all property hereafter specifically subjected to
the security interest created by this Indenture by any supplement hereto,
exclusive of Excepted Payments) are included within, and are hereafter referred
to as, the "Indenture Estate"):
(1) the Facilities (described in Exhibits D-1 and D-2 attached
hereto) conveyed to the Owner Lessor pursuant to the Bills of Sale located on
the Tiverton Site and the Rumford Site (said Sites being more particularly
described in Exhibits A-1 and A-2 attached hereto), and the leasehold estates in
the Ground Interest (as hereinafter defined) granted to the Owner Lessor by the
Tiverton Site Lease, the Tiverton Sublease, the Rumford Site Lease and the
Rumford Sublease, together with all titles, estates, interests, rights, powers
and privileges of the Owner Lessor in respect thereof;
(2) all the estate, right, title and interest of the Owner Lessor
in, to and under the Bills of Sale, the Facility Leases, the Facility Site
Leases and Facility Site Subleases, the Calpine Guaranties and the Participation
Agreement (collectively, the "Assigned Documents"), including (a) all amounts of
Periodic Rent and Supplemental Rent and payments of any kind payable under the
Facility Leases, including Termination Value, insurance proceeds and
condemnation, requisition and other awards and payments of any kind for or with
respect to any part of the Indenture Estate as contemplated in the Assigned
Documents and (b) all rights of the Owner Lessor to exercise any election or
option or to make any decision or determination or to give or receive any
notice, consent, waiver or approval or to take any other action under or in
respect of any Assigned Document, as well as all the rights, powers and remedies
on the part of the Owner Lessor, whether arising under any Assigned Document or
by statute or at law or equity or otherwise, and whether or not arising out of
any Significant Lease Default, Lease Indenture Event of Default or Event of
Default (except to the extent provided under Section 5.6 hereof);
(3) all rents (including Periodic Rent and Supplemental Rent payable
under the Facility Leases), issues, profits, royalties, products, revenues, and
other income of all property from time to time subjected or required to be
subjected to the Lien of this Indenture, including all payments or proceeds
payable to the Owner Lessor after termination of the Facility Leases with
respect to the Facilities or any portion thereof as the result of the sale,
lease or other disposition of the Facilities or any portion thereof and the
Ground Interests or any portion thereof, and all the estate, right, title, and
interest, of every nature whatsoever of the Owner Lessor in and to the same and
every part thereof (the "Revenues");
(4) all moneys, securities and other investment property now or
hereafter deposited or paid or required to be deposited or paid with the
Indenture Trustee pursuant to any term of this Indenture or any other Assigned
Document and held or required to be held by or for the benefit of the Indenture
Trustee hereunder;
(5) all the estate, right, title and interest of the Owner Lessor in
and to any right to restitution from the Facility Lessees in respect of any
determination of invalidity of any Assigned Document;
(6) all rights of the Owner Lessor to amounts paid or payable by the
Facility Lessees to the Owner Lessor under the Participation Agreement and all
rights of the Owner Lessor to enforce payment of any such amounts;
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(7) all other property, rights and privileges of every kind and
description, real, personal and mixed, tangible and intangible and all interests
therein, now held or hereafter acquired by the Owner Lessor pursuant to any term
of any Assigned Document, whether located on the Tiverton or Rumford Site or
elsewhere and whether or not subjected to the Lien of this Indenture by a
supplement hereto; and
(8) all proceeds of the foregoing;
BUT EXCLUDING from such property, rights and privileges all Excepted
Payments and SUBJECT TO the rights of the Owner Lessor and the Owner Participant
hereunder, including under Sections 4.3(d), 4.4 and 5.6 hereof;
TO HAVE AND TO HOLD the Indenture Estate and all parts, rights, members
and appurtenances thereof, unto the Indenture Trustee and the successors and
permitted assigns of the Indenture Trustee, for the benefit and security of the
Noteholders from time to time, forever, and in fee simple as to all parts
thereof constituting real property;
PROVIDED, HOWEVER, that if the principal of and the Make-Whole Amount,
if any, and interest on the Notes, and all other Secured Indebtedness hereunder
shall have been paid and the Owner Lessor shall have performed and complied with
all the covenants, agreements, terms and provisions hereof, then this Indenture
and the rights hereby granted shall terminate and cease.
Concurrently with the delivery of this Indenture, the Owner Lessor is
delivering to the Indenture Trustee the chattel paper originally-executed
counterpart of each of the Facility Leases. All property referred to in this
Granting Clause, whenever acquired by the Owner Lessor, shall secure all
obligations under and with respect to the Notes at any time outstanding. Any and
all properties referred to in this Granting Clause which are hereafter acquired
by the Owner Lessor, shall, without further conveyance, assignment or act by the
Owner Lessor or the Indenture Trustee thereby become and be subject to the
security interest hereby granted as fully and completely as though specifically
described herein.
This Indenture is intended to constitute a security agreement as
required under the Uniform Commercial Codes of the States of New York, Rhode
Island, Maine, Connecticut, Massachusetts and California.
The Indenture Trustee, for itself and its successors and permitted
assigns, hereby agrees that it shall hold the Indenture Estate, in trust for the
benefit and security of (i) the holders from time to time of the Notes from time
to time outstanding, without any priority of any one Note over any other except
as herein otherwise expressly provided and (ii) the Indenture Trustee, and for
the uses and purposes and subject to the terms and provisions set forth in this
Indenture. It is expressly agreed that anything herein contained to the contrary
notwithstanding, the Owner Lessor shall remain liable under the Assigned
Documents to perform all of the obligations assumed by it thereunder, all in
accordance with and pursuant to the terms and provisions thereof, and the
Indenture Trustee and the Noteholders shall have no obligation or liability
under any Assigned Document by reason of or arising out of the assignment
hereunder, nor shall the Indenture Trustee or the Noteholders be required or
obligated in any manner, except as herein
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expressly provided, to perform or fulfill any obligation of the Owner Lessor
under or pursuant to any such Assigned Document or, except as herein expressly
provided, to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it, or to present or file any claim, or
to take any action to collect or enforce the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times).
Accordingly, the Owner Lessor, for itself and its successors and
permitted assigns, agrees that all Notes are to be issued and delivered and that
all property subject or to become subject hereto is to be held subject to the
further covenants, conditions, uses and trusts hereinafter set forth, and the
Owner Lessor, for itself and its successors and permitted assigns, hereby
covenants and agrees with the Indenture Trustee, for the benefit and security of
the holders from time to time of the Notes from time to time outstanding and to
protect the security of this Indenture, and the Indenture Trustee agrees to
accept the trusts and duties hereinafter set forth, as follows:
SECTION 1. DEFINITIONS
(b) (a) Unless the context hereof shall otherwise require, capitalized
terms used, including those in the recitals, and not otherwise defined herein
shall have the respective meanings set forth in Appendix A attached hereto. The
general provisions of such Appendix A shall apply to the terms used in this
Indenture and specifically defined herein.
(c) (b) In addition, the following terms shall have the following
meanings.
"Ground Interests" means the interest in the Rumford Site as described
in Exhibit A-2 or the Tiverton Site as described in Exhibit A-1 leased to the
Owner Lessor and subleased to the applicable Lessee pursuant to the Rumford Site
Lease and Rumford Site Sublease and the Tiverton Site Lease and Tiverton Site
Sublease, respectively.
"Secured Indebtedness" means principal of and the Make-Whole Amount, if
any, and interest on and other amounts due under all Notes and all other sums
payable to the Indenture Trustee or the Noteholders from time to time hereunder
and under the Participation Agreement and the other Operative Documents by the
Facility Lessees, the Owner Participant and the Owner Lessor, including:
(i) (i) The indebtedness evidenced by the Lessor Notes, together
with interest thereon at the rate provided in each Lessor Note and the
Make-Whole Amount thereon and together with any and all renewals,
modifications, consolidations and extensions of the indebtedness
evidenced by such Lessor Notes, and principal of such Lessor Notes being
due and payable as provided in such Lessor Notes;
(ii) (ii) Any and all other indebtedness now owing or which may
hereafter be owing by the Owner Lessor to or for the benefit of the
Indenture Trustee under the Operative Documents including indemnities
and other Supplemental Rent payable by the Facility Lessees under the
Operative Documents, whether evidenced by Additional Lessor Notes issued
pursuant to Section 2.12 hereof or otherwise, however and whenever
incurred or evidenced, whether direct or indirect, absolute or
contingent, due or to become due, together with interest thereon at the
rate provided in each Additional Lessor Note and the Make-Whole Amount
thereon (if any) and together with any and all
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renewals, modifications, consolidations and extensions of the
indebtedness evidenced by such Additional Lessor Notes, and principal of
such Additional Lessor Notes being due and payable as provided in each
such Additional Lessor Note.
(iii) (iii) Any and all additional advances made by the Indenture
Trustee to protect or preserve the Indenture Estate or the security
interest and other interests created hereby on the Indenture Estate or
for taxes, assessments or insurance premiums as hereinafter provided or
for performance of any of the Owner Lessor's obligations hereunder or
for any other purpose provided herein, including advances made pursuant
to Section 4.13 hereof (whether or not the Owner Lessor remains the
owner of the Indenture Estate at the time of such advances); and
(iv) (iv) Any and all expenses incident to the collection of the
Secured Indebtedness and the foreclosure hereof by action in any court
or by exercise of the power of sale herein contained.
SECTION 2. THE NOTES
Section 2.1. Limitation on Notes. No Notes may be issued under the
provisions of, or become secured by, this Indenture except in accordance with
the provisions of this Section 2. The aggregate principal amount of the Notes
which may be authenticated and delivered and outstanding at any one time under
this Indenture shall be limited to the principal amount of the Lessor Notes
issued on the Closing Date to the Pass Through Trustee, plus the aggregate
principal amount of Additional Lessor Notes issued pursuant to Section 2.12.
Section 2.2. Lessor Notes. There is hereby created and established
hereunder a note in the aggregate principal amount of $190,000,000 with a final
maturity date of July 15, 2018, substantially in the form set forth in Exhibit
B-1 to this Indenture (the "Tiverton Lessor Notes"). There is hereby created and
established hereunder a note in the aggregate principal amount of $176,000,000
with a final maturity date of July 15, 2018, substantially in the form set forth
in Exhibit B-2 to this Indenture (the "Rumford Lessor Notes" and, together with
the Tiverton Lessor Note, the "Lessor Notes").
Section 2.3. Execution and Authentication of Notes. Each Note issued
hereunder shall be executed and delivered on behalf of the Owner Lessor by one
of its authorized signatories, be in fully registered form, be dated the date of
original issuance of such Note and be in denominations of not less than $1,000.
Any Note may be signed by a Person who, at the actual date of the execution of
such Note, is an authorized signatory of the Owner Lessor although at the
nominal date of such Note such Person may not have been an authorized signatory
of the Owner Lessor. No Note shall be secured by or be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears thereon a certificate of authentication in the form contained in Exhibit
C (or in the appropriate form provided for in any supplement hereto executed
pursuant to Section 2.12 hereof), executed by the Indenture Trustee by the
manual signature of one of its authorized officers, and such certificate upon
any Note shall be conclusive evidence that such Note has been duly authenticated
and delivered hereunder. The Indenture Trustee shall authenticate and deliver
the Lessor Note for original issue on the Closing Date in the principal amount
specified in Section 2.2, upon a written order of the Owner Lessor.
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The Indenture Trustee shall authenticate and deliver Additional Lessor Notes,
upon a written order of the Owner Lessor and satisfaction of the conditions
specified in Section 2.12. Such order shall specify the principal amount of the
Additional Lessor Notes to be authenticated and the date on which the original
issue of Additional Lessor Notes is to be authenticated.
Section 2.4. Issuance and Terms of the Lessor Notes.
(a) Issuance of the Lessor Notes at the Closing. On the Closing Date,
the Lessor Notes shall be issued to the Pass Through Trust in the amounts set
forth in Section 2.2 hereof, and shall be dated the Closing Date.
(b) Principal and Interest. The principal amount of each Lessor Note
shall be due and payable in a series of installments having a final payment date
of July 15, 2018. The principal of each Lessor Note shall be due and payable in
installments on the dates and in the amounts set forth in the Schedule(s)
attached to such Lessor Note on the date of issuance and authentication thereof.
The Schedule(s) to each Lessor Note to the contrary notwithstanding, the last
payment made under such Lessor Note shall be equal to the then unpaid balance of
the principal of such Lessor Note plus all accrued and unpaid interest on, and
any other amounts due under, such Lessor Note. Each Lessor Note shall bear
interest on the principal from time to time outstanding from and including the
date of issuance thereof (computed on the basis of a 360-day year of twelve
30-day months) until paid in full at the rate set forth in such Lessor Note.
Interest on each Lessor Note shall be due and payable in arrears semi-annually
commencing on July 15, 2001, and on each July 15 and January 15 thereafter until
paid in full. If any day on which principal, Make-Whole Amount, if any, or
interest on the Lessor Notes are payable is not a Business Day, payment thereof
shall be made on the next succeeding Business Day with the same effect as if
made on the date on which such payment was due.
(c) Overdue Payments. Interest (computed on the basis of a 360-day year
of twelve 30-day months) on any overdue principal, Make-Whole Amount (if any)
and, to the extent permitted by Applicable Law, interest and any other amounts
payable shall be paid on demand at the Overdue Rate.
(d) Indemnity Amounts. The Owner Lessor agrees to pay to the Indenture
Trustee for distribution in accordance with Section 3.5 hereof any and all
indemnity amounts received by the Owner Lessor which are payable by the Facility
Lessees to (i) the Indenture Trustee, (ii) the Pass Through Trust, or (iii) the
Pass Through Trustee.
Section 2.5. Payments from Indenture Estate Only; No Personal Liability
of the Owner Lessor, the Owner Participant or the Indenture Trustee. Except as
otherwise specifically provided in this Indenture or the Participation
Agreement, all payments in respect of the Notes or under this Indenture shall be
made only from the Indenture Estate, and the Owner Lessor shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments in
accordance with the terms of Section 3 hereof; and the Owner Participant shall
not have any obligation for payments in respect of the Notes or under this
Indenture. The Indenture Trustee and each Noteholder, by its acceptance thereof,
agrees that it will look solely to the income and proceeds from the Indenture
Estate to the extent available for distribution to the Indenture Trustee or such
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Noteholder, as the case may be, as herein provided and that, except as expressly
provided in this Indenture, the Participation Agreement or any other Operative
Document, none of the Owner Participant, the Owner Lessor, the Lease Indenture
Company, nor the Indenture Trustee shall be personally liable to such Noteholder
or the Indenture Trustee for any amounts payable hereunder, under such Note or
for any performance to be rendered under any Assigned Document or for any
liability under any Assigned Document. Without prejudice to the foregoing, the
Owner Lessor will duly and punctually pay or cause to be paid the principal of,
Make-Whole Amount, if any, and interest on all Notes according to their terms
and the terms of this Indenture. Nothing contained in this Section 2.5 limiting
the liability of the Owner Lessor shall derogate from the right of the Indenture
Trustee and the Noteholders to proceed against the Indenture Estate and the
Calpine Guaranties to secure and enforce all payments and obligations due
hereunder and under the Assigned Documents and the Notes.
(a) In furtherance of the foregoing, to the fullest extent permitted by
law, each Noteholder (and each assignee of such Person), by its acceptance
thereof, agrees that neither it nor the Indenture Trustee will exercise any
statutory right to negate the agreements set forth in this Section 2.5.
(b) Nothing herein contained shall be interpreted as affecting the
representations, warranties or agreements of the Owner Lessor set forth in the
Participation Agreement or the LLC Agreement.
Section 2.6. Method of Payment. The Owner Lessor shall maintain an
office or agency where Notes may be presented for payment (the "Paying Agent").
The Owner Lessor may have one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Owner Lessor initially appoints
the Indenture Trustee as Paying Agent in connection with the Notes.
(a) The Owner Lessor shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming due. The Owner
Lessor shall require each Paying Agent (other than the Indenture Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Noteholders or the Indenture Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Notes and shall notify the
Indenture Trustee of any default by the Owner Lessor in making any such payment.
(b) The principal of and the Make-Whole Amount, if any, and interest on
each Note shall be paid by the Paying Agent from amounts available in the
Indenture Estate on the dates provided in the Notes by mailing a check for such
amount, payable in New York Clearing House funds, to each Noteholder at the last
address of each such Noteholder appearing on the Note Register, or by whichever
of the following methods shall be specified by notice from a Noteholder to the
Indenture Trustee: (i) by crediting the amount to be distributed to such
Noteholder to an account maintained by such Noteholder with the Indenture
Trustee, (ii) by making such payment to such Noteholder in immediately available
funds at the Indenture Trustee Office, or (iii) in the case of the Lessor Notes
and in the case of other Notes, if such Noteholder is the Pass Through Trustee,
or a bank or other institutional investor, by transferring such amount in
immediately available funds for the account of such Noteholder to the banking
institution having bank wire transfer facilities as shall be specified by such
Noteholder, such
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transfer to be subject to telephonic confirmation of payment. Any payment made
under any of the foregoing methods shall be made free and clear of and without
reduction for or on account of all wire and like charges and without any
presentment or surrender of such Note, unless otherwise specified by the terms
of the Note, except that, in the case of the final payment in respect of any
Note, such Note shall be surrendered to the Indenture Trustee for cancellation
after such payment. All payments in respect of the Notes shall be made (1) as
soon as practicable prior to the close of business on the date the amounts to be
distributed by the Indenture Trustee are actually received by the Indenture
Trustee if such amounts are received by 12:00 noon New York City time, on a
Business Day, or (2) on the next succeeding Business Day if received after such
time or on any day other than a Business Day. One or more of the foregoing
methods of payment may be specified in a Note. Prior to due presentment for
registration of transfer of any Note, the Owner Lessor and the Indenture Trustee
may deem and treat the Person in whose name any Note is registered on the Note
Register as the absolute owner and holder of such Note for the purpose of
receiving payment of all amounts payable with respect to such Note and for all
other purposes, and neither the Owner Lessor nor the Indenture Trustee shall be
affected by any notice to the contrary. All payments made on any Note in
accordance with the provisions of this Section 2.6 shall be valid and effective
to satisfy and discharge the liability on such Note to the extent of the sums so
paid and (except as provided herein) neither the Indenture Trustee nor the Owner
Lessor shall have any liability in respect of such payment.
Section 2.7. Application of Payments. Each payment on any outstanding
Note shall be applied, first, to the payment of accrued interest (including
interest on overdue principal and the Make-Whole Amount, if any, and, to the
extent permitted by Applicable Law, overdue interest) on such Note to the date
of such payment, second, to the payment of the principal amount of, and the
Make-Whole Amount, if any, on such Note then due (including any overdue
installments of principal) thereunder and third, to the extent permitted by
Section 2.10 of this Indenture, the balance, if any, remaining thereafter, to
the payment of the principal amount of, and the Make-Whole Amount, if any, on
such Note. The order of application of payments prescribed by this Section 2.7
shall not be deemed to supersede any provision of Section 3 hereof regarding
application of funds.
Section 2.8. Registration, Transfer and Exchange of Notes. The Owner
Lessor shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (the "Registrar"). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Owner
Lessor may have one or more co-registrars. The Owner Lessor initially appoints
the Indenture Trustee as Registrar in connection with the Notes. The Indenture
Trustee shall maintain at the Indenture Trustee Office a register in which it
will provide for the registration, registration of transfer and exchange of
Notes (such register being referred to herein as the "Note Register"). If any
Note is surrendered at said office for registration of transfer or exchange
(accompanied by a written instrument of transfer duly executed by or on behalf
of the holder thereof, together with the amount of any applicable transfer
taxes), the Owner Lessor will execute and the Indenture Trustee will
authenticate and deliver, in the name of the designated transferee or
transferees, if any, one or more new Notes (subject to the limitations specified
in Sections 2.3 and 2.13 hereof) in any denomination or denominations not
prohibited by this Indenture, as requested by the Person surrendering the Note,
dated the same date as the Note so surrendered and of like tenor and aggregate
unpaid principal amount. Any Note or Notes issued
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in a registration of transfer or exchange shall be valid obligations of the
Owner Lessor entitled to the same security and benefits to which the Note or
Notes so transferred or exchanged were entitled, including rights as to interest
accrued but unpaid and to accrue so that there will not be any loss or gain of
interest on the Note or Notes surrendered. Every Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Indenture Trustee duly executed by the holder thereof or his attorney
duly authorized in writing, and the Indenture Trustee may require an opinion of
counsel as to compliance of any such transfer with the Securities Act. The
Indenture Trustee shall make a notation on each new Note of the amount of all
payments of principal previously made on the old Note or Notes with respect to
which such new Note is issued and the date on which such new Note is issued and
the date to which interest on such old Note or Notes shall have been paid. The
Indenture Trustee shall not be required to register the transfer or exchange of
any Note during the 10 days preceding the due date of any payment on such Note.
Each Noteholder, by its acceptance of a Note, shall be deemed to
have consented to, and agreed to be bound by, the terms and conditions hereof,
of such Note (and any instrument of assignment or transfer) and of the other
Operative Documents.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes. Upon receipt by
the Owner Lessor and the Indenture Trustee of evidence satisfactory to each of
them of the loss, theft, destruction or mutilation of any Note and, in case of
loss, theft or destruction, of indemnity satisfactory to each of them, and upon
reimbursement to the Owner Lessor and the Indenture Trustee of all reasonable
expenses incidental thereto and payment or reimbursement for any transfer taxes,
and upon surrender and cancellation of such Note, if mutilated, the Owner Lessor
will execute and the Indenture Trustee will authenticate and deliver in lieu of
such Note, a new Note, dated the same date as such Note and of like tenor and
principal amount. Any indemnity provided by the holder of a Note pursuant to
this Section 2.9 must be sufficient in the reasonable judgment of the Owner
Lessor and the Indenture Trustee to protect the Owner Lessor, the Indenture
Trustee, the Paying Agent, the Registrar and any co-registrar or co-paying agent
from any loss which any of them may suffer if a Note is replaced.
Section 2.10. Redemptions; Assumption.
