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Exhibit 4.9(a)
Execution Copy
WHEN RECORDED, RETURN TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Bellingham, et al.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
================================================================================
INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
(BA 1/2)
Dated as of July 20, 2000
between
MONTANA OL3 LLC
and
THE CHASE MANHATTAN BANK,
as Lease Indenture Trustee
---------------------------------
COLSTRIP GENERATING UNITS 1 AND 2
AND RELATED COMMON FACILITIES
================================================================================
STATE OF MONTANA } 88409
COUNTY OF ROSEBUD, }SS. $762.00
Filed this 21st day of July 2000 at 2:00 P.M
Recorded in book 95 mg Page 955-1081
County Clerk [ILLEGIBLE]
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS ........................................................4
SECTION 2. THE NOTES ..........................................................5
Section 2.1. Limitation on Notes ..................................5
Section 2.2. Lessor Note ..........................................6
Section 2.3. Execution and Authentication of Notes ................6
Section 2.4. Issuance and Terms of the Lessor Note ................6
Section 2.5. Payments from Indenture Estate Only; No Personal
Liability of the Owner Lessor, the Owner
Participant or the Lease 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 Lease Indenture Trustee ...........15
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM
INDENTURE ESTATE ..................................................15
Section 3.1. Distribution of Periodic Lease 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 Lease
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
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TABLE OF CONTENTS
(continued)
Page
Section 3.10. Disbursement of Amounts Received by the Lease
Indenture Trustee ...................................20
SECTION 4. COVENANTS OF OWNER LESSOR: DEFAULTS; REMEDIES OF LEASE
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 Lease 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 a Facility Lessee's Rights
Under the Facility Lease ............................31
Section 4.13. Right of the Lease 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 LEASE 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 Lease ......................................32
Section 5.4. Compensation of the Lease Indenture Trustee;
Indemnification .....................................33
Section 5.5. No Duties Except as Specified; No Action Except
Under Facility Lease, 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. LEASE INDENTURE TRUSTEE AND OWNER LESSOR ..........................36
Section 6.1. Acceptance of Trusts and Duties......................36
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TABLE OF CONTENTS
(continued)
Page
Section 6.2. Absence of Certain Duties ...........................37
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 Lease Indenture
Trustee; Appointment of Successor ...................39
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 Lease 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 Lease
and Sublease ........................................46
Section 9.3. Appointment of the Lease 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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INDENTURE OF TRUST, MORTGAGE
AND SECURITY AGREEMENT
(BA1/2)
This INDENTURE OF TRUST, MORTGAGE AND SECURITY AGREEMENT (BA1/2) (this
"Indenture"), dated as of July 20, 2000, between MONTANA 0L3 LLC, a Delaware
limited liability company as mortgagor (the "Owner Lessor") and THE CHASE
MANHATTAN BANK, as mortgagee on behalf of the Noteholders (the "Lease Indenture
Trustee").
WITNESSETH:
WHEREAS, pursuant to the Participation Agreement, the Owner Lessor has
purchased certain undivided interests in the Facility from PPL Montana, LLC (the
"Facility Lessee");
WHEREAS, the Owner Lessor has entered into a Facility Lease, dated as of
the date hereof with the Facility Lessee pursuant to which the Facility Lessee
has leased from the Owner Lessor for a term of years the undivided interests in
and to the Facility, which it sold to the Owner Lessor pursuant to the ▇▇▇▇ of
Sale;
WHEREAS, the Facility is more particularly described on Exhibit D hereto
and made a part hereof;
WHEREAS, the Facility Lessee has leased a corresponding undivided interest
as tenant-in-common in and to the applicable portions of the Colstrip Site with
the right to nonexclusive possession thereof to the Owner Lessor and the Owner
Lessor simultaneously therewith has leased each such undivided interest back to
the Facility Lessee;
WHEREAS, the applicable portions of the Colstrip Site are more
particularly described in Exhibit A attached hereto;
WHEREAS, in accordance with this Indenture, the Owner Lessor will execute
and deliver the Lessor Note, the proceeds of which will be used by the Owner
Lessor to finance a portion of the Purchase Price for the Undivided Interest
purchased from the Facility Lessee, and will grant to the Lease Indenture
Trustee the security interests herein provided;
WHEREAS, this Indenture is regarded as a mortgage under the laws of the
State of Montana (and not intended to qualify as an indenture pursuant to the
Small Tract Financing Act), as a security agreement under the Uniform Commercial
Codes of the States of New York and Montana, and as a fixture filing under the
laws of the State of Montana;
WHEREAS, the Owner Lessor and the Lease Indenture Trustee desire to enter
into this Indenture, to, among other things, provide for (a) the issuance by the
Owner Lessor of the Lessor Note to be issued on the Closing Date, and (b) the
conveyance and assignment to the Lease Indenture Trustee on the Closing Date of
the Undivided Interests conveyed to the Owner Lessor
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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;
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 premium, 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 Lease 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 Lease 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 in, to and under the
following described property, rights, interests and privileges, whether now held
or hereafter acquired (which collectively, including all property hereafter
specifically subjected to the security interest created by this Indenture by any
supplement hereto, are included within, and are hereafter referred to as, the
"Indenture Estate");
(1) the Undivided Interest conveyed to the Owner Lessor pursuant to
the ▇▇▇▇ of Sale, and the leasehold estates in the Ground Interest (which is an
undivided interest in the land described in Exhibit A) granted to the Owner
Lessor by the Site Lease and 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 ▇▇▇▇ of Sale, the Facility Lease, the Site Lease and
Sublease, the Assignment and Reassignment of Project Agreements, the
Participation Agreement, and any Qualifying Letter of Credit issued pursuant to
Section 6.5 of the Participation Agreement (collectively, the "Assigned
Documents"), including (a) all amounts of Periodic Lease Rent and Supplemental
Lease Rent and payments of any kind payable under the Facility Lease, 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
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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;
(3) all rents (including Periodic Lease Rent and Supplemental Lease
Rent payable under the Facility Lease), 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 Lease
with respect to the Undivided Interest or any portion thereof as the result of
the sale, lease or other disposition of the Undivided Interest or any portion
thereof and the Ground Interest 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 Lease
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 Lease
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 Lessee 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 Lessee to the Owner Lessor under the Participation Agreement and all
rights of the Owner Lessor to enforce payment of any such amounts;
(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 Colstrip 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 4.4 and 5.6 hereof.