(a) Except as provided in paragraphs (c) and (d) of this Section 2.10 or
as provided in any indenture supplemental hereto, the applicable Notes shall be
redeemed at a price equal to the principal amount of the Notes redeemed,
together with accrued interest on such principal amount so redeemed to the
Redemption Date, in whole or, to the extent set forth in clause (i), (ii), (iii)
or (iv), in part, in the event of:
(i) a termination of either of the Facility Leases pursuant to
Section 10 thereof as a result of the occurrence of an Event of Loss
(other than a Regulatory Event of Loss or an Event of Loss described in
clause (v) of the definition of "Event of Loss");
(ii) a termination of either of the Facility Leases pursuant to
Section 10 thereof as a result of a Regulatory Event of Loss (other than
a termination as a result of a Regulatory Event of Loss set forth in
subsection (B) of clause (iv) of the definition of
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"Event of Loss"), unless the applicable Facility Lessee effects an
assumption of the applicable Notes in accordance with paragraph (b) of
this Section 2.10;
(iii) a termination pursuant to Section 13.1 of either of the
Facility Leases, unless the applicable Facility Lessee purchases the
applicable Facility and effectuates an assumption of the applicable
Notes in accordance with paragraph (b) of this Section 2.10; and
(iv) a termination pursuant to clause (a) of Section 14.1 of
either of the Facility Leases.
Any such redemption shall be made in accordance with the applicable provisions
of Section 3 hereof.
(b) Unless a Significant Lease Default or a Lease Event of Default shall
have occurred and be continuing after giving effect to such assumption, the
obligations and liabilities of the Owner Lessor hereunder and under all of the
Tiverton Notes or the Rumford Notes may be assumed in whole (but not in part) by
the Tiverton Lessee or the Rumford Lessee, respectively, in the event of the
occurrence of (i) a Regulatory Event of Loss affecting the applicable Facility,
or (ii) a termination by the Tiverton Lessee or the Rumford Lessee,
respectively, pursuant to Section 13.1 or 13.2 of the Facility Lease to which
such Facility Lessee is a party, where in connection with such termination the
respective Facility Lessee acquires the applicable Facility, in each case,
pursuant to an assumption agreement (which assumption agreement may be combined
with the indenture supplemental to this Indenture hereinafter referred to in
this Section 2.10(b), and shall provide for the assumption by the applicable
Facility Lessee of the obligations and liabilities of the Owner Lessor and the
Owner Participant under the Operative Documents pertaining to the Facility
leased by such Facility Lessee) which shall make such obligations and
liabilities fully recourse to the applicable Facility Lessee and shall otherwise
be in form and substance acceptable to the Indenture Trustee and the Owner
Lessor. Such assumption agreement shall be accompanied by an Opinion of Counsel.
The applicable Facility Lessee will execute and deliver, and the Indenture
Trustee will authenticate, to each Noteholder in exchange for such old Note a
new Note, in a principal amount equal to the outstanding principal amount of
such old Note and otherwise in substantially similar form and tenor to such old
Note but indicating that the applicable Facility Lessee are the issuers thereof.
When such assumption agreement becomes effective, the Owner Lessor shall be
released and discharged without further act from all obligations and liabilities
assumed by the applicable Facility Lessee. All documentation in connection with
any such assumption (including an indenture supplemental to this Indenture which
shall, among other things, contain provisions appropriately amending references
to the Facility Leases in this Indenture and contain covenants by the applicable
Facility Lessee similar to those contained in the Facility Leases (other than
any covenants which were solely for the benefit of the Owner Participant),
changed as appropriate, and amendments or supplements to the other Operative
Documents, officers' certificates, opinions of counsel and regulatory approvals)
shall be prepared by and at the expense of the applicable Facility Lessee
acceptable in form and substance to the Indenture Trustee. As a condition to the
effectiveness of the assumption by the applicable Facility Lessee and the
release of the Owner Lessor and the Indenture Estate thereby effected, (A) the
Indenture Trustee shall have received an Opinion of Counsel of the applicable
Facility Lessee, including, in the case of clause (2) below, a nationally
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recognized counsel selected by the applicable Facility Lessee and reasonably
acceptable to the Noteholders (it being acknowledged and agreed that the
applicable Facility Lessee's counsel on the Closing Date shall be deemed
acceptable), addressed to the Indenture Trustee and the Noteholders, to the
effect (1) set forth in the definition of "Opinion of Counsel", and (2) that
such assumption agreement and the assumption of the applicable Notes thereunder
would not cause a Tax Event to occur, (3) the Lien of this Indenture shall
continue to be a first priority perfected mortgage and security interest on the
Indenture Estate, and (4) addressing such other issues as the Indenture Trustee
shall reasonably request, and (B) ▇▇▇▇▇'▇ and S&P shall have confirmed that such
assumption will not result in a downgrading of the rating on the Certificates.
(c) The Owner Lessor may, at its option, redeem any Additional Lessor
Notes in whole, or in part, on any date to the extent permitted by, and at the
prices set forth in, the supplemental indenture establishing the terms,
conditions and designations of such Additional Lessor Notes, together with the
accrued interest on such principal amount plus the Make Whole Amount, if any, so
redeemed.
(d) The Lessor Notes shall be redeemed, in whole or, solely to the
extent provided in clause (iii) below, in part, as provided below, at the
redemption price equal to the principal amount thereof, together with accrued
interest on such principal amount, plus the Make-Whole Amount, as follows:
(i) The Lessor Notes shall be redeemed at such redemption price
upon receipt of moneys by the Indenture Trustee as a result of an
optional refinancing pursuant to Section 11.2 of the Participation
Agreement. The Owner Lessor's failure to consummate such redemption as a
result of an event described in this clause (i) following delivery of
such notice shall not constitute a Lease Indenture Event of Default or
any other default under the Operative Documents.
(ii) The Lessor Notes shall be redeemed at such redemption price
upon an optional prepayment, if the Owner Lessor elects to so redeem the
Lessor Notes, as described in the next two succeeding sentences. In the
case of a redemption pursuant to this clause (ii), the Owner Lessor
shall indemnify the Indenture Trustee and the Facility Lessees for any
and all costs and expenses incurred in connection with such redemption
or, in the event no redemption occurs following delivery of notice of
redemption, the failure to consummate any such redemption. The Owner
Lessor's failure to consummate such redemption as a result of an event
described in this clause (ii) following delivery of such notice shall
not constitute a Lease Indenture Event of Default or any other default
under the Operative Documents.
(iii) The Lessor Notes shall be redeemed, in whole or in part,
at such redemption price upon the exercise by either of the Facility
Lessees of their rights to terminate their respective Facility Lease as
a result of an event described in Section 13.2 or clause (b) of Section
14.1 of the Facility Leases. The Owner Lessor's failure to consummate
such redemption as a result of an event described in Section 13.2 of the
Facility Leases following delivery of such notice shall not constitute a
Lease Indenture Event of Default or any other default under the
Operative Documents;
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(iv) The Lessor Notes shall be redeemed at such redemption price
upon termination of either of the Facility Leases pursuant to Section 10
thereof as a result of the occurrence of an Event of Loss described in
clause (v) of the definition of "Event of Loss"; and
(v) The Lessor Notes shall be redeemed at such redemption price
upon termination of either of the Facility Leases pursuant to Section 10
thereof as a result of the occurrence of and Event of Loss described in
subclause (B) or (C) of clause (iv) of the definition of "Event of
Loss".
The Make-Whole Amount, if any, payable with respect to the Notes will be
determined by an investment banking institution of national standing in the
United States (the "Investment Banker") selected by the applicable Facility
Lessee or, if the Owner Lessor or the Indenture Trustee does not receive notice
of such selection at least ten days prior to a scheduled prepayment date or if a
Lease Event of Default under the applicable Facility Lease shall have occurred
and be continuing, selected by the Owner Lessor.
(e) In connection with a termination of a Facility Lease and redemption
of the Notes pertaining to the Facility leased under such Facility Lease in part
as contemplated by clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) or (d)(iii), the
applicable Lessor Note shall be redeemed in part as follows: (1) any amounts
payable by the Tiverton Facility Lessee shall be applied first to the Tiverton
Notes in accordance with Section 2.7 hereof and otherwise in accordance with
Section 3 hereof; and (2) any amounts payable by the Rumford Facility Lessee
shall be applied first to the Rumford Notes in accordance with Section 2.7
hereof and otherwise in accordance with Section 3 hereof.
(f) If the Owner Lessor elects to redeem Notes, or Notes are otherwise
required to be redeemed pursuant to this Section 2.10, the Owner Lessor shall
notify the Indenture Trustee in writing of the Redemption Date, the Section of
this Indenture pursuant to which the redemption will occur. The Owner Lessor
shall give each notice to the Indenture Trustee provided for in this Section
2.10 at least 30 days before the Redemption Date unless the Indenture Trustee
consents in writing to a shorter period. Such notice shall be accompanied by an
Officers' Certificate and an opinion of counsel from the Facility Lessees to the
effect that such redemption will comply with the conditions herein.
(g) At least 20 days but not more than 60 days before a Redemption Date,
the Indenture Trustee shall deliver notification of such redemption by
first-class mail to each Holder of Notes to be redeemed at such Holder's
registered address; provided, that no notice shall be required so long as the
Pass Through Trustee and the Indenture Trustee are the same entity. Each such
notice shall state:
(i) the Redemption Date;
(ii) the redemption price;
(iii) (the name and address of the Paying Agent;
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(iv) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(v) that, unless the Owner Lessor defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date; and
(vi) the paragraph of this Indenture pursuant to which the
Notes called for redemption are being redeemed.
(h) [Intentionally omitted.]
(i) Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price stated in the notice, plus accrued interest to the Redemption
Date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
Section 2.11. Payment of Expenses on Transfer. Upon the issuance of a
new Note or Notes pursuant to Section 2.8 or 2.9 hereof, the Owner Lessor or the
Indenture Trustee may require from the party requesting such new Note or Notes
payment of a sum to reimburse the Owner Lessor and the Indenture Trustee for, or
to provide funds for, the payment of any tax or other governmental charge in
connection therewith or any charges and expenses connected with such tax or
governmental charge paid or payable by the Owner Lessor or the Indenture
Trustee.
Section 2.12. Additional Lessor Notes.
(a) Additional Notes (each, an "Additional Lessor Note") of the Owner
Lessor may be issued under and secured by this Indenture, at any time or from
time to time, in addition to the Lessor Note and subject to the conditions
hereinafter provided in this Section 2.12, for cash in the amount equal to the
original principal amount of such Additional Lessor Notes, for the purpose of
(i) providing funds in connection with Supplemental Financing pursuant to
Section 11.1 of the Participation Agreement for the payment of all or any
portion of Modifications to the Facilities pursuant to Section 8 of the Facility
Leases, or (ii) redeeming any previously issued Notes pursuant to an optional
refinancing pursuant to Section 11.2 of the Participation Agreement and
providing funds for the payment of all reasonable costs and expenses in
connection therewith.
(b) Before any Additional Lessor Notes shall be issued under the
provisions of this Section 2.12, the Owner Lessor shall have delivered to the
Indenture Trustee, not less than fifteen (15) (unless a shorter period shall be
satisfactory to the Indenture Trustee) days nor more than thirty (30) days prior
to the proposed date of issuance of any Additional Lessor Notes, a request and
authorization to issue such Additional Lessor Notes, which request and
authorization shall include the amount of such Additional Lessor Notes, the
proposed date of issuance thereof and (except in connection with a refinancing
of all of the Notes pursuant to Section 11.2 of the Participation Agreement) a
certification that the terms thereof are not inconsistent with this Indenture.
Additional Lessor Notes shall have a designation so as to distinguish such
Additional Lessor Notes from the Notes theretofore issued, but otherwise shall
rank pari passu with any Notes outstanding upon issuance of the Additional
Notes, be entitled to the same benefits and
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security of this Indenture as any other such Notes then outstanding, be dated
the date of original issuance of such Additional Lessor Notes, bear interest at
such rates as shall be agreed between the Facility Lessees and the Owner Lessor
and indicated in the aforementioned request and authorization, and shall be
stated to be payable by their terms not later than the final maturity date of
the Lessor Notes issued on the Closing Date.
(c) The terms, conditions and designations of such Additional Lessor
Notes (which shall be consistent with this Indenture, except in the case of a
refinancing of all of the Notes pursuant to Section 11.2 of the Participation
Agreement) shall be set forth in an indenture supplemental to this Indenture
executed by the Owner Lessor and the Indenture Trustee. Such Additional Lessor
Notes shall be executed as provided in Section 2.3 hereof and deposited with the
Indenture Trustee for authentication, but before such Additional Lessor Notes
shall be authenticated and delivered by the Indenture Trustee there shall be
filed with the Indenture Trustee the following, all of which shall be dated as
of the date of the supplemental indenture:
(i) a copy of such supplemental indenture (which shall include the
form of such Additional Lessor Notes and the certificate of
authentication in respect thereof);
(ii) an Officer's Certificate from the applicable Facility Lessee
(1) stating that no Significant Lease Default or Lease Event of Default
has occurred and is continuing under its respective Facility Lease, (2)
stating that the conditions in respect of the issuance of such
Additional Lessor Notes contained in this Section 2.12 have been
satisfied, (3) specifying the amount of the costs and expenses relating
to the issuance and sale of such Additional Lessor Notes, and (4)
stating that payments pursuant to the applicable Facility Lease and all
supplements thereto of Periodic Rent and Termination Value, together
with all other amounts payable pursuant to the terms of the Facility
Leases, are calculated to be sufficient to pay when due all of the
principal of and interest on the outstanding Notes, after taking into
account the issuance of such Additional Lessor Notes and any related
redemption of Notes theretofore outstanding;
(iii) with respect to any Supplemental Financing, an Officer's
Certificate from the Owner Lessor stating that no Indenture Default
under clauses (b) through (f) of Section 4.2 hereof or Lease Indenture
Event of Default as to the Owner Lessor has occurred and is continuing;
(iv) such additional documents, certificates and opinions as shall
be reasonably required by the Indenture Trustee, and as shall be
reasonably acceptable to the Indenture Trustee;
(v) a request and authorization to the Indenture Trustee by the
Owner Lessor to authenticate and deliver such Additional Lessor Notes to
or upon the order of the Person or Persons noted in such request at the
address set forth therein, and in such principal amounts as are stated
therein, upon payment to the Indenture Trustee, but for the account of
the Owner Lessor, of the sum or sums specified in such request and
authorization;
(vi) the consent of the applicable Facility Lessee to such
request and authorization; and
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(vii) an Opinion of Counsel as to the authorization, validity and
enforceability of the Additional Lessor Notes and that all conditions
hereunder to the authentication and delivery of such Additional Lessor
Notes have been complied with.
(d) When the documents referred to in the foregoing clauses (i) through
(vii) above shall have been filed with the Indenture Trustee and when the
Additional Lessor Notes described in the above mentioned request and
authorization shall have been executed and authenticated as required by this
Indenture and the related supplemental indenture, the Indenture Trustee shall
deliver such Additional Lessor Notes in the manner described in clause (v)
above, but only upon payment to the Indenture Trustee of the sum or sums
specified in such request and authorization.
(e) This Indenture is an open-end mortgage which secures existing
indebtedness, "future advances", "protective advances" and "contingent
obligations" as such terms are defined in 33 M.R.S.A. Section 505. The maximum
principal indebtedness secured by this Indenture, including future advances and
contingent obligations but excluding protective advances, shall not at any time
exceed the total amount of Seven Hundred Fifty Million Dollars ($750,000,000);
provided, however, that nothing herein contained shall limit the amount secured
by this Indenture if the Secured Indebtedness is increased by protective
advances; and provided, further, such limitation as to such future advances and
contingent obligations shall only pertain to the record priority of the amount
thereof secured hereby pursuant to 33 M.R.S.A. Section 505 and does not
otherwise limit the amount of total indebtedness of Owner Lessor secured hereby
or limit the liability of Owner Lessor to Indenture Trustee for such total
indebtedness, including future advances and contingent obligations. The future
advances secured hereby shall be made to or for the account of Owner Lessor and
may be made under the Additional Lessor Notes, or pursuant to promissory notes
or other instruments evidencing such future advances which may be hereafter
executed and delivered by Owner Lessor to Indenture Trustee. In the event that
any notice described in subsections 5(A) or 5(B) of 33 M.R.S.A. Section 505 is
recorded or is received by Indenture Trustee, any commitment, agreement, or
obligation to make future advances to or for the benefit of Owner Lessor shall
immediately terminate.
(f) This Indenture permits and secures any and all current and future
advances made to or for the account of the Owner Lessor and may be made under
the Notes or the Additional Lessor Notes or other documents evidencing the
Secured Indebtedness, as may be signed by the Owner Lessor and such other
agreement(s) as may be entered into by and with the Indenture Trustee and signed
by the Owner Lessor. The unpaid principal balance of the indebtedness
outstanding under this Indenture shall at no time exceed Seven Hundred Fifty
Million Dollars ($750,000,000). The Indenture Trustee will accept notices
pursuant to Section 34-25-10(b) and 34-25-11 of the General Laws of the State of
Rhode Island at the address specified in Section 9.5 of this Indenture.
Section 2.13. Restrictions of Transfer Resulting from Federal Securities
Laws; Legend. Each Note shall be delivered to the initial Noteholder thereof
without registration of such Note under the Securities Act and without
qualification of this Indenture under the Trust Indenture Act of 1939, as
amended. Prior to any transfer of any such Note, in whole or in part, to any
Person, the Noteholder thereof shall furnish to the applicable Facility Lessee,
the Indenture Trustee and the Owner Lessor an opinion of counsel, which opinion
and which counsel shall be reasonably satisfactory to the Indenture Trustee, the
Owner Lessor and the applicable Facility Lessee, to the
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effect that such transfer will not violate the registration provisions of the
Securities Act or require qualification of this Indenture under the Trust
Indenture Act of 1939, as amended, and all Notes issued hereunder shall be
endorsed with a legend which shall read substantially as follows:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH
ACT.
Section 2.14. Security for and Parity of Notes. All Notes issued and
outstanding hereunder shall rank on a parity with each other and shall as to
each other be secured equally and ratably by this Indenture, without preference,
priority or distinction of any thereof over any other by reason of difference in
time of issuance or otherwise.
Section 2.15. Acceptance of the Indenture Trustee. Each Noteholder, by
its acceptance of a Note, shall be deemed to have consented to the appointment
of the Indenture Trustee.
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE
Section 3.1. Distribution of Periodic Rent.
(a) Periodic Rent Distribution. Except as otherwise provided in Section
3.2, 3.3 or 3.7 of this Indenture, each installment of Periodic Rent and any
payment of Supplemental Rent constituting interest on overdue installments of
Periodic Rent received by the Indenture Trustee shall be distributed by the
Indenture Trustee in the following order of priority:
First, so much of such amounts as shall be required to pay in full the
aggregate principal and accrued interest (as well as any interest on
overdue principal and, to the extent permitted by Applicable Law, on
overdue interest) then due and payable under the Notes shall be
distributed to the Noteholders ratably, without priority of any
Noteholder over any other Noteholder, in the proportion that the amount
of such payment then due and payable under each such Note bears to the
aggregate amount of the payments then due and payable under all such
Notes; and
Second, the balance, if any, of such amounts remaining shall be
distributed to the Owner Lessor for distribution by it in accordance
with the terms of the LLC Agreement.
(b) Application of Other Amounts Held by the Indenture Trustee upon Rent
Default. If, as a result of any failure by either of the Facility Lessees to pay
Periodic Rent in full on any date when an installment of Periodic Rent is due,
there shall not have been distributed on any date (or within any applicable
period of grace) pursuant to Section 3.1(a) hereof the full amount then
distributable pursuant to clause "First" of Section 3.1(a) of this Indenture,
the Indenture Trustee shall distribute other payments of the character referred
to in Sections 3.5 and 3.6 hereof then held by it, or thereafter received by it,
to all Noteholders to the extent necessary to enable it to make all the
distributions then due pursuant to such clause "First." To the extent the
Indenture Trustee thereafter receives the deficiency in Periodic Rent, the
amount so received shall, unless a Significant Lease Default or Lease Indenture
Event of Default shall have occurred and be continuing, be applied to restore
the amounts held by the Indenture Trustee under Section 3.5 or
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3.6 hereof and distributed pursuant to this Section 3.1(b), as the case may be.
The portion of each such payment made to the Indenture Trustee which is to be
distributed by the Indenture Trustee in payment of Notes shall be applied in
accordance with Section 2.7 hereof. Any payment received by the Indenture
Trustee pursuant to Section 4.3 hereof as a result of payment by the Owner
Lessor of principal or interest or both (as well as any interest on overdue
principal and, to the extent permitted by Applicable Law, on overdue interest)
then due on all Notes shall be distributed to the Noteholders, ratably, without
priority of one over the other, in the proportion that the amount of such
payment or payments then due and unpaid on all Notes held by each such
Noteholder bears to the aggregate amount of the payments then due and unpaid on
all Notes outstanding; and the Owner Lessor shall (to the extent of such payment
made by it) be subrogated to the rights of the Noteholders under this Section
3.1 to receive the payment of Periodic Rent or Supplemental Rent with respect to
which its payment under Sections 4.3(a) and (b) hereof relates, and the payment
of interest on account of such Periodic Rent or Supplemental Rent being overdue,
to the extent provided in and subject to the provisions of Section 4.3(a) and
(b) hereof.
(c) Retention of Amounts by the Indenture Trustee. If at the time of
receipt by the Indenture Trustee of an installment of Periodic Rent (whether or
not then overdue) or of payment of interest on any overdue installment of
Periodic Rent, there shall have occurred and be continuing a Lease Indenture
Event of Default, the Indenture Trustee shall retain such installment of
Periodic Rent or payment of interest (to the extent not then required to be
distributed pursuant to clause "First" of Section 3.1(a)) as part of the
Indenture Estate and shall not distribute any such payment of Periodic Rent or
interest pursuant to clause "Second" of Section 3.1(a) until such time as the
Indenture Trustee shall have received notice that there shall not be continuing
any such Lease Indenture Event of Default or until such time as the Indenture
Trustee shall have received written instructions from a Majority in Interest of
Noteholders to make such a distribution; provided that such amounts must be
returned to the Owner Lessor within six (6) months from the receipt thereof by
the Indenture Trustee unless (i) the Indenture Trustee has declared the unpaid
principal of all Notes due and payable (or such amounts shall have automatically
become due and payable), pursuant to Section 4.2(a) and the Indenture Trustee is
diligently pursuing any dispossessary remedies available under Section 4.3
hereof (unless such remedies are stayed or prevented by operation of law) or
(ii) any other Lease Indenture Event of Default shall have occurred during the
intervening period and be continuing, in which case, such six-month period will
be restarted from the date such other Lease Indenture Event of Default shall
have occurred. Upon the cure or waiver of such Lease Indenture Event of Default,
withheld Periodic Rent shall, subject to clause (ii) of the immediately
preceding sentence, be distributed to the Owner Lessor (to the extent that all
payments to be distributed pursuant to clause "First" of Section 3.1(a) have
been made), and no further withholding of Periodic Rent on account of such Lease
Indenture Event of Default shall be effected.
Section 3.2. Payments Following Event of Loss or Other Early
Termination.
(a) Any payment received by the Indenture Trustee as a result of (x) an
Event of Loss (other than a Regulatory Event of Loss in respect of which the
Facility Lessees shall, pursuant to Section 2.10(b) hereof, assume the
obligations and liabilities of the Owner Lessor hereunder, in which event only
clauses "First" and "Fourth" below shall be applicable), (y) early terminations
of either of the Facility Leases pursuant to Section 13 thereof (other than a
termination in respect
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of which either of the Facility Lessees shall, pursuant to Section 2.10(b)
hereof assume the obligations and liabilities of the Owner Lessor hereunder, in
which event only clauses "First" and "Fourth" below shall be applicable), or (z)
any early terminations of the Facility Leases, in whole or in part, pursuant to
Section 14 thereof, shall be distributed on the applicable Redemption Date to
the extent of available funds, in the following order of priority:
First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services
under this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payment remaining as shall be required to pay in
full the applicable redemption price (as described in Section 2.10(a) or
2.10(d) hereof or any supplemental indenture hereto) (including,
interest on overdue principal and, to the extent permitted by Applicable
Law, overdue interest) upon all of the Notes which shall be distributed
to the holders of such Notes, in each case ratably, without priority of
any Noteholder over any other, in the proportion that the aggregate
unpaid principal amount of all such Notes held by each such holder, plus
the Make-Whole Amount, if any, and accrued but unpaid interest thereon
to the scheduled date of distribution to the Noteholders bears to the
aggregate unpaid principal amount of all such Notes held by all such
holders, together with the Make-Whole Amount, if any, plus accrued but
unpaid interest thereon to the date of scheduled distribution;
Third, so much of such payments and amounts as shall be required to pay
the then existing or prior Noteholders all other amounts then payable
and unpaid to them as holders of the Notes which this Indenture by its
terms secures shall be distributed to such existing or prior holders of
Notes, ratably to each such holder, without priority of any such holder
over any other, in the proportion that the amount of such payments or
amounts to which each such holder is so entitled bears to the aggregate
amount of such payments and amounts to which all such holders are so
entitled; and
Fourth, the balance, if any, of such payment remaining shall be
distributed to the Owner Lessor for distribution in accordance with the
LLC Agreement.
Section 3.3. Payments After Lease Indenture Event of Default. All
payments received and all amounts held or realized by the Indenture Trustee
after a Lease Indenture Event of Default shall have occurred and be continuing
(including any amounts realized by the Indenture Trustee from the exercise of
any remedies pursuant to Section 17 of the Facility Lease or from the
application of Section 4.3 hereof) and after either (a) the Indenture Trustee
has declared a Facility Lease to be in default pursuant to Section 17 thereof or
(b) the Lessor Note shall have been declared or shall automatically have become
due and payable, together with all payments or amounts then held or thereafter
received by the Indenture Trustee hereunder, shall, so long as such declaration
shall not have been rescinded, be distributed forthwith by the Indenture Trustee
in the following order of priority:
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First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services
under this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payment remaining as shall be required to pay
the aggregate unpaid principal amount of all Notes then outstanding and
all accrued but unpaid interest on such Notes to the date of such
distribution (including interest on overdue principal and, to the extent
permitted by Applicable Law, overdue interest) shall be distributed to
the holders of such Notes, in each case ratably without priority of any
Noteholder over any other, in the proportion that the aggregate unpaid
principal amount of all such Notes held by each such holder and accrued
but unpaid interest thereon to the scheduled date of distribution to the
Noteholders bears to the aggregate unpaid principal amount of all such
Notes held by all such holders and accrued but unpaid interest thereon
to the date of scheduled distribution to the Noteholders;
Third, so much of such payments and amounts as shall be required to pay
the then existing or prior Noteholders all other amounts then payable
and unpaid to them as holders of the Notes which this Indenture by its
terms secures, including the Make-Whole Amount, if any, required to be
paid pursuant to Section 2.10(a)(v) hereof, in respect of such Notes
required to be paid pursuant to Section 4.3(a) hereof, shall be
distributed to such existing or prior holders of Notes, ratably to each
such holder, without priority of any such holder over any other, in the
proportion that the amount of such payments or amounts to which each
such holder is so entitled bears to the aggregate amount of such
payments and amounts to which all such holders are so entitled; and
Fourth, the balance, if any, of such payments and amounts remaining
shall be distributed to the Owner Lessor for distribution by it in
accordance with the terms of the LLC Agreement.
Section 3.4. Investment of Certain Payments Held by the Indenture
Trustee. Upon the written direction and at the risk and expense of the Owner
Lessor, the Indenture Trustee shall invest and reinvest any moneys held by the
Indenture Trustee pursuant to Section 3.1(c), 3.5 or 3.6 hereof in such
Permitted Investments as may be specified in such direction. The proceeds
received upon the sale or at maturity of any Permitted Investment and any
interest received on such Permitted Investment and any payment in respect of a
deficiency contemplated by the following sentence shall be held as part of the
Indenture Estate and applied by the Indenture Trustee in the same manner as the
moneys used to buy such Permitted Investment, and any Permitted Investment may
be sold (without regard to maturity date) by the Indenture Trustee whenever
necessary to make any payment or distribution required by this Section 3. If the
proceeds received upon the sale or at maturity of any Permitted Investment
(including interest received on such Permitted Investment) shall be less than
the cost thereof (including accrued interest), the Owner Lessor will pay or
cause to be paid to the Indenture Trustee an amount equal to such deficiency.
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Section 3.5. Application of Certain Other Payments. Except as otherwise
provided in Section 3.1(b) or 3.1(c) hereof, any payment received by the
Indenture Trustee for which provision as to the application thereof is made in
an Operative Document, but not elsewhere in this Indenture (including payments
received by the Indenture Trustee under the Calpine Guaranties), shall, unless a
Lease Indenture Event of Default shall have occurred and be continuing, be
applied forthwith to the purpose for which such payment was made in accordance
with the terms of such Operative Document. If at the time of the receipt by the
Indenture Trustee of any payment referred to in the preceding sentence there
shall have occurred and be continuing a Lease Indenture Event of Default, the
Indenture Trustee shall hold such payment as part of the Indenture Estate, but
the Indenture Trustee shall, except as otherwise provided in Section 3.1(b) or
3.1(c) hereof, cease to hold such payment and shall apply such payment to the
purpose for which it was made in accordance with the terms of such Operative
Document if and whenever there is no longer continuing any Lease Indenture Event
of Default; provided, however, that any such payment received by the Indenture
Trustee which is payable to the Facility Lessees shall not be held by the
Indenture Trustee unless a Significant Lease Default or Lease Event of Default
shall have occurred and be continuing.
Section 3.6. Other Payments. Except as otherwise provided in Section 3.5
hereof:
(a) any payment received by the Indenture Trustee for which no provision
as to the application thereof is made in the Participation Agreement, the
Facility Lease or elsewhere in this Section 3; and
(b) all payments received and amounts realized by the Indenture Trustee
with respect to the Indenture Estate (including all amounts realized after the
termination of the Facility Lease), to the extent received or realized at any
time after payment in full of the principal of and, Make-Whole Amount, if any,
and interest on all Notes then outstanding and all other amounts due the
Indenture Trustee or the Noteholders, as well as any other amounts remaining as
part of the Indenture Estate after such payment in full of the principal of,
Make-Whole Amount, if any, and interest on all Notes outstanding;
(c) shall be distributed forthwith by the Indenture Trustee in the order
of priority set forth in Section 3.3 hereof, omitting clause "Second" thereof.
Section 3.7. Excepted Payments. Notwithstanding any other provision of
this Indenture including this Section 3 or any provision of any of the Operative
Documents to the contrary, any Excepted Payments received or held by the
Indenture Trustee at any time shall promptly be paid or distributed by the
Indenture Trustee to the Person or Persons entitled thereto.
Section 3.8. Distributions to the Owner Lessor. Unless otherwise
directed in writing by the Owner Lessor, all amounts from time to time
distributable by the Indenture Trustee to the Owner Lessor in accordance with
the provisions hereof shall be paid by the Indenture Trustee in immediately
available funds to the Owner Participant's Account. Any amounts payable to the
Trust Company in its individual capacity shall be paid to the Trust Company.
Section 3.9. Payments Under Assigned Documents. Notwithstanding anything
to the contrary contained in this Indenture, until the discharge and
satisfaction of the Lien of this
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Indenture, all payments due or to become due under any Assigned Document to the
Owner Lessor (except so much of such payments as constitute Excepted Payments)
shall be made directly to the Indenture Trustee's Account and the Owner Lessor
shall give all notices as shall be required under the Assigned Documents to
direct payment of all such amounts to the Indenture Trustee hereunder. The Owner
Lessor agrees that if it should receive any such payments directed to be made to
the Indenture Trustee or any proceeds for or with respect to the Indenture
Estate or as the result of the sale or other disposition thereof or otherwise
constituting a part of the Indenture Estate to which the Owner Lessor is not
entitled hereunder, it will promptly forward such payments to the Indenture
Trustee or in accordance with the Indenture Trustee's instructions. The
Indenture Trustee agrees to apply payments from time to time received by it
(from the Facility Lessee, the Owner Lessor or otherwise) with respect to the
Facility Leases, any other Assigned Document or the Facilities in the manner
provided in Section 2.7 hereof, and this Section 3.
Section 3.10. Disbursement of Amounts Received by the Indenture Trustee.
Subject to the last sentence of this Section 3.10 and Section 3.2, amounts to be
distributed by the Indenture Trustee pursuant to this Section 3 shall be
distributed on the date such amounts are actually received by the Indenture
Trustee. Notwithstanding anything to the contrary contained in this Section 3,
in the event the Indenture Trustee shall be required or directed to make a
payment under this Section 3 on the same date on which such payment is received,
any amounts received by the Indenture Trustee after 12:00 noon, New York City
time, or on a day other than a Business Day, may be distributed on the next
succeeding Business Day.
SECTION 4. COVENANTS OF OWNER LESSOR; DEFAULTS; REMEDIES OF INDENTURE TRUSTEE
Section 4.1. Covenants of Owner Lessor. The Owner Lessor hereby
covenants and agrees as follows:
(a) the Owner Lessor will duly and punctually pay the principal of,
Make-Whole Amount, if any, and interest on and other amounts due under the Notes
and hereunder in accordance with the terms of the Notes and this Indenture and
all amounts payable by it to the Noteholders under the Participation Agreement;
and
(b) the Owner Lessor will not, except as provided in this Indenture
(including Sections 4.4, 5.6, 8.1 and 8.2) and except as to Excepted Payments
(i) enter into any agreement amending, modifying or supplementing any of the
Assigned Documents, or exercise any election or option, or make any decision or
determination, or give any notice, consent, waiver or approval, or take any
other action, under or in respect of any Assigned Document, (ii) accept and
retain any payment from, or settle or compromise any claim arising under, any of
the Assigned Documents, except that it may forward any payment to the Indenture
Trustee in accordance with Section 3.9, (iii) give any notice or exercise any
right or take any action under any of the Assigned Documents, or (iv) submit or
consent to the submission of any dispute, difference or other matter arising
under or in respect of any of the Assigned Documents to arbitration thereunder.
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Section 4.2. Occurrence of Lease Indenture Event of Default. Subject to
Section 4.4 hereof, the term "Lease Indenture Event of Default," wherever used
herein, shall mean any of the following events (whatever the reason for such
Lease Indenture Event of Default and whether it shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) any Lease Event of Default (other than the failure of a Facility
Lessee to pay any amount which shall constitute an Excepted Payment and
other than a Lease Event of Default in consequence of a Facility Lessee's
failure to maintain the insurance required by Section 11 of the Facility
Leases if, and so long as, (i) such Lease Event of Default is waived by the
Owner Lessor and the Owner Participant and (ii) the insurance maintained by
each of the Facility Lessees still constitutes Prudent Industry Practice);
or
(b) the Owner Lessor shall fail (other than as a result of a Lease Event
of Default) to make any payment in respect of the principal of, or
Make-Whole Amount, if any, or interest on, the Notes within five Business
Days after the same shall have become due; or
(c) the Owner Lessor shall fail to perform or observe any material
covenant, obligation or agreement to be performed or observed by it under
this Indenture (other than any covenant, obligation or agreement contained
in clause (b) of this Section 4.2), the Owner Lessor shall fail to perform
or observe any material covenant, obligation or agreement to be performed by
it under Section 6 of the Participation Agreement, the Owner Participant
shall fail to perform or observe any material covenant, obligation or
agreement to be performed by it under Section 7 of the Participation
Agreement, or the OP Guarantor shall fail to perform or observe any material
covenant, obligation or agreement to be performed by it under the OP
Guaranty in each case, in any material respect, which failure shall continue
unremedied for 30 days after receipt by such party of written notice
thereof; provided, however, that if such condition cannot be remedied within
such 30-day period, then the period within which to remedy such condition
shall be extended up to 180 days, so long as such party diligently pursues
such remedy and such condition is reasonably capable of being remedied
within such extended period;
(d) any representation or warranty made by the Owner Lessor in Section
3.2 of the Participation Agreement or in the certificate delivered by the
Owner Lessor at the Closing pursuant to Section 4.6 of the Participation
Agreement or any representation or warranty made by the Owner Participant in
Section 3.4 of the Participation Agreement (other than Section 3.4(i)) or
the certificate delivered by the Owner Participant at the Closing pursuant
to Section 4.6 of the Participation Agreement, or any representation or
warranty made by the OP Guarantor (provided the OP Guaranty shall not have
been terminated or released) under the OP Guaranty or in the certificate
delivered by such OP Guarantor at the Closing pursuant to Section 4.6 of the
Participation Agreement, shall prove to have been incorrect in any material
respect when made and continues to be material and unremedied for a period
of 30 days after receipt by such party of written notice thereof; provided,
however, that if such condition cannot be remedied within such 30-day
period, then the period within which to remedy such condition shall be
extended up to an additional 120 days, so long as such party
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diligently pursues such remedy and such condition is reasonably capable of
being remedied within such extended period;
(e) the Owner Participant, the Owner Lessor or the OP Guarantor
(provided the OP Guaranty shall not have been terminated or released) shall
(i) commence a voluntary case or other proceeding seeking relief under Title
11 of the Bankruptcy Code or liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or apply for or consent to the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or (ii) consent to,
or fail to controvert in a timely manner, any such relief or the appointment
of or taking possession by any such official in any voluntary case or other
proceeding commenced against it, or (iii) file an answer admitting the
material allegations of a petition filed against it in any such proceeding;
or
(f) an involuntary case or other proceeding shall be commenced against
the Owner Participant, the Owner Lessor or the OP Guarantor (provided the OP
Guaranty shall not have been terminated or released) seeking (i)
liquidation, reorganization or other relief with respect to it or its debts
under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other
similar law now or hereafter in effect, or (ii) the appointment of a
trustee, receiver, liquidator, custodian or other similar official with
respect to it or any substantial part of its property or (iii) the
winding-up or liquidation of the Owner Lessor; and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60
days.
Section 4.3. Remedies of the Indenture Trustee.
(a) In the event that a Lease Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee in its discretion may, or upon
receipt of written instructions from a Majority in Interest of Noteholders shall
declare, by written notice to the Owner Lessor and the Owner Participant, the
unpaid principal amount of all Notes, with accrued interest thereon, to be
immediately due and payable, upon which declaration such principal amount and
such accrued interest shall immediately become due and payable (except in the
case of a Lease Indenture Event of Default under Section 4.2(e) or (f), such
principal and interest shall automatically become due and payable immediately
without any such declaration or notice) without further act or notice of any
kind. If any Make-Whole amount is due and payable pursuant to Section 2.10(d)
(iii) or (iv) at the time of any such acceleration, such Make-Whole Amount shall
also be due and payable in connection with such acceleration.
(b) If a Lease Indenture Event of Default shall have occurred and be
continuing, then and in every such case, the Indenture Trustee, as assignee
under the Facility Leases or hereunder or otherwise, may, and where required
pursuant to the provisions of Section 5 hereof shall, upon written notice to the
Owner Lessor, exercise any or all of the rights and powers and pursue any or all
of the remedies pursuant to this Section 4 and, in the event such Lease
Indenture Event of Default shall be a Lease Event of Default, any and all of the
remedies provided pursuant to this Section 4 and Section 17 of the Facility
Leases and, subject to Section 4.4, may take possession of all or any part of
the Indenture Estate and may exclude therefrom the Owner Participant, the Owner
Lessor and, in the event such Lease Indenture Event of Default shall be a Lease
Event of Default, the Facility Lessees and all persons claiming under them, and
may exercise all remedies
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available to a secured party under the Uniform Commercial Code or any other
provision of Applicable Law. The Indenture Trustee may proceed to enforce the
rights of the Indenture Trustee and of the Noteholders by directing payment to
it of all moneys payable under any agreement or undertaking constituting a part
of the Indenture Estate, by proceedings in any court of competent jurisdiction
to recover damages for the breach hereof or for the appointment of a receiver or
for sale of all or any part of the Facilities or for foreclosure of the
Facilities, together with the Owner Lessor's interest in the Assigned Documents,
and by any other action, suit, remedy or proceeding authorized or permitted by
this Indenture, at law or in equity, or whether for the specific performance of
any agreement contained herein, or for an injunction against the violation of
any of the terms hereof, or in aid of the exercise of any power granted hereby
or by law, and in addition may foreclose upon, sell, assign, transfer and
deliver, from time to time to the extent permitted by Applicable Law, all or any
part of the Indenture Estate or any interest therein, at any private sale or
public auction with or without demand, advertisement or notice (except as herein
required or as may be required by law) of the date, time and place of sale and
any adjournment thereof, for cash or credit or other property, for immediate or
future delivery and for such price or prices and on such terms as the Indenture
Trustee, in its unfettered discretion, may determine, or as may be required by
law, so long as the Owner Participant and the Owner Lessor are afforded a
commercially reasonable opportunity to bid for all or such part of the Indenture
Estate in connection therewith unless Section 4.7 shall otherwise be applicable;
provided that 20 days shall be deemed to be a commercially reasonable
opportunity to bid for purposes of this Section 4.3(b). The Indenture Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture Trustee and of the
Noteholders asserted or upheld in any bankruptcy, receivership or other judicial
proceedings.
(c) To the fullest extent permitted by Applicable Law, all rights of
action and rights to assert claims under this Indenture or under any of the
Notes may be enforced by the Indenture Trustee without the possession of the
Notes at any trial or other proceedings instituted by the Indenture Trustee, and
any such trial or other proceedings shall be brought in its own name as
mortgagee of an express trust, and any recovery or judgment shall be for the
ratable benefit of the Noteholders as herein provided. In any proceedings
brought by the Indenture Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture), the Indenture Trustee shall
be held to represent all the Noteholders, and it shall not be necessary to make
any such Persons parties to such proceedings.
(d) Anything herein to the contrary notwithstanding, neither the
Indenture Trustee nor any Noteholder shall at any time, including at any time
when a Lease Indenture Event of Default shall have occurred and be continuing
and there shall have occurred and be continuing a Lease Event of Default, be
entitled to exercise any remedy under or in respect of this Indenture which
could or would divest the Owner Lessor of title to, or its ownership interest
in, any portion of the Indenture Estate unless, in the case of a Lease Indenture
Event of Default as a consequence of a Lease Event of Default under Section 16
of the Facility Lease, the Indenture Trustee shall have, to the extent it is
then entitled to do so hereunder and is not then stayed or otherwise prevented
from doing so by operation of law, commenced the exercise of one or more
remedies under both Facility Leases intending to dispossess the Facility Lessees
of the Facilities and is using good faith efforts in the exercise of such
remedies (and not merely asserting a right or claim to do so); provided that
during any period that the Indenture Trustee is stayed or otherwise prevented by
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operation of law from exercising such remedies with respect to either Facility,
the Indenture Trustee will not divest the Owner Lessor of title to any portion
of the Indenture Estate until the earlier of (a) the expiration of the 180-day
period following the date of commencement of a stay or other prevention with
respect to the first such affected Facility (regardless of whether a prevention
or stay subsequently affects the other Facility during such 180-day period) or
(b) the date of repossession of both Facilities under the applicable Facility
Leases.
(e) Anything herein to the contrary notwithstanding, in the case of a
Lease Indenture Event of Default as a consequence of a Lease Event of Default
under Section 16(a) of the Facility Leases with respect to the Equity Portion of
Periodic Rent only, the Indenture Trustee shall not, so long as no other Lease
Indenture Event of Default shall have occurred and be continuing, be entitled to
exercise remedies under this Indenture for a period of 180 days unless the Owner
Lessor or the Owner Participant consents to the declaration of a Lease Event of
Default by the Indenture Trustee.
(f) Any provisions of the Facility Leases or this Indenture to the
contrary notwithstanding, if the Facility Lessees shall fail to pay any Excepted
Payment to any Person entitled thereto as and when due, such Person shall have
the right at all times, to the exclusion of the Indenture Trustee, to demand,
collect, ▇▇▇ for, enforce performance of obligations relating to, or otherwise
obtain all amounts due in respect of such Excepted Payment or to declare a Lease
Event of Default under Section 16 of the Facility Leases solely to enforce such
obligations in respect of any Excepted Payments (provided that any such
declaration shall not be deemed to constitute a Lease Indenture Event of Default
hereunder without the consent of the Indenture Trustee).
Section 4.4. Right to Cure Certain Lease Events of Default.