TO HAVE AND TO HOLD the Indenture Estate and all parts, rights, members
and appurtenances thereof, unto the Lease Indenture Trustee and the successors
and permitted assigns of the Lease 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.
Concurrently with the delivery of this Indenture, the Owner Lessor is
delivering to the Lease Indenture Trustee the chattel paper originally executed
counterpart of the Facility Lease. All property referred to in this Granting
Clause, whenever acquired by the Owner Lessor, shall
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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 Lease 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 and Montana.
The Lease 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 Lease 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
Lease 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 Lease Indenture Trustee or the Noteholders
be required or obligated in any manner, except as herein 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).
The Owner Lessor hereby ratifies and confirms its obligations under the
Assigned Documents and does hereby agree that (except as permitted herein) it
will not take, or omit to take, any action, the taking or omission of which
might result in an alteration or impairment of any of the Assigned Documents or
of any of the rights created by any thereof or the assignment hereunder.
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 Lease 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 Lease
Indenture Trustee agrees to accept the trusts and duties hereinafter set forth,
as follows:
SECTION 1. DEFINITIONS
(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
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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.
(b) In addition, the following terms shall have the following meanings.
"Secured Indebtedness" means principal of and premium, if any, and
interest on and other amounts due under all Notes and all other sums payable to
the Noteholders from time to time hereunder and under the Participation
Agreement and the other Operative Documents by the Facility Lessee, the Owner
Participant and the Owner Lessor, including:
(i) The indebtedness evidenced by the Lessor Note, together with
interest thereon at the rate provided in such Lessor Note and premium
thereon and together with any and all renewals, modifications,
consolidations and extensions of the indebtedness evidenced by such Lessor
Note, and principal of such Lessor Note being due and payable as provided
in such Lessor Note;
(ii) Any and all other indebtedness now owing or which may hereafter
be owing by the Owner Lessor to the Lease Indenture Trustee, 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 premium thereon (if any) and together with any and all 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) Any and all additional advances made by the Lease 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) 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 Note
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.
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Section 2.2. Lessor Note. There are hereby created and established
hereunder a note in the aggregate principal amount of $146,237,669.38 with a
final maturity date of July 20, 2020 substantially in the form set forth in
Exhibit B to this Indenture (the "Lessor Note").
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 Lease 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 Lease 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 signed
by the Lessor Manager. The Lease Indenture Trustee shall authenticate and
deliver Additional Lessor Notes, upon a written order of the Owner Lessor
executed by the Lessor Manager 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 Note.
(a) Issuance of the Lessor Note at the Closing. On the Closing Date, the
Lessor Note shall be issued to the Pass Through Trust in the amount (and with
the amortization schedule) set forth on Schedule 3 to the Participation
Agreement (as the same may be adjusted in accordance with Section 14.2 thereof),
and shall be dated the Closing Date.
(b) Principal and Interest. The principal amount of the Lessor Note shall
be due and payable in a series of installments having a final payment date of
July 20, 2020. The principal of the 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 such 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. The 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 such Lessor Note shall be due and payable in arrears semi-annually
commencing on January 2, 2001, and on each July 2 and January 2 thereafter until
paid in full. If any day on which principal, premium, if any, or interest on the
Lessor Note is 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.
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(c) Overdue Payments. Interest (computed on the basis of a 360-day year of
twelve 30-day months) on any overdue principal, premium (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 Lease
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 Lessee to (i) the Lease 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 Lease 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 Lease 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 Lease Indenture
Trustee or such 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, neither the Owner Participant, the Owner Lessor,
the Lease Indenture Company, nor the Lease Indenture Trustee shall be personally
liable to such Noteholder or the Lease 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, premium, 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 Lease Indenture Trustee and the Noteholders to proceed against
the Indenture Estate 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 Lease 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 Lease Indenture Trustee as Paying Agent in connection with the Notes.