(a) If either of the Facility Lessees shall fail to make any payment of
Periodic Rent due on any Rent Payment Date when the same shall have become due,
and if such failure of such Facility Lessee to make such payment of Periodic
Rent shall not constitute the fourth consecutive such failure or the eighth
cumulative failure of the Facility Lessee, then the Owner Lessor may (but need
not) pay to the Indenture Trustee, at any time prior to the expiration of ten
(10) Business Days after the Owner Lessor and the Owner Participant shall have
received notice from the Indenture Trustee or have Actual Knowledge of the
failure of the Facility Lessee to make such payment of Periodic Rent, an amount
equal to the principal of, Make-Whole Amount, if any, and interest on the Notes,
then due (otherwise than by declaration of acceleration) on such Rent Payment
Date, together with any interest due thereon on account of the delayed payment
thereof, and such payment by the Owner Lessor shall be deemed (for purposes of
this Indenture) to have cured any Lease Indenture Event of Default which arose
or would have arisen from such failure of such Facility Lessee.
(b) If either of the Facility Lessees shall fail to make any payment of
Supplemental Rent when the same shall become due or otherwise fail to perform
any obligation under the Facility Leases or any other Operative Document, then
the Owner Lessor may (but need not) make such payment on the date such
Supplemental Rent was payable, together with any interest due thereon on account
of the delayed payment thereof, or perform such obligation at any time prior to
the expiration of ten (10) Business Days after the Owner Lessor or the Owner
Participant
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shall have received notice or have Actual Knowledge of the occurrence of such
failure, and such payment or performance by the Owner Lessor shall be deemed to
have cured any Lease Indenture Event of Default which arose or would have arisen
from such failure of the Facility Lessee.
(c) The Owner Lessor, upon exercising its rights under paragraph (a) or
(b) of this Section 4.4 to cure either of the Facility Lessee's failure to pay
Periodic Rent or Supplemental Rent or to perform any other obligation under the
Facility Leases or any other Operative Document, shall not obtain any Lien on
any part of the Indenture Estate on account of such payment or performance nor,
except as expressly provided in the next sentence, pursue any claims against a
Facility Lessee or any other party, for the repayment thereof if such claims
would impair the prior right and security interest of the Indenture Trustee in
and to the Indenture Estate. Upon such payment or performance by the Owner
Lessor, the Owner Lessor shall (to the extent of such payment made by it and the
costs and expenses incurred in connection with such payments and performance
thereof together with interest thereon and so long as no event which would, with
the passing of time or giving of notice or both, become a Lease Indenture Event
of Default under Section 4.2(b), (e) or (f), or any Lease Indenture Event of
Default hereunder shall have occurred and be continuing) be subrogated to the
rights of the Indenture Trustee and the Noteholders to receive the payment of
Periodic Rent or Supplemental Rent, as the case may be, with respect to which
the Owner Lessor made such payment and interest on account of such Periodic Rent
Payment or Supplemental Rent payment being overdue in the manner set forth in
the next two sentences. If the Indenture Trustee shall thereafter receive such
payment of Periodic Rent, Supplemental Rent or such interest, the Indenture
Trustee shall, notwithstanding the requirements of Section 3.1 hereof,
forthwith, remit such payment of Periodic Rent or Supplemental Rent, as the case
may be (to the extent of the payment made by the Owner Lessor pursuant to this
Section 4.4) and such interest to the Owner Lessor in reimbursement for the
funds so advanced by it, provided that if (A) any event which, with the passing
of time or giving of notice or both, would become a Lease Indenture Event of
Default under Section 4.2(b), (e) or (f) hereof, or any Lease Indenture Event of
Default hereunder shall have occurred and be continuing or (B) any payment of
principal, interest, or Make-Whole Amount, if any, on any Note then shall be
overdue, such payment shall not be remitted to the Owner Lessor but shall be
held by the Indenture Trustee as security for the obligations secured hereby and
distributed in accordance with Section 3.1 hereof. The Owner Lessor shall not
attempt to recover any amount paid by it on behalf of a Facility Lessee pursuant
to this Section 4.4 except by demanding of a Facility Lessee payment of such
amount or by commencing an action against a Facility Lessee for the payment of
such amount, and except where a Lease Indenture Event of Default (other than a
Lease Event of Default) has occurred and is continuing, the Owner Lessor shall
be entitled to receive the amount of such payment and the costs and expenses
incurred in connection with such payments and performance thereof together with
interest thereon from a Facility Lessee (but neither the Owner Lessor nor the
Owner Participant shall have any right to collect such amounts by exercise of
any of the remedies under Section 17 of the Facility Leases) or, if paid by a
Facility Lessee to the Indenture Trustee, from the Indenture Trustee to the
extent of funds actually received by the Indenture Trustee.
(d) Until the expiration of the period during which the Owner Lessor or
the Owner Participant shall be entitled to exercise rights under paragraph (a)
or (b) of this Section 4.4 with respect to any failure by either of the Facility
Lessees referred to therein, neither the Indenture
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Trustee nor any Noteholder shall take or commence any action it would otherwise
be entitled to take or commence as a result of such failure by a Facility
Lessee, whether under this Section 4 or Section 17 of the Facility Leases or
otherwise.
(e) Each Noteholder agrees, by acceptance thereof, that if (i) (x) a
Lease Indenture Event of Default, which also constitutes a Lease Event of
Default, shall have occurred and be continuing for a period of at least 90 days
without the Notes having been accelerated or the Indenture Trustee having
exercised any remedy under the Facility Leases intended to dispossess the
Facility Lessees of the Facilities, (y) the Notes have been accelerated pursuant
to Section 4.3(a) and such acceleration has not theretofore been rescinded, or
(z) an Enforcement Notice giving notice of the intent of the Indenture Trustee
to foreclose on the Facilities or otherwise dispossess of the Facilities has
been given pursuant to Section 5.1 within the previous 30 days, (ii) no Lease
Indenture Event of Default of the nature described in any of clauses (b) through
(f) of Section 4.2 hereof shall have occurred and be continuing and (iii) the
Owner Lessor shall give written notice to the Indenture Trustee of the Owner
Lessor's intention to purchase all of the Notes in accordance with this
paragraph, then, upon receipt within ten (10) Business Days after such notice
from the Owner Lessor of an amount equal to the sum of (x) the aggregate unpaid
principal amount of any unpaid Notes then held by the Noteholders, together with
accrued but unpaid interest thereon to the date of such receipt (as well as any
interest on overdue principal and, to the extent permitted by Applicable Law,
overdue interest), plus the aggregate amount, if any, of all sums which, if
Section 3.3 were then applicable, such Noteholder would be entitled to be paid
before any payments were to be made to the Owner Lessor but excluding any
Make-Whole Amount, such Noteholder will forthwith (and upon its receipt of the
payment referred to in clause (1) below, will be deemed to) sell, assign,
transfer and convey to the Owner Lessor (without recourse or warranty of any
kind other than of title to the Notes so conveyed) all of the right, title and
interest of such Noteholder in and to the Indenture Estate, this Indenture, all
Notes held by such Noteholder and the Assigned Documents, and the Owner Lessor
shall thereupon assume all such Noteholder's rights and obligations in such
documents; provided, that no such holder shall be required to so convey unless
(1) the Owner Lessor shall have simultaneously tendered payment on all other
Notes issued by the Owner Lessor at the time outstanding pursuant to this
paragraph and (2) such conveyance is not in violation of any Applicable Law. All
charges and expenses required to be paid in connection with the issuance of any
new Note or Notes in connection with this paragraph shall be borne by the Owner
Lessor. Notwithstanding the foregoing, the Owner Trust may exercise the right
set forth in this clause (e) prior to the end of the 90 day period set forth
above but, in such case, the Make-Whole Amount, if any, shall also be payable.
Section 4.5. Rescission of Acceleration. If at any time after the
outstanding principal amount of the Notes shall have become due and payable by
acceleration pursuant to Section 4.3 hereof, (a) all amounts of principal,
Make-Whole Amount, if any, and interest which are then due and payable in
respect of all the Notes other than pursuant to Section 4.3 hereof shall have
been paid in full, together with interest on all such overdue principal and (to
the extent permitted by Applicable Law) overdue interest at the rate or rates
specified in the Notes, and an amount sufficient to cover all costs and expenses
of collection incurred by or on behalf of the holders of the Notes (including
counsel fees and expenses and all expenses and reasonable compensation of the
Indenture Trustee) and (b) every other Lease Indenture Event of Default shall
have been remedied, then a Majority in Interest of Noteholders may, by written
notice or notices to the
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Owner Lessor, the Indenture Trustee and the Facility Lessees, rescind and annul
such acceleration and any related declaration of default under the Facility
Leases and their respective consequences, but no such rescission and annulment
shall extend to or affect any subsequent Lease Indenture Event of Default or
impair any right consequent thereon, and no such rescission and annulment shall
require any Noteholder to repay any principal or interest actually paid as a
result of such acceleration.
Section 4.6. Return of Indenture Estate, Etc.
(a) If at any time the Indenture Trustee has the right to take
possession of the Indenture Estate pursuant to Section 4.3 hereof, at the
request of the Indenture Trustee, the Owner Lessor promptly shall (i) execute
and deliver to the Indenture Trustee such instruments of title and other
documents and (ii) make all such demands and give all such notices as are
permitted by the terms of the Facility Leases to be made or given by the Owner
Lessor upon the occurrence and continuance of a Lease Event of Default, in each
case as the Indenture Trustee may deem necessary or advisable to enable the
Indenture Trustee or an agent or representative designated by the Indenture
Trustee, at such time or times and place or places as the Indenture Trustee may
specify, to obtain possession of all or any part of the Indenture Estate the
possession of which the Indenture Trustee shall at the time be entitled to
hereunder. If the Owner Lessor shall for any reason fail to execute and deliver
such instruments and documents after such request by the Indenture Trustee, the
Indenture Trustee may (i) obtain a judgment conferring on the Indenture Trustee
the right to immediate possession and requiring the Owner Lessor to execute and
deliver such instruments and documents to the Indenture Trustee, to the entry of
which judgment the Owner Lessor hereby specifically consents, and (ii) pursue
all or any part of the Indenture Estate wherever it may be found and enter any
of the premises wherever all or part of the Indenture Estate may be or is
supposed to be and search for all or part of the Indenture Estate and take
possession of and remove all or part of the Indenture Estate.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, as a charge against proceeds of the Indenture Estate, make
all such expenditures with respect to the Indenture Estate as it may deem
proper. In each such case, the Indenture Trustee shall have the right to deal
with the Indenture Estate and to carry on the business and exercise all rights
and powers of the Owner Lessor relating to the Indenture Estate, as the
Indenture Trustee shall deem best, and, the Indenture Trustee shall be entitled
to collect and receive all rents (including Periodic Rent and Supplemental
Rent), revenues, issues, income, products and profits of the Indenture Estate
and every part thereof (without prejudice to the right of the Indenture Trustee
under any provision of this Indenture to collect and receive cash held by, or
required to be deposited with, the Indenture Trustee hereunder) and to apply the
same to the management of or otherwise dealing with the Indenture Estate and of
conducting the business thereof, and of all expenditures with respect to the
Indenture Estate and the making of all payments which the Indenture Trustee may
be required or may elect to make, if any, for taxes, assessments, insurance or
other proper charges upon the Indenture Estate or any part thereof (including
the employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Owner Lessor and the Facility
Lessees relating to the Indenture Estate and the Operative Documents), or under
any provision of, this Indenture, as well as just and reasonable compensation
for the services of the Indenture Trustee and of all Persons properly engaged
and employed by the Indenture Trustee.
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Section 4.7. Power of Sale and Other Remedies.
(a) In addition to all other remedies provided for herein if a Lease
Indenture Event of Default shall have occurred and be continuing, the Indenture
Trustee shall, subject to Sections 4.3 and 4.4, have the right to sell the
Indenture Estate or any part of the Indenture Estate at public sale or sales, in
order to pay the Secured Indebtedness, and all impositions, if any, with accrued
interest thereon, and all expenses of the sale and of all proceedings in
connection therewith, including reasonable attorney's fees, if incurred. At any
such public sale, the Indenture Trustee may execute and deliver to the purchaser
a conveyance of the Indenture Estate or any part of the Indenture Estate, and to
this end, the Owner Lessor hereby constitutes and appoints the Indenture Trustee
the agent and attorney in fact of the Owner Lessor to make such sale and
conveyance, and thereby to divest the Owner Lessor of all right, title or equity
that the Owner Lessor may have in and to the Indenture Estate and to vest the
same in the purchaser or purchasers at such sale or sales, and all the acts and
doings of said agent and attorney in fact are hereby ratified and confirmed and
any recitals in said conveyance or conveyances as to facts essential to a valid
sale shall be binding upon the Owner Lessor. The aforesaid power of sale and
agency hereby granted are coupled with an interest and are irrevocable by death
or otherwise, are granted as cumulative of the other remedies provided hereby or
by law for collection of the Secured Indebtedness and shall not be exhausted by
one exercise thereof but may be exercised until full payment of the Secured
Indebtedness. Further, if a Lease Indenture Event of Default shall have occurred
and be continuing, the Indenture Trustee may, in addition to and not in
abrogation of other rights and remedies provided in this Section, either with or
without entry or taking possession as herein provided or otherwise, proceed by a
suit or suits in law or in equity or by any other appropriate proceeding or
remedy (i) to enforce payment of the Notes or the performance of any term,
covenant, condition or agreement of this Indenture or any other right, and (ii)
to pursue any other remedy available to it, all as the Indenture Trustee shall
determine most effectual for such purposes. Upon any foreclosure sale, the
Indenture Trustee may bid for and purchase the Indenture Estate and shall be
entitled to apply all or any part of the Secured Indebtedness as a credit to the
purchase price. In the event of a foreclosure sale of the Indenture Estate, the
proceeds of said sale shall be applied as provided in Section 3.3 hereof. In the
event of any such foreclosure sale by the Indenture Trustee, the Owner Lessor
shall be deemed a tenant holding over and shall forthwith deliver possession to
the purchaser or purchasers at such sale or be summarily dispossessed according
to provisions of law applicable to tenants holding over. The Indenture Trustee,
at the Indenture Trustee's option, is authorized to foreclose this Indenture
subject to the rights of any tenants of the Indenture Estate, and the failure to
make any such tenants parties to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted to be by the Owner Lessor, a
defense to any proceedings instituted by the Indenture Trustee to collect the
Secured Indebtedness.
(b) In amplification of, and not in limitation of paragraph (a) of this
Section 4.7, the Owner Lessor represents and warrants that this Indenture is
given primarily for a business, commercial or agricultural purpose. Owner
Lessor, therefore, agrees that Indenture Trustee, its successors and permitted
assigns, shall have THE STATUTORY POWER OF SALE pursuant to the applicable
provisions of Titles 14 and 33 of the Maine Revised Statutes of 1964, as said
statutes have been and shall be amended, which POWER is expressly incorporated
herein by reference. Such Statutory Power of Sale shall be in addition to all
rights and remedies set forth herein or available under Applicable Law. In the
exercise of the Statutory Power of Sale,
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Indenture Trustee, its successors and assigns or its or their agent or attorney,
may sell the Indenture Estate or such portion thereof as may remain subject to
the Indenture in case of any partial release thereof, either as a whole or in
parcels, together with all improvements that may be thereon, by a public sale on
or near any part of the Indenture Estate then subject to this Indenture or at
the Indenture Trustee's principal place of business or at any other office of
the Indenture Trustee or any attorney or agent thereof located in the same
county in which any part of the Indenture Estate is located, and the Indenture
Trustee, its successors and permitted assigns; and such sale shall forever bar
the Owner Lessor and all persons claiming under it from all right and interest
in the Indenture Estate, whether at law or in equity. In the exercise of THE
STATUTORY POWER OF SALE herein given, if the Indenture Trustee elects to sell in
parts or parcels, such sales may be held from time to time, and the POWER shall
not be fully executed until all of the Indenture Estate not previously sold
shall have been sold.
(c) In amplification of, and not in limitation of paragraph (a) of this
Section 4.7, the Owner Lessor hereby further grants to Indenture Trustee, with
MORTGAGE COVENANTS for breach of which covenants and any other covenants
contained herein Indenture Trustee shall have THE STATUTORY POWER OF SALE, as
set forth in RI. Gen. Laws Section 34-11-22, as said statute shall have been and
shall be amended, which power is expressly incorporated herein by reference.
Such Statutory Power of Sale shall be in addition to all rights and remedies set
forth herein or available under Applicable Law. In the exercise of the Statutory
Power of Sale, Indenture Trustee, its successors and assigns or its or their
agent or attorney, may sell the Indenture Estate or such portion thereof as may
remain subject to the Indenture in case of any partial release thereof, either
as a whole or in parcels, together with all improvements that may be thereon,
pursuant to and in accordance with the requirements and provisions of said
statute. In the exercise of THE STATUTORY POWER OF SALE herein given, if the
Indenture Trustee elects to sell in parts or parcels, such sales may be held
from time to time, and the POWER shall not be fully executed until all of the
Indenture Estate not previously sold shall have been sold. This Indenture is
upon the STATUTORY CONDITION, and upon the further condition that all covenants
contained in this Indenture or in the Operative Documents and/or any other
documents evidencing the Secured Indebtedness, shall be kept and performed, and
for any breach of said STATUTORY CONDITION or further condition, the Indenture
Trustee shall have the STATUTORY POWER OF SALE. Said STATUTORY CONDITION and
STATUTORY POWER OF SALE, as well as the MORTGAGE COVENANTS contained in the
granting clause of this Indenture, are those contained in the General Laws of
the State of Rhode Island. Provided further however, to the extent permitted by
Applicable Law, publication, pursuant to said STATUTORY POWER OF SALE, of notice
of the time and place of sale may, at the sole discretion of the Indenture
Trustee, be made by publishing the same at least once each week for three (3)
successive weeks in a public newspaper published daily in the City of
Providence, Rhode Island, and not as otherwise provided in said STATUTORY POWER
OF SALE. It is expressly understood and agreed to by the Owner Lessor and the
Indenture Trustee that the power of sale contained in this Indenture shall, in
the event that the Indenture Estate is comprised of separate lots or separate
parcels of land or leasehold estates, survive the foreclosure of any portion of
the Indenture Estate and may be exercised on different occasions to separately
foreclose each and every lot or parcel of land or separate leasehold estate,
including, without limitation, the Owner Lessor's leasehold estate under the
Tiverton Site Lease and the Tiverton Site Sublease comprising the Indenture
until all of the Indenture Estate has been foreclosed in accordance with
Applicable Law and the terms of this Indenture.
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Section 4.8. Appointment of Receiver. If the outstanding principal
amount of the Notes shall have been declared due and payable pursuant to Section
4.3 hereof, as a matter of right, the Indenture Trustee shall be entitled to the
appointment of a receiver (who may be the Indenture Trustee or any successor or
nominee thereof) for all or any part of the Indenture Estate, whether such
receivership be incidental to a proposed sale of the Indenture Estate or the
taking of possession thereof or otherwise, and the Owner Lessor hereby consents
to the appointment of such a receiver and will not oppose any such appointment.
Any receiver appointed for all or any part of the Indenture Estate shall be
entitled to exercise all the rights and powers with respect to the Indenture
Estate to the extent instructed to do so by the Indenture Trustee.
Section 4.9. Remedies Cumulative. Each and every right, power and remedy
herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any right, power
or remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy. No delay or omission
by the Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Participant,
the Owner Lessor or the Facility Lessees or to be an acquiescence therein.
Section 4.10. Waiver of Various Rights by the Owner Lessor. The Owner
Lessor hereby waives and agrees, to the extent permitted by Applicable Law, that
it will never seek or derive any benefit or advantage from any of the following,
whether now existing or hereafter in effect, in connection with any proceeding
under or in respect of this Lease Indenture:
(a) any stay, extension, moratorium or other similar law;
(b) any Applicable Law providing for the valuation of or appraisal of
any portion of the Indenture Estate in connection with a sale thereof; or
(c) any right to have any portion of the Indenture Estate or other
security for the Notes marshaled.
The Owner Lessor covenants not to hinder, delay or impede the exercise of any
right or remedy under or in respect of this Lease Indenture, and agrees, to the
extent permitted by Applicable Law, to suffer and permit its exercise as though
no laws or rights of the character listed above were in effect; provided that
this shall not affect or reduce Owner Lessor's rights under Sections 4.3 and 4.4
hereof. Owner Lessor agrees for itself, its successors and assigns, that the
acceptance, before the expiration of the right of redemption and after the
commencement of foreclosure proceedings of this Indenture, of insurance
proceeds, eminent domain awards, rents or anything else of value to be applied
on or to the Secured Indebtedness by Indenture Trustee or any person or party
holding under it shall not constitute a waiver of such foreclosure, and this
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agreement by Owner Lessor shall be that agreement referred to in Section 6204 of
Title 14 of the Maine Revised Statutes of 1964, as may be amended, as necessary
to prevent such waiver of foreclosure. This agreement by Owner Lessor is
intended to apply to the acceptance and such application of any such proceeds,
awards, rents and other sums or anything else of value whether the same shall be
accepted from, or for the account of, Owner Lessor or from any other source
whatsoever by Indenture Trustee or by any person or party holding under
Indenture Trustee at any time or times in the future while any of the
obligations secured hereby shall remain outstanding.
Section 4.11. Discontinuance of Proceedings. In case the Indenture
Trustee or any Noteholder shall have proceeded to enforce any right, power or
remedy under this Indenture by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Indenture Trustee or the Noteholder, then
and in every such case the Owner Lessor, the Indenture Trustee and the Facility
Lessees shall be restored to their former positions and rights hereunder with
respect to the Indenture Estate, and all rights, remedies and powers of the
Indenture Trustee or the Noteholder shall continue as if no such proceedings had
taken place.
Section 4.12. No Action Contrary to the Facility Lessees' Rights Under
the Facility Leases. Notwithstanding any other provision of any of the Operative
Documents, so long as no Lease Event of Default under a Facility Lease shall
have been declared (or deemed to have been declared), the Indenture Trustee and
the Noteholders shall be subject to the Facility Lessees' rights under the
Facility Leases, and neither the Indenture Trustee nor any Noteholders shall
take or cause to be taken any action contrary to the right of the Facility
Lessees, including their respective rights to quiet use and possession of their
respective Facilities.
Section 4.13. Right of the Indenture Trustee to Perform Covenants, Etc.
If the Owner Lessor shall fail to make any payment or perform any act required
to be made or performed by it hereunder or under the Facility Leases, the Site
Leases and Subleases or the Participation Agreement, or if the Owner Lessor
shall fail to release any Lien affecting the Indenture Estate which it is
required to release by the terms of this Indenture or the Participation
Agreement or the LLC Agreement, the Indenture Trustee, without notice to or
demand upon the Owner Lessor and without waiving or releasing any obligation or
defaults may (but shall be under no obligation to, and, except as provided in
the last sentence hereof, shall incur no liability in connection therewith) at
any time thereafter make such payment or perform such act for the account and at
the expense of the Indenture Estate and may take all such action with respect
thereto (including entering upon the Tiverton and Rumford Sites or any part
thereof, to the extent, of the Facilities for such purpose) as may be necessary
or appropriate therefor. No such entry shall be deemed an eviction. All sums so
paid by the Indenture Trustee and all costs and expenses (including legal fees
and expenses) so incurred, together with interest thereon from the date of
payment or incurrence, shall constitute additional indebtedness secured by this
Indenture and shall be paid from the Indenture Estate to the Indenture Trustee
on demand. The Indenture Trustee shall not be liable for any damages resulting
from any such payment or action unless such damages shall be a consequence of
willful misconduct or gross negligence on the part of the Indenture Trustee.
Section 4.14. Further Assurances. The Owner Lessor covenants and agrees
from time to time to do all such acts and execute all such instruments of
further assurance as shall be
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reasonably requested by the Indenture Trustee for the purpose of fully carrying
out and effectuating this Indenture and the intent hereof.
Section 4.15. Waiver of Past Defaults. Any past Lease Indenture Event of
Default and its consequences may be waived by the Indenture Trustee or a
Majority in Interest of Noteholders, except a Lease Indenture Event of Default
(i) in the payment of the principal of, Make-Whole Amount, if any, and or
interest on any Note, subject to the provisions of Sections 5.1 and 8.1 hereof,
or (ii) in respect of a covenant or provision hereof which, under Section 8.2
8.1 hereof, cannot be modified or amended without the consent of each
Noteholder. Upon any such waiver and subject to the terms of such waiver, such
Lease Indenture Event of Default shall cease to exist, and any other Lease
Indenture Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Lease Indenture Event of Default or impair any right
consequent thereon.
SECTION 5. DUTIES OF INDENTURE TRUSTEE; CERTAIN RIGHTS AND DUTIES OF OWNER
LESSOR
Section 5.1. Notice of Action Upon Lease Indenture Event of Default. The
Indenture Trustee shall give prompt written notice to the Owner Lessor and the
Owner Participant of any Lease Indenture Event of Default with respect to which
the Indenture Trustee has Actual Knowledge and will give the Facility Lessees
and the Owner Participant not less than 30 days' prior written notice of the
date on or after which the Indenture Trustee intends to exercise remedies under
Section 4.3 (an "Enforcement Notice"), which notice may be given
contemporaneously with any notice contemplated by Section 4.3(a) or 4.3(b). The
Indenture Trustee shall take such action, or refrain from taking such action, as
the Majority in Interest of Noteholders shall instruct in writing.
Section 5.2. Actions Upon Instructions Generally. Subject to the terms
of Sections 5.4, 5.5 and 5.6 hereof, upon written instructions at any time and
from time to time of a Majority in Interest of Noteholders, the Indenture
Trustee shall take such action, or refrain from taking such action, including
any of the following actions as may be specified in such instructions: (a) give
such notice, direction or consent or exercise such right, remedy or power or
take such action hereunder or under any Assigned Document, or in respect of any
part of or all the Indenture Estate, as it shall be entitled to take and as
shall be specified in such instructions; (b) take such action with respect to or
to preserve or protect the Indenture Estate (including the discharge of Liens)
as it shall be entitled to take and as shall be specified in such instructions;
and (c) waive, consent to, approve (as satisfactory to it) or disapprove all
matters required by the terms of any Operative Document to be satisfactory to
the Indenture Trustee. The Indenture Trustee may, and upon written instructions
from a Majority in Interest of Noteholders, the Indenture Trustee shall, execute
and file or cause to be executed and filed any financing statement (and any
continuation statement with respect to such financing statement) or any similar
instrument or document relating to the security interest or the assignment
created by this Indenture or granted by the Owner Lessor herein as may be
necessary to protect and preserve the security interest or assignment created by
or granted pursuant to this Indenture, to the extent otherwise entitled to do so
and as shall be specified in such instructions.
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Section 5.3. Action Upon Payment of Notes or Termination of Facility
Leases. Subject to the terms of Section 5.4 hereof, upon payment in full of the
principal of and interest on all Notes then outstanding and all other amounts
then due all Noteholders hereunder, and all other sums secured hereby or
otherwise required to be paid hereunder, under the Participation Agreement and
under the Facility Leases, the Indenture Trustee shall execute and deliver to,
or as directed in writing by, the Owner Lessor and the Facility Lessees an
appropriate instrument in due form for recording, releasing the Indenture Estate
from the Lien of this Indenture. Nothing in this Section 5.3 shall be deemed to
expand the instances in which the Owner Lessor is entitled to prepay the Notes.
Section 5.4. Compensation of the Indenture Trustee; Indemnification.
(a) The Owner Lessor will from time to time, on demand, pay to the
Indenture Trustee such compensation for its services hereunder as shall be
agreed to by the Owner Lessor and the Indenture Trustee, or, in the absence of
agreement, reasonable compensation for such services (which compensation shall
include reasonable fees and expenses of its outside counsel and shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Indenture Trustee agrees that it shall have no right
against the Noteholders or, except as provided in Section 3 and Section 4.3
hereof or this Section 5, the Indenture Estate, for any fee as compensation for
its services hereunder.
(b) The Indenture Trustee shall not be required to take any action or
refrain from taking any action under Section 4, 5.2 or 9.1 hereof unless it and
any of its directors, officers, employees or agents shall have been indemnified
in manner and form satisfactory to the Indenture Trustee. The Indenture Trustee
shall not be required to take any action under Section 4 or Section 5.2, 5.3 or
9.1 hereof, nor shall any other provision of this Indenture be deemed to impose
a duty on the Indenture Trustee to take any action, if it shall have been
advised by counsel (who shall not be an employee of the Indenture Trustee) that
such action is contrary to the terms hereof or is otherwise contrary to
Applicable Law or (unless it shall have been indemnified in manner and form
satisfactory to the Indenture Trustee) may result in personal liability to the
Indenture Trustee.
Section 5.5. No Duties Except as Specified; No Action Except Under
Facility Leases, Indenture or Instructions.
(a) The Indenture Trustee shall not have any duty or obligation to
manage, control, use, sell, dispose of or otherwise deal with any part of the
Indenture Estate or otherwise take or refrain from taking any action under or in
connection with this Indenture or the other Assigned Documents except as
expressly provided by the terms of this Indenture or as expressly provided in
written instructions from a Majority in Interest of Noteholders in accordance
with Section 5.2 hereof; and no implied duties or obligations shall be read into
this Indenture against the Indenture Trustee.
(b) The Indenture Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Indenture Estate except (a) as
required by the terms of the Facility Leases, to the extent applicable to the
Indenture Trustee as assignee of the Owner Lessor, (b) in accordance with the
powers granted to, or the authority conferred upon, the Indenture Trustee
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pursuant to this Indenture or in accordance with the express terms hereof or
with written instructions from a Majority in Interest of Noteholders in
accordance with Section 5.2 hereof.
Section 5.6. Certain Rights of the Owner Lessor. Notwithstanding any
other provision of this Indenture or any provision of any Operative Document to
the contrary, and in addition to any rights conferred on the Owner Lessor
hereby:
(a) The Owner Lessor shall at all times, to the exclusion of the
Indenture Trustee, (i) retain all rights to demand and receive payment of, and
to commence an action for payment of, Excepted Payments but the Owner Lessor
shall have no remedy or right with respect to any such payment against the
Indenture Estate nor any right to collect any such payment by the exercise of
any of the remedies under Section 17 of the Facility Leases, except as expressly
set forth in this Section 5.6; (ii) retain all rights with respect to insurance
that Section 11 of the Facility Leases and Schedule 5.45 of the Participation
Agreement specifically confers upon the Owner Lessor and to waive any failure by
the Facility Lessees to maintain the insurance required by Section 11 of the
Facility Leases before or after the fact so long as the insurance maintained by
the Facility Lessees still conforms to Prudent Industry Practice; (iii) retain
all rights to adjust Periodic Rent and Termination Value as provided in Section
3.4 of the Facility Leases, Section 12 of the Participation Agreement or the Tax
Indemnity Agreement; provided, however, that after giving effect to any such
adjustment (x) the amount of Periodic Rent payable on each Rent Payment Date
shall be at least equal to the aggregate amount of all principal and accrued
interest payable on such Rent Payment Date on all Notes then outstanding and (y)
Termination Value shall in no event be less (when added to all other amounts
required to be paid by the Facility Lessees in respect of any early termination
of the Facility Leases) than an amount sufficient, as of the date of payment, to
pay in full the principal of, and interest on all Notes outstanding on and as of
such date of payment; (iv) retain the right to declare the Facility Lessees to
be in default with respect to any Excepted Payments pursuant to Section 17 of
the Facility Leases; (v) except in connection with the exercise of remedies
pursuant to the Facility Leases, retain all rights to exercise the Owner
Lessor's rights relating to the Appraisal Procedure and to confer and agree with
the Facility Lessees on Fair Market Rental Value, or any Renewal Lease Term and
(vi) retain all rights to compromise and settle claims against the Guarantor
under any Calpine Guaranty (but not claims against the Indenture Estate) with
respect to the Equity Portion of Termination Value and Equity Portion of
Periodic Rent (and all amounts of overdue interest relating to such amount);
provided that the Indenture Trustee shall have the right to settle claims
against the Guarantor inclusive of the Equity Portion of Termination Value and
Equity Portion of Periodic Rent (and all amounts of overdue interest relating to
such amount) for an amount which will result in payment in full to the Owner
Lessor of all such unpaid amounts as certified to the Indenture Trustee by the
Owner Lessor, and satisfaction of all claims of the Noteholders.
(b) If there shall have occurred and be continuing a Lease Event of
Default under either Facility Lease, and the Indenture Trustee shall not have,
within the 180 day period after the earlier of (i) any declaration thereof or
(ii) receipt by the Indenture Trustee of notice of such Lease Event of Default
from the Owner Lessor, the Owner Participant, either Facility Lessee or any
Noteholder, to the extent it is not then stayed or otherwise prevented from
demanding payment of Termination Value under both Calpine Guaranties by
operation of law, commenced the exercise of one or more remedies against the
applicable Facility Lessee or the Guarantor under the applicable Calpine
Guaranty and, in either case, demanded payment in full of the
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Termination Value under both Calpine Guaranties, then the Owner Lessor shall
thereafter have the right, shared with the Indenture Trustee, upon notice to the
Indenture Trustee, to exercise remedies and bring one or more proceedings
against the Guarantor under the Calpine Guaranties for the Equity Portion of
Termination Value and the Equity Portion of Periodic Rent (and unpaid interest
thereon) and to receive and retain directly the proceeds thereof; provided that
in any such action or proceeding the Owner Lessor shall compromise, settle and
receive only the Equity Portion of Termination Value, together with all unpaid
amounts of the Equity Portion of Periodic Rent (and all amounts of overdue
interest relating to such amount) and other amounts constituting Excepted
Payments and Owner Lessor shall not, and shall have no right to, compromise,
settle or receive any other amount comprising Termination Value or Periodic
Rent. In addition, the Owner Trustee shall retain the rights set forth in
Section 2.1(d) of each Calpine Guaranty.
(c) If at any time (i) the Indenture Trustee shall have either exercised
remedies under Sections 17.1(b), (c), (d) or (e) of a Facility Lease, or
foreclosed on the Indenture Estate, (ii) a Lease Event of Default shall have
occurred under Section 16(g) or (h) of the Facility Leases or (iii) an "Event of
Default" as defined in the Calpine Guaranties shall have occurred under Section
(e) or (f) thereof, and in any such case the Indenture Trustee has not promptly,
to the extent it is not then stayed or otherwise prevented from demanding
payment of Termination Value under the Calpine Guaranties by operation of law,
demanded payment and proceeded (and continued to proceed) in good faith to
pursue the full Termination Value under the Calpine Guaranties, then the Owner
Lessor shall thereafter have the right, shared with the Indenture Trustee, upon
notice to the Indenture Trustee, to exercise remedies and bring one or more
proceedings against Guarantor under the Calpine Guaranties for the payment of
Termination Value; provided that in any such action or proceeding the Owner
Lessor shall compromise and settle only the Equity Portion of Termination Value,
together with all unpaid amounts of the Equity Portion of Periodic Rent (and all
amounts of overdue interest relating to such amount) and other amounts
constituting Excepted Payments and shall not, and shall have no right to,
compromise or settle any amount comprising Termination Value other than the
Equity Portion of Termination Value and the Equity Portion of Periodic Rent (and
all amounts of overdue interest relating to such amount); provided further that
any amounts otherwise payable to or received by the Owner lessor pursuant to any
action or proceeding referred to in this Section 5.6(c) shall constitute a
portion of the Indenture Estate and shall be deposited with and paid over to the
Indenture Trustee for application in accordance with the terms of this
Indenture. At all times that the Indenture Trustee is proceeding against Calpine
under the Calpine Guarantees, the Indenture Trustee shall pursue the full
Termination Value, together with all unpaid amounts of unpaid Periodic Rent (and
all amounts of overdue interest relating to such amount); provided that the
Indenture Trustee shall be entitled to compromise on behalf of the Noteholders
amounts constituting Termination Value under the Calpine Guaranties but not
constituting the Equity Portion of Termination Value or the Equity Portion of
Periodic Rent and so long as such compromise would not otherwise have a material
adverse effect on the Owner Participant.
(d) The Owner Lessor shall have the right, but not to the exclusion of
the Indenture Trustee, (i) to receive from the Facility Lessees and the
Guarantor all notices, certificates, opinions of counsel and other documents and
all information that the Facility Lessees are permitted or required to give or
furnish to the Owner Lessor or the Owner Participant, as the case may be,
pursuant to the Facility Leases or any other Operative Document; (ii) to inspect
the
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Facilities and the records relating thereto pursuant to Section 12 of the
Facility Leases; (iii) to provide such insurance as may be permitted by Section
11 of the Facility Leases; (iv) to provide notices to the Facility Lessees or
the Guarantor to the extent otherwise permitted by the Operative Documents; and
(v) to perform for the Facility Lessees as provided in Section 20 of the
Facility Leases;
(e) So long as the Notes have not been accelerated pursuant to Section
4.3(a) hereof (or, if accelerated, such acceleration has theretofore been
rescinded) or the Indenture Trustee shall not have exercised any of its rights
pursuant to Section 4 hereof to take possession of, foreclose, sell or otherwise
take control of all or any part of the Indenture Estate, the Owner Lessor shall
retain the right to the exclusion of the Indenture Trustee to exercise the
rights of the Owner Lessor under, and to determine compliance by the Facility
Lessees with, the provisions of Sections 10 (other than Section 10.3 thereof),
13, 14 and 15 of the Facility Leases; provided, however, that if a Lease
Indenture Event of Default shall have occurred and be continuing, the Owner
Lessor shall cease to retain such rights upon notice from the Indenture Trustee
stating that such rights shall no longer be retained by the Owner Lessor;
(f) Except as otherwise provided in this Section 5.6, so long as the
Notes have not been accelerated pursuant to Section 4.3(a) hereof (or, if
accelerated, such acceleration has theretofore been rescinded) or the Indenture
Trustee shall not have exercised any of its rights pursuant to Section 4 hereof
to take possession of, foreclose, sell or otherwise take control of all or any
part of the Indenture Estate, the Owner Lessor shall have the right, to be
exercised jointly with the Indenture Trustee, (i) to exercise the rights with
respect to the Facility Lessees' use and operation, modification or maintenance
of the Facility, (ii) to exercise the Owner Lessor's right under Section 13.1 of
the Participation Agreement to withhold or grant its consent to an assignment by
the Facility Lessees of their rights under the Facility Leases, and (iii) to
exercise the rights of the Owner Lessor under Section 10.3 of the Facility
Leases; provided, however, that if a Lease Indenture Event of Default shall have
occurred and be continuing, the Owner Lessor shall cease to exercise such rights
under this clause (iii) upon notice from the Indenture Trustee stating that such
rights shall no longer be retained by the Owner Lessor; provided further,
however, that (A) the Owner Lessor shall have no right to receive any Periodic
Rent or other payments other than Excepted Payments payable to the Owner Lessor,
or the Owner Participant, and (B) no determination by the Owner Lessor or the
Indenture Trustee that the Facility Lessees are in compliance with the
provisions of any applicable Assigned Document shall be binding upon or
otherwise affect the rights hereunder of the Indenture Trustee or any Noteholder
on the one hand or the Owner Lessor or the Owner Participant on the other hand;
and
(g) Nothing in this Indenture shall give to, or create in, or otherwise
provide the benefit of to, the Indenture Trustee, any rights of the Owner
Participant under or pursuant to the Tax Indemnity Agreement or any other
Operative Document and nothing in this Section 5.6 or elsewhere in this
Indenture shall give to the Owner Lessor the right to exercise any rights
specifically given to the Indenture Trustee pursuant to any Operative Document;
and nothing in this Indenture shall give to, or create in, the Indenture Trustee
the right to, and the Indenture Trustee shall not, release the Guarantor of its
obligations under either Guaranty in respect of payment of the Equity Portion of
Termination Value, unpaid amounts of the Equity Portion of Periodic Rent (and
all amounts of overdue interest relating to such amount) and other amounts
constituting Excepted Payments, unless such release results in payment in full
to the Owner
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Lessor of all such unpaid amounts as certified to the Indenture Trustee by the
Owner Lessor, and all claims of the Noteholders;
but nothing in clauses (a) through (f) above shall deprive the Indenture Trustee
of the exclusive right, so long as this Indenture shall be in effect, to declare
the Facility Leases to be in default under Section 16 thereof and thereafter to
exercise the remedies pursuant to Section 17 of the Facility Leases (except in
each case as expressly set forth in clause (iv) of Section 5.6(a) and Sections
5.6(b) and (c) above).
(h) Following any foreclosure of the Owner Lessor's interests in the
Facility Leases in connection with a Lease Indenture Event of Default arising
from a Lease Event of Default, the Indenture Trustee shall not directly or
indirectly enter into any new lease of either or both Facilities with Calpine,
either Facility Lessee or any Affiliate thereof.
Section 5.7. Restrictions on Dealing with Indenture Estate. Except as
provided in the Operative Documents, but subject to the terms of this Indenture,
the Owner Lessor shall not use, operate, store, lease, control, manage, sell,
dispose of or otherwise deal with either of the Facilities, the Tiverton Site,
the Rumford Site, any part of the Tiverton Site or the Rumford Site or any other
part of the Indenture Estate.
Section 5.8. Filing of Financing Statements and Continuation Statements.
Pursuant to Section 5.10 of the Participation Agreement, the Facility Lessees
have covenanted to maintain the priority of the Lien of this Indenture on the
Indenture Estate. The Indenture Trustee shall, at the written request and
expense of the Facility Lessees, as provided in the Participation Agreement,
execute and deliver to the Facility Lessees and the Facility Lessees will file,
if not already filed, such financing statements or other documents and such
continuation statements or other documents with respect to financing statements
or other documents previously filed relating to the Lien created by this
Indenture in the Indenture Estate as may be supplied to the Indenture Trustee by
the Facility Lessees. At any time and from time to time, upon the request of the
Facility Lessees or the Indenture Trustee, at the expense of the Facility
Lessees (and upon receipt of the form of document so to be executed), the Owner
Lessor shall promptly and duly execute and deliver any and all such further
instruments and documents as the Facility Lessees or the Indenture Trustee may
request in obtaining the full benefits of the security interest and assignment
created or intended to be created hereby and of the rights and powers herein
granted. Upon the reasonable instructions (which instructions shall be
accompanied by the form of document to be filed) at any time and from time to
time of the Facility Lessees or the Indenture Trustee, the Owner Lessor shall
execute and file any financing statement (and any continuation statement with
respect to any such financing statement), and any other document relating to the
security interest and assignment created by this Indenture as may be specified
in such instructions. In addition, the Indenture Trustee and the Owner Lessor
will execute such continuation statements with respect to financing statements
and other documents relating to the Lien created by this Indenture in the
Indenture Estate as may be specified from time to time in written instructions
of any Noteholder (which instructions may, by their terms, be operative only at
a future date and which shall be accompanied by the form of such continuation
statement or other document to be filed). Neither the Indenture Trustee nor,
except as otherwise herein expressly provided, the Owner Lessor shall have
responsibility for the protection, perfection or preservation of the Lien
created by this Indenture.