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(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 Lease Indenture Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of the
Noteholders or the Lease Indenture Trustee all money held by the Paying Agent
for the payment of principal of or interest on the Notes and shall notify the
Lease Indenture Trustee of any default by the Owner Lessor in making any such
payment.
(b) The principal of and premium, if any, and interest on each Note shall
be paid by the Paying Agent 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 Lease Indenture Trustee: (i) by crediting the amount to
be distributed to such Noteholder to an account maintained by such Noteholder
with the Lease Indenture Trustee, (ii) by making such payment to such Noteholder
in immediately available funds at the Lease Indenture Trustee Office, or (iii)
in the case of the Lessor Note 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 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 Lease 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
Lease Indenture Trustee are actually received by the Lease Indenture Trustee if
such amounts are received by 11:00 a.m., 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 Lease 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 Lease 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 Lease 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 premium 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 premium, 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 premium, if
any, on such Note. The order of
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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 Lease Indenture Trustee as Registrar in connection with the Notes. The Lease
Indenture Trustee shall maintain at the Lease 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 Lease
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 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 satisfactory to the Lease Indenture
Trustee duly executed by the holder thereof or his attorney duly authorized in
writing, and the Lease Indenture Trustee may require opinion of counsel as to
compliance of any such transfer with the Securities Act. The Lease 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 Lease
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.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes. Upon receipt by
the Owner Lessor and the Lease 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 Lease 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 Lease 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 on
a Note pursuant to this Section 2.9 must be sufficient in the reasonable
judgment of the Owner Lessor and the Lease Indenture Trustee to protect the
Owner Lessor, the Lease 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.
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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 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) or (iv), in part, in the event
of:
(i) a termination of the Facility Lease with respect to a Unit
Interest pursuant to Section 10 thereof as a result of the occurrence of
an Event of Loss with respect to the Unit to which such Unit Interest
pertains (other than a Regulatory Event of Loss), such redemption to be in
part, to the extent of such Unit Interest;
(ii) a termination of the Facility Lease pursuant to Section 10
thereof as a result of a Regulatory Event of Loss, unless the Facility
Lessee effects an assumption of the Notes in accordance with paragraph (b)
of this Section 2.10;
(iii) a termination pursuant to Section 13.1 of the Facility Lease,
unless the Facility Lessee purchases the Undivided Interest and
effectuates an assumption of the Notes in accordance with paragraph (b) of
this Section 2.10; and
(iv) a termination by the Facility Lessee of the Facility Lease with
respect to a Unit Interest as a result of an event described in clause (a)
of Section 14.1 of the Facility Lease with respect to the Unit to which
such Unit Interest pertains.
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 Notes
may be assumed in whole (but not in part) by the Facility Lessee in the event of
the occurrence of (i) a Regulatory Event of Loss, or (ii) a termination by the
Facility Lessee pursuant to Section 13.1 of the Facility Lease, where in
connection with such termination the Facility Lessee acquires the Undivided
Interest, in each case, pursuant to an assumption agreement (which assumption
agreement may be combined with the indenture supplemental to this Indenture
hereinafter in this Section 2.10(b) referred to, and shall provide for the
assumption by the Facility Lessee of the obligations and liabilities of the
Owner Lessor and the Owner Participant under the other Operative Documents)
which shall make such obligations and liabilities fully recourse to the Facility
Lessee and shall otherwise be in form and substance acceptable to the Lease
Indenture Trustee. Such assumption agreement shall be accompanied by the opinion
of counsel described below. The Facility Lessee will execute and deliver, and
the Lease 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 Facility Lessee is the issuer
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 Facility Lessee. All documentation in connection
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with any such assumption (including an indenture supplemental to this Indenture
which shall, among other things, contain provisions appropriately amending
references to the Facility Lease in this Indenture and contain covenants by the
Facility Lessee similar to those contained in the Facility Lease (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 Facility Lessee acceptable in form and
substance to the Lease Indenture Trustee. As a condition to the effectiveness of
the assumption by the Facility Lessee and the release of the Owner Lessor and
the Indenture Estate thereby effected, (A) the Lease Indenture Trustee shall
have received an opinion or opinions of counsel of the Facility Lessee,
addressed to the Lease Indenture Trustee, to the effect that (1) such assumption
agreement has been duly authorized, executed and delivered on behalf of the
Facility Lessee, (2) no regulatory approval is necessary or required in
connection therewith (or if any such regulatory approval is necessary or
required, that the same has been duly obtained and is in full force and effect),
(3) such assumption agreement and the supplemental indenture and, in consequence
of the execution and delivery of such assumption agreement, the Notes,
constitute the legal, valid and binding obligations of the Facility Lessee,
enforceable in accordance with their respective terms (except as the same may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
arrangement, moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity), (4) such assumption
agreement and the assumption of the Notes thereunder would not cause a Tax Event
to occur, (5) the Lien of this Indenture shall continue to be a first priority
perfected mortgage and security interest on the Indenture Estate, and (6)
addressing such other issues as the Lease 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 Lease Debt.
(c) The Owner Lessor may, at its option, redeem (i) any Additional Lessor
Note 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 so redeemed to the Redemption Date or
(ii) the Lessor Note in whole at any time under the conditions set forth in
subsection (d)(ii) below for a price equal to the principal amount thereof,
together with accrued interests on such principal amount, plus the Make-Whole
Premium.
(d) The Lessor Note shall also be redeemed, in whole or, 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 Premium, as follows:
(i) The Lessor Note shall be redeemed at such redemption price upon
an optional refinancing pursuant to Section 13.2 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
notice of redemption shall not constitute a Lease Indenture Event of
Default or any other default under the Operative Documents.
(ii) The Lessor Note shall be redeemed at such redemption price upon
an optional prepayment elected by the Owner Lessor pursuant to
2.l0(c)(ii), as described in
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the next two succeeding sentences. In the case of a redemption pursuant to
this clause (ii), the Owner Lessor shall indemnify the Lease Indenture
Trustee and the Facility Lessee 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 Note shall be redeemed, in whole or in part, at
such redemption price upon receipt of moneys by the Lease Indenture
Trustee as a result of the exercise by the Facility Lessee of its rights
to terminate the Facility Lease with respect to one or both Unit Interests
as a result of an event described in clause (b) of Section 14.1 of the
Facility Lease.
The Make-Whole Premium, 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 Facility Lessee or, if
the Owner Lessor or the Lease 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 Facility Lease shall have occurred and be continuing,
selected by the Owner Lessor.
(e) In connection with a termination of the Facility Lease in part as
contemplated by clauses (a)(i), (a)(iv) or (d)(iii), the Lessor Note shall be
redeemed in part as follows: if the Facility Lease is terminated with respect to
▇▇▇▇ ▇, the Unit 1 Principal Portion, and if the Facility Lease is terminated
with respect to ▇▇▇▇ ▇, the Unit 2 Principal Portion, in each case, as reduced
for all installments of such Principal Portion previously paid, shall be
redeemed.
(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 Lease Indenture Trustee in writing of the Redemption Date, the
Section of the Indenture pursuant to which the redemption will occur. The Owner
Lessor shall give each notice to the Lease Indenture Trustee provided for in
this Section 2.10 at least 30 days before the Redemption Date unless the Lease
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 Lessee 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 Lease 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 Lease 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 the Indenture pursuant to which the Notes
called for redemption are being redeemed.
(h) 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
Lease Indenture Trustee may require from the party requesting such new Note or
Notes payment of a sum to reimburse the Owner Lessor and the Lease 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 Lease 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 13.1 of the Participation Agreement for the payment of all or any
portion of Modifications to the Facility pursuant to Section 8 of the Facility
Lease, or (ii) redeeming any previously issued Notes pursuant to an optional
refinancing pursuant to Section 13.2 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
Lease Indenture Trustee, not less than fifteen (15) (unless a shorter period
shall be satisfactory to the Lease 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 a certification that 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 all Notes then
outstanding, be entitled to the same benefits and security of this Indenture as
the other Notes issued pursuant to the terms hereof, be dated the date of
original issuance of such Additional
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Lessor Notes, bear interest at such rates as shall be agreed between the
Facility Lessee 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 last day of the Basic Lease Term, or, in the case of Additional Lessor
Notes issued pursuant to Section 2.12(a)(i), the date that is two (2) years
prior to the last day of the Basic Lease Term.
(c) The terms, conditions and designations of such Additional Lessor Notes
(which shall be consistent with this Indenture) shall be set forth in an
indenture supplemental to this Indenture executed by the Owner Lessor and the
Lease Indenture Trustee. Such Additional Lessor Notes shall be executed as
provided in Section 2.3 hereof and deposited with the Lease Indenture Trustee
for authentication, but before such Additional Lessor Notes shall be
authenticated and delivered by the Lease Indenture Trustee there shall be filed
with the Lease 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 of the Facility Lessee (1) stating
that no Significant Lease Default or Lease Event of Default has occurred
and is continuing, (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 Facility Lease and all supplements
thereto of Periodic Lease Rent and Termination Value, together with all
other amounts payable pursuant to the terms of the Facility Lease, 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) an Officer's Certificate from the Owner Lessor and an
Officer's Certificate from the Lessor Manager stating that no Indenture
Default under clauses (b) through (f) of Section 4.1 hereof or Lease
Indenture Event of Default as to the Owner Lessor or the Lessor Manager,
as the case may be, has occurred and is continuing;
(iv) such additional documents, certificates and opinions as shall
be reasonably required by the Lease Indenture Trustee, and as shall be
reasonably acceptable to the Lease Indenture Trustee;
(v) a request and authorization to the Lease 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 Lease 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 Facility Lessee to such request and
authorization; and
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(vii) an opinion of counsel who shall be reasonably satisfactory to
the Lease Indenture Trustee, 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 Lease 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 Lease Indenture Trustee
shall deliver such Additional Lessor Notes in the manner described in clause (v)
above, but only upon payment to the Lease Indenture Trustee of the sum or sums
specified in such request and authorization.
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 Facility Lessee, the Lease
Indenture Trustee and the Owner Lessor an opinion of counsel, which opinion and
which counsel shall be reasonably satisfactory to the Lease Indenture Trustee,
the Owner Lessor and the Facility Lessee, to the 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 Lease Indenture Trustee. Each Noteholder,
by its acceptance of a Note, shall be deemed to have consented to the
appointment of the Lease Indenture Trustee.