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SECTION 6. INDENTURE TRUSTEE AND OWNER LESSOR
Section 6.1. Acceptance of Trusts and Duties. The Indenture Trustee
accepts the trusts hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture, and agrees to receive and
disburse all moneys constituting part of the Indenture Estate in accordance with
the provisions hereof. If any Lease Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall, subject to the
provisions of Sections 4 and 5 hereof, exercise such of the rights and remedies
vested in it by this Indenture and shall at all times use the same degree of
care in their exercise as a prudent person would exercise or use in the
circumstances in the conduct of its own affairs. The Indenture Trustee shall not
be liable under any circumstances, except (a) for its own negligence or willful
misconduct, (b) in the case of any inaccuracy of any representation or warranty
of the Indenture Trustee or the Lease Indenture Company contained in Section 3.5
of the Participation Agreement, in the certificate delivered by the Indenture
Trustee at the Closing pursuant to Section 4.6 of the Participation Agreement,
or (c) for the performance of its obligations under Section 8 of the
Participation Agreement; and the Lease Indenture Company and the Indenture
Trustee shall not be liable for any action or inaction of the Owner Trust;
provided, however, that:
(i) Prior to the occurrence of a Lease Indenture Event of Default
of which a Responsible Officer of the Indenture Trustee shall have
Actual Knowledge, and after the curing of all such Indenture Events of
Default which may have occurred, the duties and obligations of the
Indenture Trustee shall be determined solely by the express provisions
of the Operative Documents to which it is a party, the Indenture Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in the Operative Documents, no
implied covenants or obligations shall be read into the Operative
Documents against the Indenture Trustee and, in the absence of bad faith
on the part of the Indenture Trustee, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any notes or opinions furnished
to the Indenture Trustee and conforming to the requirements of this
Indenture;
(ii) The Indenture Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or other officers of the Indenture Trustee, unless it shall be
proven that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Indenture Trustee shall not be liable in its individual
capacity with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with this Indenture or at the
direction of the Majority in Interest of Noteholders, relating to the
time, method and place of conducting any proceeding or remedy available
to the Indenture Trustee, or exercising or omitting to exercise any
trust or power conferred upon the Indenture Trustee, under this
Indenture;
(iv) The Indenture Trustee shall not be required to take notice or
be deemed to have notice or knowledge of any default, Lease Event of
Default, Significant Lease Default or Lease Indenture Event of Default
(except for a Lease Indenture Event of Default resulting from an event
of nonpayment) unless a Responsible Officer of the
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Indenture Trustee shall have received written notice thereof. In the
absence of receipt of such notice, the Indenture Trustee may
conclusively assume that there is no default or Lease Indenture Event of
Default;
(v) The Indenture Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability for the performance
of any of its duties hereunder or the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this
Indenture shall in any event require the Indenture Trustee to perform,
or be responsible for the manner of performance of, any of the
obligations of the Owner Lessor, under this Indenture; and
(vi) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as
a duty, and the Indenture Trustee shall not be answerable for other than
its negligence or willful misconduct in the performance of such act.
Section 6.2. Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Section 5.2 hereof and except as
provided in Section 5.5 and 5.8 hereof, the Indenture Trustee shall have no duty
(a) to see to any registration, recording or filing of any Operative Document
(or any financing or continuation statements in respect thereto) or to see to
the maintenance of any such registration, recording or filing, (b) to see to any
insurance on the Facilities or the Facilities or to effect or maintain any such
insurance, (c) except as otherwise provided in Section 5.5 hereof or in Section
10 of the Participation Agreement, to see to the payment or discharge of any Tax
or any Lien of any kind owing with respect to, or assessed or levied against,
any part of the Indenture Estate, (d) to confirm or verify the contents of any
report, notice, request, demand, certificate, financial statement or other
instrument of the Facility Lessees, (e) to inspect the Facilities at any time or
ascertain or inquire as to the performance or observance of any of the Facility
Lessees' covenants with respect to the Facilities or (f) to exercise any of the
trusts or powers vested in it by this Indenture or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Noteholders, pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby (which in the case of the Majority in
Interest of Noteholders will be deemed to be satisfied by a letter agreement
with respect to such costs from such Majority in Interest of Noteholders).
Notwithstanding the foregoing, the Indenture Trustee shall furnish to each
Noteholder and to the Owner Lessor and the Owner Participant promptly upon
receipt thereof duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and other instruments furnished to the
Indenture Trustee hereunder or under any of the Operative Documents unless the
Indenture Trustee shall reasonably believe that each such Noteholder, the Owner
Lessor and the Owner Participant shall have received copies thereof.
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Section 6.3. Representations and Warranties.
(a) The Owner Lessor represents and warrants that it has not assigned or
pledged any of its estate, right, title or interest subject to this Indenture,
to anyone other than the Indenture Trustee.
(b) NEITHER THE OWNER LESSOR NOR THE INDENTURE TRUSTEE MAKES, NOR SHALL
BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AS TO THE TITLE, VALUE, COMPLIANCE WITH PLANS OR SPECIFICATIONS, QUALITY,
DURABILITY, SUITABILITY, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR
FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE OF THE FACILITY, OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE FACILITIES OR ANY OTHER PART OF THE INDENTURE ESTATE, except
that the Owner Lessor represents and warrants that on the Closing Date it shall
have received whatever title or interest to the Facilities and the Tiverton and
Rumford Sites as were conveyed to it by the Facility Lessees and that on the
Closing Date the Facilities shall be free of Owner Lessor's Liens and the Owner
Participant's Liens; or (ii) any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Notes or any of the other
Operative Documents, or as to the correctness of any statement contained in any
thereof, except that each of the Owner Lessor and the Indenture Trustee
represents and warrants that this Indenture and the Participation Agreement have
been, and, in the case of the Owner Lessor, the other Operative Documents to
which it is or is to become a party have been or will be, executed and delivered
by one of its officers who is and will be duly authorized to execute and deliver
such document on its behalf.
Section 6.4. No Segregation of Moneys; No Interest. All moneys and
securities deposited with and held by the Indenture Trustee under this Indenture
for the purpose of paying, or securing the payment of, the principal of or
Make-Whole Amount or interest on the Notes shall be held in trust. Except as
specifically provided herein or in the Facility Leases, any moneys received by
the Indenture Trustee hereunder need not be segregated in any manner except to
the extent required by Applicable Law and may be deposited under such general
conditions as may be prescribed by Applicable Law, and neither the Owner Lessor
nor the Indenture Trustee shall be liable for any interest thereon; provided,
however, subject to Section 6.5 hereof, that any payments received or applied
hereunder by the Indenture Trustee shall be accounted for by the Indenture
Trustee so that any portion thereof paid or applied pursuant hereto shall be
identifiable as to the source thereof to the extent known to the Indenture
Trustee.
Section 6.5. Reliance; Agents; Advice of Experts. The Indenture Trustee
shall be authorized and protected and incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed to be
genuine and believed to be signed by the proper party or parties. The Indenture
Trustee may accept in good faith a certified copy of a resolution of the general
partner (or equivalent body) of the Facility Lessees as conclusive evidence that
such resolution has been duly adopted by such Board and that the same is in full
force and effect. As to the amount of any payment to which any Noteholder is
entitled pursuant to Clause "Third" of Section 3.2 or Section 3.3 hereof, and as
to the amount of any payment to which any other
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Person is entitled pursuant to Section 3.5 or Section 3.7 hereof, the Indenture
Trustee for all purposes hereof may rely on and shall be authorized and
protected in acting or refraining from acting upon an Officer's Certificate of
such Noteholder or other Person, as the case may be. As to any fact or matter
the manner of ascertainment of which is not specifically described herein, the
Indenture Trustee for all purposes hereof may rely on an Officer's Certificate
of the Owner Lessor or the Facility Lessees or a Noteholder as to such fact or
matter, and such certificate shall constitute full protection to the Indenture
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon. The Indenture Trustee shall have the right to request
instructions from the Owner Lessor or the Majority in Interest of Noteholders
with respect to taking or refraining from taking any action in connection with
the Lease Indenture or any other Operative Document to which it is a party, and
shall be entitled to act or refrain from taking such action unless and until the
Indenture Trustee shall have received written instructions from the Owner Lessor
or the Majority in Interest of Noteholders, and the Indenture Trustee shall not
incur liability by reason of so acting (except as provided in Section 6.1) or
refraining from acting. In the administration of the trusts hereunder, the
Indenture Trustee may execute any of the trusts or powers hereof and perform its
powers and duties hereunder directly or through agents or attorneys and may, at
the expense of the Indenture Estate (but subject to the priorities of payment
set forth in Section 3 hereof), consult with independent skilled Persons to be
selected and retained by it (other than Persons regularly in its employ) as to
matters within their particular competence, and the Indenture Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion, within such Person's area of competence,
of any such Person, so long as the Indenture Trustee shall have exercised
reasonable care in selecting such Person.
SECTION 7. SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES
Section 7.1. Resignation or Removal of the Indenture Trustee;
Appointment of Successor.
(a) Resignation or Removal. The Indenture Trustee or any successor
thereto may resign at any time with or without cause by giving at least thirty
(30) days' prior written notice to the Owner Lessor, the Owner Participant, the
Facility Lessees and each Noteholder, such resignation to be effective on the
acceptance of appointment by the successor Indenture Trustee pursuant to the
provisions of subsection (b) below. In addition, a Majority in Interest of
Noteholders may at any time remove the Indenture Trustee with or without cause
by an instrument in writing delivered to the Owner Lessor, the Owner Participant
and the Indenture Trustee, and the Owner Lessor shall give prompt written
notification thereof to each Noteholder and the Facility Lessees. Such removal
will be effective on the acceptance of appointment by the successor Indenture
Trustee pursuant to the provisions of subsection (b) below. In the case of the
resignation or removal of the Indenture Trustee, a Majority in Interest of
Noteholders may appoint a successor Indenture Trustee by an instrument signed by
such holders. If a successor Indenture Trustee shall not have been appointed
within thirty (30) days after such resignation or removal, the Indenture Trustee
or any Noteholder may apply to any court of competent jurisdiction to appoint a
successor Indenture Trustee to act until such time, if any, as a successor shall
have been appointed by a Majority in Interest of Noteholders as above provided.
The successor Indenture Trustee so appointed by such court shall immediately and
without further act
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be superseded by any successor Indenture Trustee appointed by a Majority in
Interest of Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Indenture Trustee shall
execute and deliver to the predecessor Indenture Trustee, the Owner Participant,
the Owner Lessor and all Noteholders an instrument accepting such appointment
and thereupon such successor Indenture Trustee, without further act, shall
become vested with all the estates, properties, rights, powers and duties of the
predecessor Indenture Trustee hereunder in the trusts hereunder applicable to it
with like effect as if originally named the Indenture Trustee herein; but
nevertheless, upon the written request of such successor Indenture Trustee or a
Majority in Interest of Noteholders, such predecessor Indenture Trustee shall
execute and deliver an instrument transferring to such successor Indenture
Trustee, upon the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Indenture Trustee, and such
predecessor Indenture Trustee shall duly assign, transfer deliver and pay over
to such successor Indenture Trustee all moneys or other property then held by
such predecessor Indenture Trustee hereunder. To the extent required by
Applicable Law or upon request of the successor Indenture Trustee, the Owner
Lessor shall execute any and all documents confirming the vesting of such
estates, properties, rights and powers in the successor Indenture Trustee.
(c) Qualifications. Any successor Indenture Trustee, however appointed,
shall be a trust company or bank with trust powers (i) which (A) has a combined
capital and surplus of at least $150,000,000, or (B) is a direct or indirect
subsidiary of a corporation which has a combined capital and surplus of at least
$150,000,000 provided such corporation guarantees the performance of the
obligations of such trust company or bank as Indenture Trustee, or (C) is a
member of a bank holding company group having a combined capital and surplus of
at least $150,000,000 provided the parent of such bank holding company group or
a member which itself has a combined capital and surplus of at least
$150,000,000 guarantees the performance of the obligations of such trust company
or bank, and (ii) is willing, able and legally qualified to perform the duties
of Indenture Trustee hereunder upon reasonable or customary terms. No successor
Indenture Trustee, however appointed, shall become such if such appointment
would result in the violation of any Applicable Law or create a conflict or
relationship involving a conflict of interest under the Trust Indenture Act of
1939, as amended.
(d) Merger, etc. Any Person into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any Person to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of subsection (c) of this Section 7.1, be the Indenture Trustee under
this Indenture without further act.
Section 7.2. Appointment of Additional and Separate Trustees.
(a) Appointment. Whenever (i) the Indenture Trustee shall deem it
necessary or prudent in order to conform to any law of any applicable
jurisdiction or to make any claim or bring any suit with respect to or in
connection with the Indenture Estate, this Indenture, the Facility Leases, the
Notes or any of the transactions contemplated by the Operative Documents, (ii)
the Indenture Trustee shall be advised by counsel, satisfactory to it, that it
is so necessary or
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prudent in the interest of the Noteholders or (iii) a Majority in Interest of
Noteholders deems it so necessary or prudent and shall have requested in writing
the Indenture Trustee to do so, then in any such case the Indenture Trustee
shall execute and deliver from time to time all instruments and agreements
necessary or proper to constitute another bank or trust company or one or more
Persons approved by the Indenture Trustee either to act as additional trustee or
trustees of all or any part of the Indenture Estate, jointly with the Indenture
Trustee, or to act as separate trustee or trustees of all or any part of the
Indenture Estate, in any such case with such powers as may be provided in such
instruments or agreements, and to vest in such bank, trust company or Person as
such additional trustee or separate trustee, as the case may be, any property,
title, right or power of the Indenture Trustee deemed necessary or advisable by
the Indenture Trustee, subject to the remaining provisions of this Section 7.2.
The Owner Lessor hereby consents to all actions taken by the Indenture Trustee
under the provisions of this Section 7.2 and agrees, upon the Indenture
Trustee's request, to join in and execute, acknowledge and deliver any or all
such instruments or agreements; and the Owner Lessor hereby makes, constitutes
and appoints the Indenture Trustee its agent and attorney-in-fact for it and in
its name, place and stead to execute, acknowledge and deliver any such
instrument or agreement in the event that the Owner Lessor shall not itself
execute and deliver the same within fifteen (15) days after receipt by it of
such request so to do; provided, however, that the Indenture Trustee shall
exercise due care in selecting any additional or separate trustee if such
additional or separate trustee shall not be a Person possessing trust powers
under Applicable Law. If at any time the Indenture Trustee shall deem it no
longer necessary or prudent in order to conform to any such law or take any such
action or shall be advised by such counsel that it is no longer so necessary or
prudent in the interest of the Noteholders or in the event that the Indenture
Trustee shall have been requested to do so in writing by a Majority in Interest
of Noteholders, the Indenture Trustee shall execute and deliver all instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee. In such connection, the Indenture Trustee may act on behalf of the
Owner Lessor to the same extent as is provided above. Notwithstanding anything
contained to the contrary in this Section 7.2(a), to the extent the laws of any
jurisdiction preclude the Indenture Trustee from taking any action hereunder
either alone, jointly or through a separate trustee under the direction and
control of the Indenture Trustee, the Owner Lessor, at the instruction of the
Indenture Trustee, shall appoint a separate trustee for such jurisdiction, which
separate trustee shall have full power and authority to take all action
hereunder as to matters relating to such jurisdiction without the consent of the
Indenture Trustee, but not subject to the same limitations in any exercise of
his power and authority as those to which the Indenture Trustee is subject.
(b) The Indenture Trustee as Agent. Any additional trustee or separate
trustee at any time by an instrument in writing may constitute the Indenture
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by Applicable Law, to do all acts and things and exercise
all discretions which it is authorized or permitted to do or exercise, for and
in its behalf and in its name. In case any such additional trustee or separate
trustee shall become incapable of acting or cease to be such additional trustee
or separate trustee, the property, rights, powers, trusts, duties and
obligations of such additional trustee or separate trustee, as the case may be,
so far as permitted by Applicable Law, shall vest in and be exercised by the
Indenture Trustee, without the appointment of a new successor to such additional
trustee or separate trustee, unless and until a successor is appointed in the
manner hereinbefore provided.
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(c) Requests, etc. Any request, approval or consent in writing by the
Indenture Trustee to any additional trustee or separate trustee shall be
sufficient to warrant such additional trustee or separate trustee, as the case
may be, to take the requested, approved or consented to action.
(d) Subject to Indenture, etc. Each additional trustee and separate
trustee appointed pursuant to this Section 7.2 shall be subject to, and shall
have the benefit of Sections 3 through 9 hereof insofar as they apply to the
Indenture Trustee. Notwithstanding any other provision of this Section 7.2, (i)
the powers, duties, obligations and rights of any additional trustee or separate
trustee appointed pursuant to this Section 7.2 shall not in any case exceed
those of the Indenture Trustee hereunder, (ii) all powers, duties, obligations
and rights conferred upon the Indenture Trustee in respect of the receipt,
custody, investment and payment of moneys or the investment of moneys shall be
exercised solely by the Indenture Trustee and (iii) no power hereby given to, or
exercisable as provided herein by, any such additional trustee or separate
trustee shall be exercised hereunder by such additional trustee or separate
trustee except jointly with, or with the consent of, the Indenture Trustee.
SECTION 8. SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS
Section 8.1. Supplemental Indenture and Other Amendment With Consent;
Conditions and Limitations. At any time and from time to time, subject to
Sections 8.2 and 8.3 hereof, but only upon the written direction of a Majority
in Interest of Noteholders and the written consent of the Owner Lessor, (a) the
Indenture Trustee shall execute an amendment or supplement hereto for the
purpose of adding provisions to, or changing or eliminating provisions of, this
Indenture as specified in such request, and (b) the Indenture Trustee, as the
case may be, shall enter into or consent to such written amendment of or
supplement to any Assigned Document as each other party thereto may agree to and
as may be specified in such request, or execute and deliver such written waiver
or modification of or consent to the terms of any such agreement or document as
may be specified in such request; provided, however, that without the consent of
the Noteholders representing one hundred percent (100%) of the outstanding
principal amount of the Notes, such percentage to be determined in the same
manner as provided in the definition of the term "Majority in Interest of
Noteholders," no such supplement to or amendment of this Indenture or any
Assigned Document, or waiver or modification of or consent to the terms hereof
or thereof, shall (i) modify the definition of the terms "Majority in Interest
of Noteholders" or reduce the percentage of Noteholders required to take or
approve any action hereunder, (ii) change the amount or the time of payment of
any amount owing or payable under any Note or change the rate or manner of
calculation of interest payable on any Note, (iii) alter or modify the
provisions of Section 3 hereof with respect to the manner of payment or the
order of priorities in which distributions thereunder shall be made as between
the Noteholders and the Owner Lessor, (iv) reduce the amount (except to any
amount as shall be sufficient to pay the aggregate principal of, and interest on
all outstanding Notes) or extend the time of payment of Periodic Rent or
Termination Value except as expressly provided in Section 3.5 of the Facility
Leases, or change any of the circumstances under which Periodic Rent or
Termination Value is payable, (v) consent to any assignment of the Facility
Leases if in connection therewith the Facility Lessees will be released from its
obligation to pay Periodic Rent and Termination Value, except as expressly
provided in Section 13 of the Participation Agreement, or release the Facility
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Lessees of their obligation to pay Periodic Rent or Termination Value or change
the absolute and unconditional character of such obligations as set forth in
Section 9 of the Facility Leases; or (vi) consent to any release of the
Guarantor under Section 8.4 of the Guaranty.
Section 8.2. Supplemental Indentures and other Amendments Without
Consent. Without the consent of any Noteholders but subject to the provisions of
Section 8.3, and only after notice thereof shall have been sent to the
Noteholders and with the consent of the Owner Lessor, the Indenture Trustee
shall enter into any indenture or indentures supplemental hereto or execute any
amendment, modification, supplement, waiver or consent with respect to any other
Operative Document (a) to evidence the appointment of a co-manager in accordance
with the terms of the LLC Agreement, or to evidence the succession of a
successor as the Indenture Trustee hereunder, the removal of the Indenture
Trustee or the appointment of any separate or additional trustee or trustees, in
each case if done pursuant to the provisions of Section 7 hereof and to define
the rights, powers, duties and obligations conferred upon any such separate
trustee or trustees or co-trustee or co-trustees, (b) to correct, confirm or
amplify the description of any property at any time subject to the Lien of this
Indenture or to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee, (c) to provide for any evidence of the creation and
issuance of any Additional Notes pursuant to, and subject to the conditions of,
Section 2.12 and to establish the form and the terms of such Additional Notes,
(d) to cure any ambiguity in, to correct or supplement any defective or
inconsistent provision of, or to add to or modify any other provisions and
agreements in, this Indenture or any other Operative Document in any manner that
will not in the judgment of the Indenture Trustee materially adversely affect
the interests of the Noteholders, (e) to grant or confer upon the Indenture
Trustee for the benefit of the Noteholders any additional rights, remedies,
powers, authority or security which may be lawfully granted or conferred and
which are not contrary or inconsistent with this Indenture, (f) to add to the
covenants or agreements to be observed by the Facility Lessees or the Owner
Lessor and which are not contrary to this Indenture, to add Indenture Events of
Defaults for the benefit of Noteholders or surrender any right or power of the
Owner Lessor, provided it has consented thereto, (g) to effect the assumption of
all or, to the extent otherwise provided hereunder, part of the Lessor Notes by
the Facility Lessees, provided that the supplemental indenture will contain all
of the covenants applicable to the Facility Lessees contained in the Facility
Leases and the Participation Agreement for the benefit of the Indenture Trustees
or the holders of such Lessor Notes, such that the Facility Lessees' obligations
contained therein, if applicable in the event that the Facility Leases are
terminated, will continue to be in full force and effect, (h) to comply with
requirements of the SEC, any applicable law, rules or regulations of any
exchange or quotation system on which the Certificates are listed, or any
regulatory body, (i) to modify, eliminate or add to the provisions of any
Operative Documents to such extent as shall be necessary to qualify or continue
the qualification of this Lease Indenture or the Pass Through Trust Agreements
(including any supplements thereto) under the Trust Indenture Act, or similar
federal statute enacted after the Closing Date, and to add to this Indenture
such other provisions as may be expressly required or permitted by the Trust
Indenture Act of 1939, and (j) to effect any indenture or indentures
supplemental hereto or any amendment, modification, supplement, waiver or
consent with respect to any other Operative Document, provided such supplemental
indenture, amendment, modification, supplement, waiver or consent shall not
reasonably be expected to materially and adversely affect the interest of the
Noteholders; provided, however, that no such amendment, modification,
supplement, waiver or consent contemplated by this Section 8.2 shall, without
the consent of the holder of each then outstanding
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Note, cause any of the events specified in clauses (i) through (v) of the first
sentence of Section 8.1 hereof to occur; and provided, further, that no such
amendment, modification, supplement, waiver or consent contemplated by this
Section 8.2 shall, without the consent of the holder of a Majority in Interest
of Noteholders, modify the provisions of Sections 5.2, 5.6, 6, or 13.1 or [__]
of the Participation Agreement, or modify in any material respect the provisions
of either Calpine Guaranty (other than, in each case, any amendment,
modification, supplement, waiver or consent having no adverse affect on the
interest of the Noteholders).