SECTION 3. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM INDENTURE ESTATE
Section 3.1. Distribution of Periodic Lease Rent.
(a) Periodic Lease Rent Distribution. Except as otherwise provided
in Section 3.2 or 3.3 of this Indenture, each installment of Periodic
Lease Rent and any payment of Supplemental Lease Rent constituting
interest on overdue installments of Periodic Lease Rent received by the
Lease Indenture Trustee shall be distributed by the Lease Indenture
Trustee in the following order of priority:
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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 Lease Indenture Trustee upon
Rent Default. If, as a result of any failure by the Facility Lessee to pay
Periodic Lease Rent in full on any date when an installment of Periodic Lease
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 Lease 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 Lease Indenture Trustee thereafter receives the deficiency in
Periodic Lease 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 Lease Indenture
Trustee under Section 3.5 or 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 Lease
Indenture Trustee which is to be distributed by the Lease Indenture Trustee in
payment of Notes shall be applied in accordance with Section 2.7 hereof. Any
payment received by the Lease 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 Lease
Rent or Supplemental Lease 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 Lease Rent or Supplemental Lease 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 Lease Indenture Trustee. If at the time of
receipt by the Lease Indenture Trustee of an installment of Periodic Lease Rent
(whether or not then overdue) or of payment of interest on any overdue
installment of Periodic Lease Rent, there shall have occurred and be continuing
a Lease Indenture Event of Default, the Lease Indenture Trustee shall retain
such installment of Periodic Lease 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 Lease Rent or interest pursuant to clause "Second" of
Section 3.1(a) until such time as the Lease Indenture Trustee shall have
received notice that there shall not be continuing any such Lease Indenture
Event of Default or
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until such time as the Lease 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 Lease Indenture Trustee
unless (i) the Lease 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 Lease Indenture Trustee is
diligently pursuing any dispossessary remedies available under Section 4.2
hereof 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 Lease 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 Lease 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 Lease Indenture Trustee as a result of (x)
an Event of Loss (other than a Regulatory Event of Loss in respect of which the
Facility Lessee 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) an early
termination of the Facility Lease pursuant to Section 13 thereof (other than a
termination in respect of which the Facility Lessee 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 termination of the Facility Lease, 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 Lease 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 Lease Indenture Trustee and to the
extent reimbursable and not previously reimbursed) shall be distributed to
the Lease 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) 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 premium, 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 premium, if any, plus
accrued but unpaid interest thereon to the date of scheduled distribution;
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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 Lease Indenture Trustee after a
Lease Indenture Event of Default shall have occurred and be continuing
(including any amounts realized by the Lease Indenture Trustee from the exercise
of any remedies pursuant to Section 17 of the Facility Lease or from the
application of Section 4.2 hereof) and after either (a) the Lease Indenture
Trustee has declared the 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 Lease Indenture Trustee hereunder, shall, so long as
such declaration shall not have been rescinded, be distributed forthwith by the
Lease Indenture Trustee in the following order of priority:
First, so much of such payments and amounts as shall be required to
reimburse the Lease 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 Lease Indenture Trustee and to the
extent reimbursable and not previously reimbursed) shall be distributed to
the Lease 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 (plus any
Change of Control Premium due in respect thereof required to be paid
pursuant to Section 4.2(a)) 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 (plus any Change of Control Premium due in
respect thereof required to be paid pursuant to Section 4.2(a)) 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 (plus any Change of Control Premium in
respect thereof required to be paid pursuant to Section 4.2(a)) 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 shall be distributed to such
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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 Lease Indenture
Trustee. Upon the written direction and at the risk and expense of the Owner
Lessor, the Lease Indenture Trustee shall invest and reinvest any moneys held by
the Lease Indenture Trustee pursuant to Section 3.1(c), 3.5 or 3.6 hereof in
such Permitted Instruments as may be specified in such direction. The proceeds
received upon the sale or at maturity of any Permitted Instrument and any
interest received on such Permitted Instrument 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 Lease Indenture Trustee in the same manner
as the moneys used to buy such Permitted Instrument, and any Permitted
Instrument may be sold (without regard to maturity date) by the Lease 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 Instrument (including interest received on such Permitted Instrument)
shall be less than the cost thereof (including accrued interest), the Owner
Lessor will pay or cause to be paid to the Lease Indenture Trustee an amount
equal to such deficiency.
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 Lease
Indenture Trustee for which provision as to the application thereof is made in
an Operative Document, but not elsewhere in this Indenture, 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
Lease 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 Lease Indenture Trustee shall hold such payment as part of the Indenture
Estate, but the Lease 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 Lease Indenture Trustee which is payable to the Facility Lessee shall not be
held by the Lease 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 Lease 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
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(b) all payments received and amounts realized by the Lease 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, premium, if any, and
interest on all Notes then outstanding and all other amounts due the Lease
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
premium, if any, and interest on all Notes outstanding;
shall be distributed forthwith by the Lease 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 Lease
Indenture Trustee at any time shall promptly be paid or distributed by the Lease
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 Lease Indenture Trustee to the Owner Lessor in accordance with the
provisions hereof shall be paid by the Lease Indenture Trustee in immediately
available funds to the Owner Lessor'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 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 Lease 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 Lease Indenture Trustee hereunder. The Owner Lessor agrees that if it should
receive any such payments directed to be made to the Lease 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 Lease Indenture Trustee or in accordance
with the Lease Indenture Trustee's instructions. The Lease 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 Lease, any
other Assigned Document or the Undivided Interest in the manner provided in
Section 2.7 hereof, and this Section 3.
Section 3.10. Disbursement of Amounts Received by the Lease Indenture
Trustee. Subject to the last sentence of this Section 3.10 and Section 3.2,
amounts to be distributed by the Lease Indenture Trustee pursuant to this
Section 3 shall be distributed on the date such amounts are actually received by
the Lease Indenture Trustee. Notwithstanding anything to the contrary contained
in this Section 3, in the event the Lease 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 Lease Indenture Trustee after
11:00 a.m., New York City time, or on a day other than a Business Day, may be
distributed on the next succeeding Business Day.
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SECTION 4. COVENANTS OF OWNER LESSOR; DEFAULTS; REMEDIES OF LEASE 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,
premium, 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 holders of Notes under the Participation Agreement;
(b) subject to Section 2.5 hereof, the Owner Lessor agrees to make
restitution to the Indenture Estate for any actual diminution of the assets of
the Indenture Estate resulting from Owner Lessor Liens attributable to it;
(c) the Owner Lessor will not assign or pledge or otherwise dispose of, so
long as this Indenture shall remain in effect and the Lien hereof shall not have
been released pursuant to Section 9.1 hereof, any of its estate, right, title or
interest hereby assigned, to anyone other than the Lease Indenture Trustee, and,
with respect to such estate, right, title and interest hereby assigned, 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 Lease 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; and
(d) the Owner Lessor will deliver a signed copy of any amendment or
supplement to the LLC Agreement to the Lease Indenture Trustee and the Facility
Lessee (and this Indenture and the Indenture Estate shall not be affected by any
action taken under or in respect of the LLC Agreement except as otherwise
provided or permitted by this Indenture).
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 the
Facility Lessee to pay any amount which shall constitute an Excepted
Payment and other than a Lease Event of Default in consequence of the
Facility Lessee's failure to maintain the insurance required by Section 11
of the Facility Lease if, and so long as, (i) such Lease Event of Default
is waived
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by the Owner Lessor and the Owner Participant and (ii) the insurance
maintained by the Facility Lessee 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
premium, if any, or interest on, the Notes within five (5) Business Days
after the same shall have become due; or
(c) the Owner Lessor shall fail to perform or observe any 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 or the Lessor Manager
shall fail to perform or observe any material covenant, obligation or
agreement to be performed by it under Section 8 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 9 of the Participation Agreement, or the Guarantor shall fail to
perform or observe any material covenant, obligation or agreement to be
performed by it under the 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 written 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 Lessor Manager or the
Owner Lessor in Section 3.2 or 3.3 of the Participation Agreement or in
the certificate delivered by the Lessor Manager or the Owner Lessor at the
Closing pursuant to Section 4(g) 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(g)
of the Participation Agreement, or any representation or warranty made by
the Guarantor (provided the Guaranty shall not have been terminated or
released) under the Guaranty or in the certificate delivered by such
Guarantor at the Closing pursuant to Section 4(g) 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 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 Guarantor
(provided the 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
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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 Guarantor (provided
the 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 Lease Indenture Trustee.
(a) In the event that a Lease Indenture Event of Default shall have
occurred and be continuing, the Lease 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 and
premium, if any, thereon, to be immediately due and payable, upon which
declaration such principal amount and such accrued interest and premium, if any,
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 the Lease
Indenture Trustee accelerates the Notes pursuant to this Section 4.3(a) as a
result of the occurrence of a Lease Indenture Event of Default caused by a Lease
Event of Default described under Section 16(j) of the Facility Lease, the Change
of Control Premium shall also be payable.
(b) If a Lease Indenture Event of Default shall have occurred and be
continuing, then and in every such case, the Lease Indenture Trustee, as
assignee under the Facility Lease 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 Lease and 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 Lessee and all persons claiming under them, and may
exercise all remedies available to a secured party under the Uniform Commercial
Code or any other provision of Applicable Law. The Lease Indenture Trustee may
proceed to enforce the rights of the Lease 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
Undivided Interest or for foreclosure of the Undivided Interest, 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
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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 Lease 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 Lease 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 Lease Indenture Trustee and of the
Noteholders asserted or upheld in any bankruptcy, receivership or other judicial
proceedings.
(c) All rights of action and rights to assert claims under this Indenture
or under any of the Notes may be enforced by the Lease Indenture Trustee without
the possession of the Notes at any trial or other proceedings instituted by the
Lease 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 Lease Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture),
the Lease 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 Lease
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 Lease 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 the Facility Lease intending to dispossess the Facility
Lessee of the Undivided Interest 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 if the Lease Indenture Trustee is then stayed or otherwise prevented by
operation of law from exercising such remedies, the Lease 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
commencement of such stay or other prevention or (b) the date of repossession of
the Undivided Interest under the Facility Lease.