Section 8.3. Conditions to Action by the Indenture Trustee. If in the
opinion of the Indenture Trustee any document required to be executed pursuant
to the terms of Section 8.1 or 8.2 or the election referred to in Section 9.13
hereof adversely affects any immunity or indemnity in favor of the Indenture
Trustee under this Indenture or the Participation Agreement, or would materially
increase its administrative duties or responsibilities hereunder or thereunder
or may result in personal liability for it (unless it shall have been provided
an indemnity satisfactory to the Indenture Trustee), the Indenture Trustee may
in its discretion decline to execute such document or the election. With every
such document and election, the Indenture Trustee shall be furnished with
evidence that all necessary consents have been obtained and with an opinion of
counsel that such document complies with the provisions of this Indenture, does
not deprive the Indenture Trustee or the holders of the Notes of the benefits of
the Lien hereby created on any property subject hereto or of the assignments
contained herein (except as otherwise consented to in accordance with Section
8.1 hereof) and that all consents required by the terms hereof in connection
with the execution of such document or the making of such election have been
obtained. The Indenture Trustee shall be fully authorized and protected in
relying on such opinion.
SECTION 9. MISCELLANEOUS
Section 9.1. Surrender, Defeasance and Release.
(a) Surrender and Cancellation of Indenture. This Indenture shall be
surrendered and cancelled and the trusts created hereby shall terminate and this
Indenture shall be of no further force or effect upon satisfaction of the
conditions set forth in the proviso to the Granting Clause hereof. Upon any such
surrender, cancellation, and termination, the Indenture Trustee shall pay all
moneys or other properties or proceeds constituting part of the Indenture Estate
(the distribution of which is not otherwise provided for herein) to the Owner
Lessor, and the Indenture Trustee shall, upon request and at the cost and
expense of the Owner Lessor, execute and deliver proper instruments
acknowledging such cancellation and termination and evidencing the release of
the security, rights and interests created hereby. If this Indenture is
terminated pursuant to this Section 9.1(a), the Indenture Trustee shall promptly
notify the Facility Lessees and the Owner Participant of such termination.
(b) Release.
(i) Whenever a Component is replaced pursuant to the Facility
Leases, such component shall automatically and without further act of
any Person be released from the Lien of this Lease Indenture and the
Indenture Trustee shall, upon the written request of the Owner Lessor or
the Facility Lessees, execute and deliver to, and as directed in
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writing by, the Facility Lessees or the Owner Lessor an appropriate
instrument (in due form for recording) releasing the replaced Component
from the Lien of this Indenture.
(ii) Whenever the Facility Lessees are entitled to acquire or have
transferred to it their respective Facilities pursuant to the express
terms of the Facility Leases, the Indenture Trustee shall release the
Indenture Estate from the Lien of this Indenture and execute and deliver
to, or as directed in writing by, the Facility Lessees or the Owner
Lessor an appropriate instrument (in due form for recording) releasing
the Indenture Estate from the Lien of this Indenture; provided that all
sums secured by this Indenture have been paid to the Persons entitled to
such sums.
Section 9.2. Conveyances Pursuant to Section 4.2 of Site Leases and
Subleases. Sales, grants of leases or easements and conveyances of portions of
the Tiverton and Rumford Sites, rights of way, easements or leasehold interest
made by the Facility Lessees in accordance with Section 4.2 of the Site Leases
and Subleases shall automatically, without further act of any Person, be
released from this Lease Indenture.
Section 9.3. Appointment of the Indenture Trustee as Attorney; Further
Assurances. The Owner Lessor hereby constitutes the Indenture Trustee the true
and lawful attorney of the Owner Lessor irrevocably with full power as long as
the Lease Indenture is in effect (in the name of the Owner Lessor or otherwise)
to ask, require, demand, receive, compound and give acquittance for any and all
moneys and claims for moneys due and to become due under or arising out of the
Assigned Documents (except to the extent that such moneys and claims constitute
Excepted Payments), to endorse any checks or other instruments or orders in
connection therewith, to make all such demands and to give all such notices as
are permitted by the terms of the Facility Lease to be made or given by the
Owner Lessor upon the occurrence and continuance of a Lease Event of Default, to
enforce compliance by the Facility Lessees with all terms and provisions of the
Facility Leases (except as otherwise provided in Sections 4.3 and 5.6 hereof),
and to file any claims or take any action or institute any proceedings which the
Indenture Trustee may request in the premises.
Section 9.4. Indenture for Benefit of Certain Persons Only. Nothing in
this Indenture, whether express or implied, shall be construed to give to any
Person other than the parties hereto, the Owner Participant, the Facility
Lessees (with respect to Sections 4.12 and 8.1 hereof) and the Noteholders (and
any successor or assign of any thereof) any legal or equitable right, remedy or
claim under or in respect of this Indenture, and this Indenture shall be for the
sole and exclusive benefit of the parties hereto, the Owner Participant, the
Facility Lessees (as provided in Sections 4.12 and 8.1 hereof) and the
Noteholders.
Section 9.5. Notices; Furnishing Documents, etc. Unless otherwise
expressly specified or permitted by the terms hereof, all communications and
notices provided for herein to a party hereto shall be in writing or by a
telecommunications device capable of creating a written record, and any such
notice shall become effective (a) upon personal delivery thereof, including by
overnight mail or courier service, (b) in the case of notice by United States
mail, certified or registered, postage prepaid, return receipt requested, upon
receipt thereof, or (c) in the case of notice by such a telecommunications
device, upon transmission thereof, provided such transmission is promptly
confirmed by either of the methods set forth in clauses (a) and (b)
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above, in each case addressed to such party and copy party at its address set
forth below or at such other address as such party or copy party may from time
to time designate by written notice to the other party:
If to the Owner Lessor:
PMCC Calpine New England Investment LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President-Leasing
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to the Owner Participant:
PMCC Calpine NEIM LCC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice-President Leasing
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
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If to the Indenture Trustee:
State Street Bank and Trust Company of Connecticut, National
Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Facility Lessees:
If to the Tiverton Lessee:
c/o Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Asset Manager and General Counsel
c/o Calpine Corporation
The ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Rumford Lessee:
c/o Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Asset Manager and General Counsel
c/o Calpine Corporation
The ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Pass Through Trustee:
State Street Bank and Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.6. Severability. Any provision of this Indenture which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating or rendering unenforceable 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 9.7. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by, not individually or personally but solely as trustee of the Owner Lessor
under the LLC Agreement, General Foods Credit Corporation ("GFCC"), not
individually or personally but solely as the managing member of PMCC Calpine
NEIM LLC, the Owner Participant and the sole managing member of the Owner
Lessor, in the exercise of the powers and authority conferred and vested in it
pursuant thereto, (b) each of the representations, undertakings and agreements
herein made on the part of the Owner Lessor is made and intended not as personal
representations, undertakings and agreements by GFCC, but is made and intended
for the purpose for binding only the Owner Lessor, (c) nothing herein contained
shall be construed as creating any liability on GFCC, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
or by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall GFCC, be personally liable for the payment of any
indebtedness or expenses of the Owner Lessor or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Owner Lessor under this Indenture.
Section 9.8. Written Changes Only. Subject to Sections 8.1 and 8.2
hereof, no term or provision of this Indenture or any Note may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the parties hereto; and any waiver of the terms hereof or of any Note
shall be effective only in the specific instance and for the specific purpose
given.
Section 9.9. Counterparts. This Indenture may be executed in separate
counterparts, each of which, when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 9.10. Successors and Permitted Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns and
each Noteholder. Any request, notice, direction, consent, waiver or other
instrument or action by any Noteholder shall bind the successor and assigns
thereof.
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Section 9.11. Headings and Table of Contents. The headings of the
sections of this Indenture and the Table of Contents are inserted for purposes
of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 9.12. Governing Law. This Indenture and the Notes shall be in
all respects governed by and construed in accordance with the laws of the State
of New York, including all matters of construction, validity and performance
(without giving effect to the conflicts of laws provisions thereof, other than
New York General Obligation Law Section 5-1401), except to the extent the laws
of the State of Rhode Island and the State of Maine are mandatorily applicable
under the laws of the State of Rhode Island and the State of Maine.
Section 9.13. Reorganization Proceedings with Respect to the Lessor
Estate. If (a) the Lessor Estate becomes a debtor subject to the reorganization
provisions of Title 11 of the United States Code, or any successor provisions,
(b) pursuant to such reorganization provisions the Owner Participant is required
by reason of the Owner Participant's being held to have recourse liability that
it would not otherwise have had under Section 2.5 hereof to the debtor or the
trustee of the debtor, directly or indirectly, to make payment on account of any
amount payable as principal or interest on the Notes and (c) any Noteholder or
the Indenture Trustee actually receives any Excess Amount (as hereinafter
defined) which reflects any payment by the Owner Participant on account of
clause (b) above, then such Noteholder or the Indenture Trustee, as the case may
be, shall promptly refund such Excess Amount, without interest, to the Owner
Participant after receipt by such Noteholder or the Indenture Trustee, as the
case may be, of a written request for such refund by the Owner Participant
(which request shall specify the amount of such Excess Amount and shall set
forth in detail the calculation thereof). For purposes of this Section 9.13,
"Excess Amount" means the amount by which such payment exceeds the amount which
would have been received by such holder and the Indenture Trustee in respect of
such principal or interest if the Owner Participant had not become subject to
the recourse liability referred to in clause (b) above. Nothing contained in
this Section 9.13 shall prevent the Indenture Trustee or any Noteholder from
enforcing any personal recourse obligations (and retaining the proceeds thereof)
of the Owner Participant under the Participation Agreement.
The Noteholders and the Indenture Trustee agree that should the Lessor
Estate become a debtor subject to the reorganization provisions of the
Bankruptcy Code, they shall upon the request of the Owner Participant, and
provided that the making of the election hereinafter referred to is permitted to
be made by them under Applicable Law and will not have any adverse impact on any
Noteholder, the Indenture Trustee or the Indenture Estate other than as
contemplated by the preceding paragraph, make the election referred to in
Section 1111(b)(1)(A)(i) of Title 11 of the Bankruptcy Code or any successor
provision if, in the absence of such election, the Noteholders would have
recourse against the Owner Participant for the payment of the indebtedness
represented by the Notes in circumstance in which such Noteholders would not
have recourse under this Indenture if the Lessor Estate had not become a debtor
under the Bankruptcy Code.
Section 9.14. Withholding Taxes: Information Reporting. The Indenture
Trustee shall exclude and withhold from each distribution of principal,
Make-Whole Amount, if any, and interest and other amounts due hereunder or under
the Lessor Notes and all withholding taxes applicable thereto as required by
law. The Indenture Trustee agrees (i) to act as such
53
59
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Lessor Notes, to withhold such amounts and timely pay
the same to the appropriate authority in the name of and on behalf of the
Noteholders and to pay to the Noteholders from amounts received by Paying Agent
pursuant hereto such additional amounts so that the net amount actually received
by the Noteholders, after reduction for such withheld amounts, shall be equal to
the full amount of principal, Make-Whole Amount, interest and other amounts
otherwise due and payable hereunder; provided, however, that, notwithstanding
the foregoing, the Paying Agent shall be required to pay such additional amounts
only if and to the extent that (a) the Facility Lessee is required to indemnify
the Noteholders for such amounts under Section 9 of the Participation Agreement
and (b) the Facility Lessee has not paid such amounts within three (3) days
after notice of nonpayment, (ii) that it will file any necessary withholding tax
returns or statements when due, and (iii) that, as promptly as possible after
the payment thereof, it will deliver to each Noteholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Noteholders may reasonably request from time to
time. The Indenture Trustee agrees to file any other information as it may be
required to file under United States law.
Any Noteholder which is organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date such Noteholder becomes
a Holder, (a) so notify the Indenture Trustee, (b) (i) provide the Indenture
Trustee with Internal Revenue Service form Form W-8 BEN or W-8 ECI, as
appropriate, or (ii) notify the Indenture Trustee that it is not entitled to an
exemption from United States withholding tax or a reduction in the rate thereof
on payments of interest. Any such Noteholder agrees by its acceptance of a Note,
on an ongoing basis, to provide like certification for each taxable year and to
notify the Indenture Trustee should subsequent circumstances arise affecting the
information provided the Indenture Trustee in clauses (a) and (b) above. The
Indenture Trustee shall be fully protected in relying upon, and each Noteholder
by its acceptance of a Note hereunder agrees to indemnify and hold the Indenture
Trustee harmless against all claims or liability of any kind arising in
connection with or related to the Indenture Trustee's reliance upon any such
documents, forms or information provided by such Holder to the Indenture
Trustee. In addition, if the Indenture Trustee has not withheld taxes on any
payment made to any Noteholder, and the Indenture Trustee is subsequently
required to remit to any taxing authority any such amount not withheld, such
Noteholder shall return such amount to the Indenture Trustee upon written demand
by the Indenture Trustee, but only to the extent the Indenture Trustee is not
obligated to pay additional amounts with respect to such taxes pursuant to this
Section 9.14. The Indenture Trustee shall be liable only for direct (but not
consequential) damages to any Noteholder due to the Indenture Trustee's
violation of the Code and only to the extent such liability is caused by the
Indenture Trustee's violation of the Code and only to the extent such liability
is caused by the Indenture Trustee's failure to act in accordance with its
standard of care under this Lease Indenture.
Section 9.15. Fixture Financing Statement. This Indenture also is
intended to serve as a fixture financing statement under the Rhode Island and
Maine Uniform Commercial Codes. In connection therewith, the following
information is provided:
(a) Name and address of Debtor:
54
60
PMCC Calpine New England Investment LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President-Leasing
Tax ID Number of Debtor: ____________
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(b) Name and Address of Secured Party (from which information concerning
the security interest may be obtained):
State Street Bank and Trust Company of Connecticut, National
Association, as Indenture Trustee
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) The personal property covered by the security interest granted
hereunder includes goods which are or are to become fixtures upon the real
property described in Exhibits A-1 and A-2 hereto.
(d) Recording: This Indenture is to be recorded in the real estate
records of the Town of Tiverton, Rhode Island and West Oxford County, Maine.
(e) Type of Filing: This is a fixture filing under Section
30-9-401(1)(c) and R.I. Gen. Laws Section 6A-9-401(1)(b) and 6A-9-402(6).
(Remainder of Page Intentionally Left Blank)
55
61
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed on the day and year first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
PMCC CALPINE NEW ENGLAND INVESTMENT LLC, as
Owner Lessor
By: PMCC Calpine NEIM LLC, its managing
member
By: General Foods Credit Corporation, its
managing member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 19th day of
December 2000, by ▇▇▇▇ ▇▇▇▇▇▇, Authorized Signator of General Foods Credit
Corporation, Managing Member of PMCC Calpine NEIM LLC, Managing Member of PMCC
Calpine New England Investment LLC, and acknowledged the foregoing investment to
be his/her free act and deed in said capacity and the free act and deed of said
PMCC Calpine New England Investment LLC.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Notary Public
My Commission Expires
▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 4936031
Qualified in New York County
Commission Expires July 5, ▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 19th day of
December 2000, by ▇▇▇▇ ▇▇▇▇▇▇, Assistant Vice President of State Street Bank and
Trust Company of Connecticut, National Association, a United States banking
corporation, to be the free act and deed on behalf of the corporation.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Notary Public
My Commission Expires
▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 4936031
Qualified in New York County
Commission Expires July 5, 2002
----------------------------------
63
APPENDIX A
DEFINITIONS
64
EXHIBIT A-1
TO
LEASE INDENTURE
DESCRIPTION OF TIVERTON SITE
A-2
65
EXHIBIT A-2
TO
LEASE INDENTURE
DESCRIPTION OF RUMFORD SITE
A-2
66
EXHIBIT B-1
TO
LEASE INDENTURE
FORM OF TIVERTON LESSOR NOTE
PMCC CALPINE NEW ENGLAND INVESTMENT LLC
NONRECOURSE PROMISSORY NOTE (TIVERTON) DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 15, 2018
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
Issued at: New York, New York
Issue Date: December 19, 2000
$190,000,000
PMCC CALPINE NEW ENGLAND INVESTMENT LLC, a Delaware limited liability
company (herein called the "Owner Lessor", which term includes any successor
person under the Collateral Trust Indenture hereinafter referred to), hereby
promises to pay to State Street Bank and Trust Company of Connecticut, National
Association, in its capacity as pass through trustee of the Tiverton and Rumford
2000 Pass Through Trust, (the "Pass Through Trustee")or its registered assigns,
the principal sum of $190,000,000, which is due and payable in a series of
installments of principal with a final payment date of July 15, 2018, as
provided below, together with interest at the rate of 9.00% per annum on the
principal remaining unpaid from time to time from and including the Issue Date
until paid in full. Interest on the outstanding principal amount under this Note
shall be due and payable in arrears semiannually at the rate specified above,
commencing on July 15, 2001, and on each July 15th and January 15th thereafter
until the principal of this Note is paid in full or made available for payment.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Note shall be due and payable in installments on
each of the dates set forth on Schedules 1 hereto. The installment of principal
payable on any such date shall be in an aggregate amount equal to the product of
the Principal Portion set forth on Schedule 1 multiplied by the percentage set
forth on Schedule 1 under the column headed "Principal Amount Payable" for such
date unless the Principal Portion has been prepaid; provided, that the final
installment of principal shall be equal to the then unpaid principal balance of
this Note.
67
Capitalized terms used in this Note that are not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture of Trust,
Mortgage and Security Agreement dated as of December 19, 2000 (the "Collateral
Trust Indenture"), between the Owner Lessor and State Street Bank and Trust
Company of Connecticut, National Association, as trustee (the "Indenture
Trustee").
Interest (computed on the basis of a 360-day year of twelve 30-day
months) on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law) any overdue interest shall be paid, on demand, from
the due date thereof at the Overdue Rate for the period during which any such
principal, premium or interest shall be overdue.
In the event any date on which a payment is due under this Note is not a
Business Day, then payment thereof shall be made on the next succeeding Business
Day with the same force and effect as if made on the date on which such payment
was due.
Except as otherwise specifically provided in the Collateral Trust
Indenture and in the Participation Agreement, all payments of principal,
premium, if any, and interest on this Note, and all payments of any other
amounts due hereunder or under the Collateral Trust Indenture shall be made only
from the Indenture Estate, and the Indenture Trustee shall have no obligation
for the payment thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to make such
payments in accordance with the terms of Section 3 of the Collateral Trust
Indenture. The holder hereof, by its acceptance of this Note, agrees that it
will look solely to the income and proceeds from the Indenture Estate to the
extent available for distribution to the holder hereof, as herein provided, and
that, none of the Owner Participant, the Owner Lessor or the Indenture Trustee
is or shall be personally liable to the holder hereof for any amounts payable
under this Note or under the Collateral Trust Indenture, or, except as expressly
provided in the Collateral Trust Indenture or, in the case of the Owner
Participant and the Owner Lessor, the Participation Agreement for any
performance to be rendered under the Collateral Trust Indenture or any Assigned
Document or for any liability under the Collateral Trust Indenture or any
Assigned Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Indenture Trustee, without any presentment or surrender of this
Note, except that, in the case of the final payment in respect of this Note,
this Note shall be surrendered to the Indenture Trustee, by mailing a check for
the amount then due and payable, in New York Clearing House funds, to the
Noteholder, at the last address of the Noteholder appearing on the Note
Register, or by whichever of the following methods specified by notice from the
Noteholder to the Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to the banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be
68
distributed by the Indenture Trustee are actually received by the Indenture
Trustee if such amounts are received by 12:00 noon, New York City time, on a
Business Day or (ii) on the next succeeding Business Day if received after such
time or if received on any day other than a Business Day. Prior to due
presentment for registration of transfer of this Note, the Owner Lessor and the
Indenture Trustee may deem and treat the Person in whose name this Note is
registered on the Note Register as the absolute owner and holder of this Note
for the purpose of receiving payment of all amounts payable with respect to this
Note and for all other purposes, and neither the Owner Lessor nor the Indenture
Trustee shall be affected by any notice to the contrary. All payments made on
this Note in accordance with the provisions of this paragraph shall be valid and
effective to satisfy and discharge the liability on this Note to the extent of
the sums so paid and neither the Indenture Trustee nor the Owner Lessor shall
have any liability in respect of such payment.
The holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied in the manner set forth in
Section 2.7 of the Collateral Trust Indenture, which provides that each payment
on the Note shall be applied as follows: first, to the payment of accrued
interest (including interest on overdue principal and, to the extent permitted
by Applicable Law, overdue interest) on this Note to the date of such payment;
second, to the payment of the principal amount of, and premium, if any, on this
Note then due (including any overdue installments of principal) thereunder; and
third, to the extent permitted by Section 2.10 of the Collateral Trust
Indenture, the balance, if any, remaining thereafter, to the payment of the
principal amount of, and premium, if any, on this Note.
This Note is the Note referred to in the Collateral Trust Indenture as
the "Lessor Note". The Collateral Trust Indenture permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of the
Collateral Trust Indenture, and the several Notes may be for varying principal
amounts and may have different maturity dates, interest rates, redemption
provisions and other terms. The properties of the Owner Lessor included in the
Indenture Estate are pledged or mortgaged to the Indenture Trustee to the extent
provided in the Collateral Trust Indenture as security for the payment of the
principal of and premium, if any, and interest on this Note and all other Notes
issued and outstanding from time to time under the Collateral Trust Indenture.
Reference is hereby made to the Collateral Trust Indenture for a
statement of the rights of the holder of, and the nature and extent of the
security for, this Note and of the rights of, and the nature and extent of the
security for, the holders of the other Notes and of certain rights of the Owner
Lessor and the Owner Participant, as well as for a statement of the terms and
conditions of the trust created by the Collateral Trust Indenture, to all of
which terms and conditions the holder hereof agrees by its acceptance of this
Note.
This Note is subject to redemption, in whole or in part as provided in
the Collateral Trust Indenture, as follows: (x) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Collateral Trust
Indenture, at a price
69
equal to the principal amount of this Note being redeemed together with accrued
interest on such principal amount to the Redemption Date, and (y) in the case of
redemptions under the circumstances set forth in Sections 2.10(d) of the
Collateral Trust Indenture, at a price equal to the principal amount of this
Note then outstanding together with accrued interest on such principal amount to
the Redemption Date, plus the Make-Whole Premium, if any; provided, however,
that no such redemption shall be made until notice thereof is given by the
Indenture Trustee to the holder hereof as provided in the Collateral Trust
Indenture.