(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 Lease with respect to the Equity Portion of
Periodic Rent only, the Lease Indenture
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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 Lease
Indenture Trustee.
(f) Any provisions of the Facility Lease or this Indenture to the contrary
notwithstanding, if the Facility Lessee 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 Lease 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 Lease 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 Lease Indenture Trustee).
(g) Notwithstanding anything herein to the contrary, upon the occurrence
and during the continuance of a Significant Indenture Default caused by a
Significant Lease Default of the type described in clause (i) of the definition
of Significant Lease Default, the Lease Indenture Trustee may, and, upon
obtaining notice or Actual Knowledge that such Significant Indenture Default
shall be continuing on the third Business Day after the date such payment is
due, shall draw upon the Qualifying Letter of Credit to the extent of the
shortfall in such payment and apply the proceeds thereof in accordance with
Section 3.1, 3.2 or 3.3, as the case may be.
Section 4.4. Right to Cure Certain Lease Events of Default.
(a) If the Facility Lessee shall fail to make any payment of Periodic
Lease 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 Lease
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 Lease 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 Lease Indenture Trustee or have Actual Knowledge
of the failure of the Facility Lessee to make such payment of Periodic Lease
Rent, an amount equal to the principal of, premium, 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 the Facility Lessee shall fail to make any payment of Supplemental
Lease Rent when the same shall become due or otherwise fail to perform any
obligation under the Facility Lease or any other Operative Document, then the
Owner Lessor may (but need not) make such payment (to the extent of the amount
of principal of, and premium, if any, and interest on, the Notes then due
(otherwise than by declaration of acceleration)) on the date such Supplemental
Lease 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 shall have received notice or
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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 the Facility Lessee's failure to pay Periodic
Lease Rent or Supplemental Lease Rent or to perform any other obligation under
the Facility Lease 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 the
Facility Lessee or any other party, for the repayment thereof if such claims
would impair the prior right and security interest of the Lease 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 Lease
Indenture Payment Default, Lease Indenture Bankruptcy Default or Lease Indenture
Event of Default hereunder shall have occurred and be continuing) be subrogated
to the rights of the Lease Indenture Trustee and the Noteholders to receive the
payment of Periodic Lease Rent or Supplemental Lease Rent, as the case may be,
with respect to which the Owner Lessor made such payment and interest on account
of such Periodic Lease Rent Payment or Supplemental Lease Rent payment being
overdue in the manner set forth in the next two sentences. If the Lease
Indenture Trustee shall thereafter receive such payment of Periodic Lease Rent,
Supplemental Rent or such interest, the Lease Indenture Trustee shall,
notwithstanding the requirements of Section 3.1 hereof, forthwith, remit such
payment of Periodic Lease Rent or Supplemental Lease 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 Lease Indenture Payment Default, Lease
Indenture Bankruptcy Default or Lease Indenture Event of Default hereunder shall
have occurred and be continuing or (B) any payment of principal, interest, or
premium, 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 Lease 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 the Facility Lessee pursuant to this Section 4.4 except
by demanding of the Facility Lessee payment of such amount or by commencing an
action against the 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
the 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 Lease) or, if paid by the Facility Lessee to
the Lease Indenture Trustee, from the Lease Indenture Trustee to the extent of
funds actually received by the Lease 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 the Facility Lessee
referred to therein, neither the Lease Indenture Trustee nor any Noteholder
shall take or commence any action it would otherwise be entitled to
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take or commence as a result of such failure by the Facility Lessee, whether
under this Section 4 or Section 17 of the Facility Lease 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 Lease Indenture Trustee having
exercised any remedy under the Facility Lease intended to dispossess the
Facility Lessee of the Undivided Interest, (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 Lease
Indenture Trustee to foreclose on the Undivided Interest or otherwise dispossess
of the Undivided Interest 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 Lease 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 premium, such Noteholder will forthwith 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 (other than the
right to receive the Change of Control Premium pursuant to Section 17.1 of the
Facility Lease), 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.
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,
premium, if any, and interest which are then due and payable in respect of all
the Notes otherwise 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
Lease 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 Owner Lessor, the Lease Indenture Trustee and
the Facility Lessee, rescind and annul such acceleration and any related
declaration of default under the Facility Lease and their respective
consequences, but no such rescission and annulment shall extend to or affect any
subsequent
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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. Retain of Indenture Estate, Etc.
(a) If at any time the Lease Indenture Trustee has the right to take
possession of the Indenture Estate pursuant to Section 4.3 hereof, at the
request of the Lease Indenture Trustee, the Owner Lessor promptly shall (i)
execute and deliver to the Lease 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 Lease 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 Lease Indenture Trustee may deem necessary or advisable to enable
the Lease Indenture Trustee or an agent or representative designated by the
Lease Indenture Trustee, at such time or times and place or places as the Lease
Indenture Trustee may specify, to obtain possession of all or any part of the
Indenture Estate the possession of which the Lease 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
Lease Indenture Trustee, the Lease Indenture Trustee may (i) obtain a judgment
conferring on the Lease Indenture Trustee the right to immediate possession and
requiring the Owner Lessor to execute and deliver such instruments and documents
to the Lease 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 Lease 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 Lease 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
Lease Indenture Trustee shall deem best, and, the Lease Indenture Trustee shall
be entitled to collect and receive all rents (including Periodic Lease 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
Lease Indenture Trustee under any provision of this Indenture to collect and
receive cash held by, or required to be deposited with, the Lease 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 Lease 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 Lessee 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
Lease Indenture Trustee and of all Persons properly engaged and employed by the
Lease 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 Lease
Indenture Trustee shall 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
Lease 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 Lease 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 Lease 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 Lease Indenture Trustee
shall determine most effectual for such purposes. Upon any foreclosure sale, the
Lease 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 Lease 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 Lease Indenture Trustee, at the Lease 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 Lease Indenture Trustee to collect the Secured Indebtedness.