In case either (i) a Regulatory Event of Loss under the Facility Lease
shall occur or (ii) the Facility Lease shall have been terminated pursuant to
Section 13.1 thereof where the Facility Lessee purchases the Undivided Interest
from the Owner Lessor, the obligations of the Owner Lessor under this Note may,
subject to the conditions set forth in Section 2.10(b) of the Collateral Trust
Indenture, be assumed in whole by the Facility Lessee in which case the Owner
Lessor shall be released and discharged from all such obligations. In connection
with such an assumption, the holder of this Note may be required to exchange
this Note for a new Note evidencing such assumption.
In case a Collateral Trust Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Note together with all
accrued but unpaid interest thereon may, subject to certain rights of the Owner
Lessor and the Owner Participant contained or referred to in the Collateral
Trust Indenture, be declared or may become due and payable in the manner and
with the effect provided in the Collateral Trust Indenture.
There shall be maintained at the Indenture Trustee Office a register for
the purpose of registering transfers and exchanges of Notes in the manner
provided in the Collateral Trust Indenture. The transfer of this Note is
registrable, as provided in the Collateral Trust Indenture, upon surrender of
this Note for registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered holder hereof,
together with the amount of any applicable transfer taxes.
It is expressly understood and agreed by the holder of this Note that
(a) this Note is executed and delivered by General Foods Credit Corporation, not
individually or personally but solely as the managing member (the "Managing
Member"), of PMCC Calpine NEIM LLC, the Owner Participant and the sole managing
member of the Owner Lessor, in the exercise of the powers and authority
conferred and vested in it pursuant thereto, (b) each of the undertakings and
agreements in this Note made on the part of the Owner Lessor is made and
intended not as personal undertakings and agreements by the Managing Member but
is made and intended for the purpose for binding only the Owner Lessor, (c)
nothing contained in this Note shall be construed as creating any liability on
the Managing Member individually or personally, to perform any covenant either
expressed or implied contained in this Note, all such liability, if any, being
expressly waived by the holder of this Note or by any Person claiming by,
through or under such holder, and (d) under no circumstances shall the Managing
Member, be personally liable for the payment of any indebtedness or expenses of
the Owner Lessor or be liable for the
70
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Owner Lessor under this Note.
This Note shall be governed by the laws of the State of New York.
71
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
PMCC CALPINE NEW ENGLAND
INVESTMENT LLC
a Delaware limited liability company,
By: PMCC Calpine NEIM LLC,
a Delaware limited liability company,
Managing Member
By: General Foods Credit Corporation,
a Delaware corporation,
Managing Member
By:
---------------------------------------
Name:
Title:
72
This is the Lessor Note referred to in the within-mentioned Collateral
Trust Indenture duly executed as of the date hereof.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
the Indenture Trustee
By:
---------------------------------------
Name:
Title:
73
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-----------------------------------
-----------------------------------
(Please print or typewrite name and address including zip code of assignee)
-----------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
-----------------------------------
attorney to transfer said Note on the books of the Issuer with full power of
substitution in the premises.
Date:
--------------------------- ------------------------------------
(Signature of Transferor)
NOTE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
74
SCHEDULE 1
TO NOTE
Schedule Of Principal Amortization
Principal Portion: $190,000,000
Principal Amount Payable
Payment Date (% of Principal Portion)
----------------------------- --------------------------------------
Dec 19 2000 0.00000000
Jul 15 2001 0.00000000
Jan 15 2002 0.00000000
Jul 15 2002 0.00000000
Jan 15 2003 0.00000000
Jul 15 2003 0.00000000
Jan 15 2004 0.00000000
Jul 15 2004 0.66256831
Jan 15 2005 0.00000000
Jul 15 2005 0.00000000
Jan 15 2006 0.00000000
Jul 15 2006 2.96557377
Jan 15 2007 0.00000000
Jul 15 2007 2.48633880
Jan 15 2008 1.95765027
Jul 15 2008 0.00000000
Jan 15 2009 2.54617486
Jul 15 2009 0.00000000
Jan 15 2010 49.18032787
Jul 15 2010 0.00000000
Jan 15 2011 13.74617486
Jul 15 2011 0.00000000
Jan 15 2012 7.85655738
Jul 15 2012 0.00000000
Jan 15 2013 3.75792350
Jul 15 2013 0.00000000
Jan 15 2014 4.21038251
Jul 15 2014 0.00000000
Jan 15 2015 4.10983607
Jul 15 2015 0.00000000
Jan 15 2016 5.10737705
Jul 15 2016 0.00000000
Jan 15 2017 0.86639344
Jul 15 2017 0.00000000
Jan 15 2018 0.00000000
Jul 15 2018 0.54672131
75
EXHIBIT B-2
TO
LEASE INDENTURE
FORM OF RUMFORD LESSOR NOTE
PMCC CALPINE NEW ENGLAND INVESTMENT LLC
NONRECOURSE PROMISSORY NOTE (RUMFORD) DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 15, 2018
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
Issued at: New York, New York
Issue Date: December 19, 2000
$176,000,000
PMCC CALPINE NEW ENGLAND INVESTMENT LLC, a Delaware limited liability
company (herein called the "Owner Lessor", which term includes any successor
person under the Collateral Trust Indenture hereinafter referred to), hereby
promises to pay to State Street Bank and Trust Company of Connecticut, National
Association, in its capacity as pass through trustee of the Tiverton and Rumford
2000 Pass Through Trust (the "Pass Through Trustee"), or its registered assigns,
the principal sum of $176,000,000, which is due and payable in a series of
installments of principal with a final payment date of July 15, 2018, as
provided below, together with interest at the rate of 9.00% per annum on the
principal remaining unpaid from time to time from and including the Issue Date
until paid in full. Interest on the outstanding principal amount under this Note
shall be due and payable in arrears semiannually at the rate specified above,
commencing on July 15, 2001, and on each July 15th and January 15th thereafter
until the principal of this Note is paid in full or made available for payment.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Note shall be due and payable in installments on
each of the dates set forth on Schedules 1 hereto. The installment of principal
payable on any such date shall be in an aggregate amount equal to the product of
the Principal Portion set forth on Schedule 1 multiplied by the percentage set
forth on Schedule 1 under the column headed "Principal Amount Payable" for such
date unless the Principal Portion has been prepaid; provided, that the final
installment of principal shall be equal to the then unpaid principal balance of
this Note.
4
76
Capitalized terms used in this Note that are not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture of Trust,
Mortgage and Security Agreement dated as of December 19, 2000 (the "Collateral
Trust Indenture"), between the Owner Lessor and State Street Bank and Trust
Company of Connecticut, National Association, as trustee (the "Indenture
Trustee").
Interest (computed on the basis of a 360-day year of twelve 30-day
months) on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law) any overdue interest shall be paid, on demand, from
the due date thereof at the Overdue Rate for the period during which any such
principal, premium or interest shall be overdue.
In the event any date on which a payment is due under this Note is not a
Business Day, then payment thereof shall be made on the next succeeding Business
Day with the same force and effect as if made on the date on which such payment
was due.
Except as otherwise specifically provided in the Collateral Trust
Indenture and in the Participation Agreement, all payments of principal,
premium, if any, and interest on this Note, and all payments of any other
amounts due hereunder or under the Collateral Trust Indenture shall be made only
from the Indenture Estate, and the Indenture Trustee shall have no obligation
for the payment thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Indenture Estate to make such
payments in accordance with the terms of Section 3 of the Collateral Trust
Indenture. The holder hereof, by its acceptance of this Note, agrees that it
will look solely to the income and proceeds from the Indenture Estate to the
extent available for distribution to the holder hereof, as herein provided, and
that, none of the Owner Participant, the Owner Lessor or the Indenture Trustee
is or shall be personally liable to the holder hereof for any amounts payable
under this Note or under the Collateral Trust Indenture, or, except as expressly
provided in the Collateral Trust Indenture or, in the case of the Owner
Participant and the Owner Lessor, the Participation Agreement for any
performance to be rendered under the Collateral Trust Indenture or any Assigned
Document or for any liability under the Collateral Trust Indenture or any
Assigned Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Indenture Trustee, without any presentment or surrender of this
Note, except that, in the case of the final payment in respect of this Note,
this Note shall be surrendered to the Indenture Trustee, by mailing a check for
the amount then due and payable, in New York Clearing House funds, to the
Noteholder, at the last address of the Noteholder appearing on the Note
Register, or by whichever of the following methods specified by notice from the
Noteholder to the Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to the banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be
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77
distributed by the Indenture Trustee are actually received by the Indenture
Trustee if such amounts are received by 12:00 noon, New York City time, on a
Business Day or (ii) on the next succeeding Business Day if received after such
time or if received on any day other than a Business Day. Prior to due
presentment for registration of transfer of this Note, the Owner Lessor and the
Indenture Trustee may deem and treat the Person in whose name this Note is
registered on the Note Register as the absolute owner and holder of this Note
for the purpose of receiving payment of all amounts payable with respect to this
Note and for all other purposes, and neither the Owner Lessor nor the Indenture
Trustee shall be affected by any notice to the contrary. All payments made on
this Note in accordance with the provisions of this paragraph shall be valid and
effective to satisfy and discharge the liability on this Note to the extent of
the sums so paid and neither the Indenture Trustee nor the Owner Lessor shall
have any liability in respect of such payment.
The holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied in the manner set forth in
Section 2.7 of the Collateral Trust Indenture, which provides that each payment
on the Note shall be applied as follows: first, to the payment of accrued
interest (including interest on overdue principal and, to the extent permitted
by Applicable Law, overdue interest) on this Note to the date of such payment;
second, to the payment of the principal amount of, and premium, if any, on this
Note then due (including any overdue installments of principal) thereunder; and
third, to the extent permitted by Section 2.10 of the Collateral Trust
Indenture, the balance, if any, remaining thereafter, to the payment of the
principal amount of, and premium, if any, on this Note.
This Note is the Note referred to in the Collateral Trust Indenture as
the "Lessor Note". The Collateral Trust Indenture permits the issuance of
additional notes ("Additional Lessor Notes"), as provided in Section 2.12 of the
Collateral Trust Indenture, and the several Notes may be for varying principal
amounts and may have different maturity dates, interest rates, redemption
provisions and other terms. The properties of the Owner Lessor included in the
Indenture Estate are pledged or mortgaged to the Indenture Trustee to the extent
provided in the Collateral Trust Indenture as security for the payment of the
principal of and premium, if any, and interest on this Note and all other Notes
issued and outstanding from time to time under the Collateral Trust Indenture.
Reference is hereby made to the Collateral Trust Indenture for a
statement of the rights of the holder of, and the nature and extent of the
security for, this Note and of the rights of, and the nature and extent of the
security for, the holders of the other Notes and of certain rights of the Owner
Lessor and the Owner Participant, as well as for a statement of the terms and
conditions of the trust created by the Collateral Trust Indenture, to all of
which terms and conditions the holder hereof agrees by its acceptance of this
Note.
This Note is subject to redemption, in whole or in part as provided in
the Collateral Trust Indenture, as follows: (x) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Collateral Trust
Indenture, at a price
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78
equal to the principal amount of this Note being redeemed together with accrued
interest on such principal amount to the Redemption Date, and (y) in the case of
redemptions under the circumstances set forth in Sections 2.10(d) of the
Collateral Trust Indenture, at a price equal to the principal amount of this
Note then outstanding together with accrued interest on such principal amount to
the Redemption Date, plus the Make-Whole Premium, if any; provided, however,
that no such redemption shall be made until notice thereof is given by the
Indenture Trustee to the holder hereof as provided in the Collateral Trust
Indenture.
In case either (i) a Regulatory Event of Loss under the Facility Lease
shall occur or (ii) the Facility Lease shall have been terminated pursuant to
Section 13.1 thereof where the Facility Lessee purchases the Undivided Interest
from the Owner Lessor, the obligations of the Owner Lessor under this Note may,
subject to the conditions set forth in Section 2.10(b) of the Collateral Trust
Indenture, be assumed in whole by the Facility Lessee in which case the Owner
Lessor shall be released and discharged from all such obligations. In connection
with such an assumption, the holder of this Note may be required to exchange
this Note for a new Note evidencing such assumption.
In case a Collateral Trust Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Note together with all
accrued but unpaid interest thereon may, subject to certain rights of the Owner
Lessor and the Owner Participant contained or referred to in the Collateral
Trust Indenture, be declared or may become due and payable in the manner and
with the effect provided in the Collateral Trust Indenture.
There shall be maintained at the Indenture Trustee Office a register for
the purpose of registering transfers and exchanges of Notes in the manner
provided in the Collateral Trust Indenture. The transfer of this Note is
registrable, as provided in the Collateral Trust Indenture, upon surrender of
this Note for registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered holder hereof,
together with the amount of any applicable transfer taxes.
It is expressly understood and agreed by the holder of this Note that
(a) this Note is executed and delivered by General Foods Credit Corporation, not
individually or personally but solely as the managing member ("Managing
Member"), of PMCC Calpine NEIM LLC, the Owner Participant and the sole managing
member of the Owner Lessor, in the exercise of the powers and authority
conferred and vested in it pursuant thereto, (b) each of the undertakings and
agreements in this Note made on the part of the Owner Lessor is made and
intended not as personal undertakings and agreements by the Managing Member but
is made and intended for the purpose for binding only the Owner Lessor, (c)
nothing contained in this Note shall be construed as creating any liability on
the Managing Member individually or personally, to perform any covenant either
expressed or implied contained in this Note, all such liability, if any, being
expressly waived by the holder of this Note or by any Person claiming by,
through or under such holder, and (d) under no circumstances shall the Managing
Member, be personally liable for the payment of any indebtedness or expenses of
the Owner Lessor or be liable for the
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79
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Owner Lessor under this Note.
This Note shall be governed by the laws of the State of New York.
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80
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
PMCC CALPINE NEW ENGLAND
INVESTMENT LLC,
a Delaware limited liability company,
By: PMCC Calpine NEIM LLC,
a Delaware limited liability company,
Managing Member
By: General Foods Credit Corporation,
a Delaware corporation,
Managing Member
By:
---------------------------------------
Name:
Title:
81
This is the Lessor Note referred to in the within-mentioned Collateral
Trust Indenture duly executed as of the date hereof.
STATESTREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as the Indenture Trustee
By:
---------------------------------------
Name:
Title:
82
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
----------------------------------
(Please print or typewrite name and address including zip code of assignee)
----------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
----------------------------------
attorney to transfer said Note on the books of the Issuer with full power of
substitution in the premises.
Date:
---------------------- ---------------------------------------------
(Signature of Transferor)
NOTE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
83
SCHEDULE 1
TO NOTE
Schedule Of Principal Amortization
Principal Portion: $176,000,000
Principal Amount Payable
Payment Date (% of Principal Portion)
----------------------------- ---------------------------------------
Dec 19 2000 0.00000000
Jul 15 2001 0.00000000
Jan 15 2002 0.00000000
Jul 15 2002 0.00000000
Jan 15 2003 0.00000000
Jul 15 2003 0.00000000
Jan 15 2004 0.00000000
Jul 15 2004 0.66256831
Jan 15 2005 0.00000000
Jul 15 2005 0.00000000
Jan 15 2006 0.00000000
Jul 15 2006 2.96557377
Jan 15 2007 0.00000000
Jul 15 2007 2.48633880
Jan 15 2008 1.95765027
Jul 15 2008 0.00000000
Jan 15 2009 2.54617486
Jul 15 2009 0.00000000
Jan 15 2010 49.18032787
Jul 15 2010 0.00000000
Jan 15 2011 13.74617486
Jul 15 2011 0.00000000
Jan 15 2012 7.85655738
Jul 15 2012 0.00000000
Jan 15 2013 3.75792350
Jul 15 2013 0.00000000
Jan 15 2014 4.21038251
Jul 15 2014 0.00000000
Jan 15 2015 4.10983607
Jul 15 2015 0.00000000
Jan 15 2016 5.10737705
Jul 15 2016 0.00000000
Jan 15 2017 0.86639344
Jul 15 2017 0.00000000
Jan 15 2018 0.00000000
Jul 15 2018 0.54672131
B-1
84
EXHIBIT C
TO
LEASE INDENTURE
FORM OF CERTIFICATE OF AUTHENTICATION
Authentication Order
December 19, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Bank and Trust Company of Connecticut, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Preparation and Registration of Lessor Notes
Ladies and Gentlemen:
Reference is made to the $366,000,000 in aggregate principal amount of
the 9.00% Pass Through Certificates due July 15, 2018 (the "Pass Through
Certificates") of the Tiverton and Rumford 2000 Pass Through Trust representing
undivided beneficial interests in $366,000,000 aggregate principal amount of
secured lease obligation notes (the "Lessor Notes") of PMCC Calpine New England
Investment LLC, a Delaware limited liability company (the "Owner Lessor"),
issued pursuant to the Indenture of Trust, Mortgage and Security Agreement,
dated as of December 19, 2000, between the Owner Lessor and State Street Bank
and Trust Company of Connecticut, National Association, as Indenture Trustee,
comprising $190,000,000 aggregate principal amount of Lessor Notes relating to
the Tiverton Generating Station and $176,000,000 aggregate principal amount of
Lessor Notes relating to the Rumford Generating Station.
You are hereby directed to have the Lessor Notes prepared and registered
in the name of State Street Bank and Trust Company of Connecticut, National
Association, as Pass Through Trustee (the "Pass Through Trustee") under the Pass
Through Trust Agreement, dated as of December 19, 2000, among Tiverton Power
Associates Limited Partnership, a Rhode Island limited partnership, Rumford
Power Associates Limited Partnership, a Maine limited partnership, and the Pass
Through Trustee, and to have the Lessor Notes delivered to the Pass Through
Trustee at 9:00 a.m., Eastern Standard Time, on December 19, 2000.
[CONTINUED ON NEXT PAGE]
C-1
85
Very truly yours,
PMCC CALPINE NEW ENGLAND
INVESTMENT LLC
By PMCC Calpine NEIM LLC,
its Sole Member
By:
-----------------------------
Name:
Title:
2
86
EXHIBIT D-1
TO
LEASE INDENTURE
DESCRIPTION OF TIVERTON FACILITY
ATTACHMENT 2
REAL PROPERTY DESCRIPTION
The Transferred Property is composed of all of Seller's right, title and
interest in, to and under the following property (excluding, in any event, the
Excluded Property):
That certain approximately 265-megawatt net nameplate capacity gas-fired
combined cycle electric generating facility (known also as the "Tiverton
Facility") together with all structures or improvements, all alterations thereto
or replacements thereof, and all other fixtures, attachments, appliances,
equipment, machinery and other articles (hereinafter collectively referred to as
the "Transferred Property"), in each case located on the land situated in
Tiverton, Rhode Island., as described more particularly in Exhibit A attached
hereto (the "Tiverton Facility Site").
The Transferred Property shall include, but not be limited to, the
following principal components of the Tiverton Facility:
1. One Combustion Turbine -- General Electric Model PG7241 (Serial No.
297273)
2. One Combustion Turbine Generator -- General Electric Model 7FH2
(Serial No. 337X705)
3. One Steam Turbine -- General Electric Model A-10 (Serial No.
270T429)
4. One Steam Turbine Generator -- General Electric 7A6 (Serial No.
290T429)
5. One Air Cooled Condenser -- GEA Power Cooling Systems, Inc. (Serial
No. 98-306)
6. One Heat Recovery Steam Generator -- ▇▇▇▇▇▇-▇▇▇▇▇▇▇ three pressure
level with reheater, contains a selective catalytic reduction for
NOx reduction. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Job No. 988730
The Transferred Property shall include such improvements located on the
easements appurtenant to the Tiverton Facility Site to the extent such property
is owned by Seller.
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ 2
excluded property
The property described below constitutes "Excluded Property":
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88
THE FOLLOWING EQUIPMENT LOCATED ON, AT OR NEAR THE TIVERTON FACILITY SITE:
CTG TRANSFORMER - ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ TYPE OA/FA/FA (17 kV:115kV RATING)
SERIAL NO. CL 19343-10102
STG TRANSFORMER - ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ TYPE OA/FA/FA (13.6kV:115kV RATING)
SERIAL NO. CL 19344-10101
AUXILIARY TRANSFORMER - WAUKESHA ELECTRIC SYSTEM CLASS OA/FFA (18kV:4160
VOLT RATING) SERIAL NO. 0951014R1259
ALTERNATE SOURCE TRANSFORMER - VIRGINIA TRANSFORMER - CLASS OA/OA/FFA
(12kV:480 VOLT RATING) SERIAL NO. 4411500A076-9465A
THE FOLLOWING BUILDINGS LOCATED ON THE TIVERTON FACILITY SITE:
ADMINISTRATION AND OPERATIONS BUILDING
THE FOLLOWING TANGIBLE PROPERTY ASSOCIATED WITH THE TIVERTON FACILITY:
ANY AND ALL BOOKS AND RECORDS
THE TANGIBLE EQUIPMENT ASSOCIATED WITH THE TIVERTON FACILITY WHICH IS ORDINARILY
AND CUSTOMARILY REPLACED DURING THE LIFE OF THE FACILITY INCLUDING, BUT NOT
LIMITED TO:
INVENTORIES
SPARE PARTS
VEHICLES
MAINTENANCE EQUIPMENT
OFFICE EQUIPMENT AND SUPPLIES
COMPUTER EQUIPMENT AND SOFTWARE
LABORATORY EQUIPMENT
SAFETY EQUIPMENT
THE FOLLOWING INTANGIBLE PROPERTY ASSOCIATED WITH THE TIVERTON FACILITY
INCLUDING, BUT NOT LIMITED TO:
BANK ACCOUNTS
ACCOUNTING INTANGIBLES
INTELLECTUAL PROPERTY
3
89
CONTRACTS
GOVERNMENT PERMITS
4
90
EXHIBIT D-2
TO
LEASE INDENTURE
DESCRIPTION OF RUMFORD FACILITY
That certain approximately 265-megawatt net nameplate capacity gas-fired
combined cycle electric generating facility (known also as the "Rumford
Facility") located at the westerly end of Industrial Park Road, and commonly
known as Lots 7, 8 and appurtenant easements thereto as shown on the Plan of
Rumford Industrial Park, together with all structures or improvements, all
alterations thereto or replacements thereof, and all other fixtures,
attachments, appliances, equipment, machinery and other articles, in each case
located on the land, or on the easements appurtenant to the land, situated in
the Town of Rumford, County of Oxford, State of Maine.
5