(b) In addition, as part of the consideration for the Secured
Indebtedness, the Owner Lessor has absolutely and unconditionally assigned and
transferred to the Lease Indenture Trustee the Revenues, including those now
due, past due or to become due by virtue of any lease or other agreement for the
occupancy or use of all or any part of the Indenture Estate. The Owner Lessor
hereby authorizes the Lease Indenture Trustee or the Lease Indenture Trustee's
agents to collect the Revenues and hereby directs such tenants of the Indenture
Estate to pay the Revenues to the Lease Indenture Trustee or the Lease Indenture
Trustee's agents; provided, however, that prior to written notice given by the
Lease Indenture Trustee to the Owner Lessor of
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any Lease Indenture Event of Default by the Owner Lessor, but subject to the
other provisions of this Lease Indenture, the Owner Lessor shall collect and
receive the Revenues as trustee for the benefit of the Lease Indenture Trustee
and the Owner Lessor, to apply the Revenues so collected to the Secured
Indebtedness with the balance, so long as no Lease Indenture Event of Default
has occurred, to the account of the Owner Lessor. The Owner Lessor agrees that
each tenant of the Indenture Estate shall pay the Revenues to the Lease
Indenture Trustee or the Lease Indenture Trustee's agents on the Lease Indenture
Trustee's written demand therefor without any liability on the part of said
tenant to inquire further as to the existence of a Lease Indenture Event of
Default.
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 Lease Indenture Trustee shall be entitled to
the appointment of a receiver (who may be the Lease 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 Lease Indenture
Trustee.
Section 4.9. Remedies, Cumulative. Each and every right, power and remedy
herein specifically given to the Lease 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 Lease
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 Lease 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 Lessee 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 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.
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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 except as permitted
by Section 4.4 hereof, 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.
Section 4.11. Discontinuance of Proceedings. In case the Lease 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 Lease Indenture Trustee or the Noteholder,
then and in every such case the Owner Lessor, the Lease Indenture Trustee and
the Facility Lessee shall be restored to their former positions and rights
hereunder with respect to the Indenture Estate, and all rights, remedies and
powers of the Lease Indenture Trustee or the Noteholder shall continue as if no
such proceedings had taken place.
Section 4.12. No Action Contrary to a Facility Lessee's Rights Under the
Facility Lease. Notwithstanding any other provision of any of the Operative
Documents, so long as the Facility Lease shall not have been declared (or deemed
to have been declared) in default, the Lease Indenture Trustee shall not take or
cause to be taken any action contrary to the right of the Facility Lessee,
including its rights, to quiet use and possession of the Undivided Interest.
Section 4.13. Rights of the Lease 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 Lease,
the Site Lease and Sublease, the Assignment and Reassignment of Project
Agreements, 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 Lease 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 Colstrip Site or any part thereof, to the
extent, of the Undivided Interest for such purpose) as may be necessary or
appropriate therefor. No such entry shall be deemed an eviction. All sums so
paid by the Lease 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 Lease Indenture
Trustee on demand. The Lease 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 Lease
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 reasonably requested by the Lease Indenture
Trustee for the purpose of fully carrying out and effectuating this Indenture
and the intent hereof.
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Section 4.15. Waiver of Past Defaults. Any past Lease Indenture Event of
Default and its consequences may be waived by the Lease Indenture Trustee,
except a Lease Indenture Event of Default (i) in the payment of the principal
of, premium, 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 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 LEASE INDENTURE TRUSTEE: CERTAIN RIGHTS AND DUTIES OF OWNER
LESSOR
Section 5.1. Notice of Action Upon Lease Indenture Event of Default. The
Lease 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 Lease Indenture Trustee has Actual Knowledge and will give the
Facility Lessee and the Owner Participant not less than 30 days' prior written
notice of the date on or after which the Lease Indenture Trustee intends to
exercise remedies under Section 4.3 (and "Enforcement Notice"), which notice may
be given contemporaneously with any notice contemplated by Section 4.3(a) or
4.3(b). The Lease 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 Lease 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 Lease Indenture Trustee. The Lease Indenture Trustee may, and upon written
instructions from a Majority in Interest of Noteholders, the Lease 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.
Section 5.3. Action Upon Payment of Notes or Termination of Facility
Lease. 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
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Agreement and under the Facility Lease, the Lease Indenture Trustee shall
execute and deliver to, or as directed in writing by, the Owner Lessor 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 Lease Indenture Trustee; Indemnification.
(a) The Owner Lessor will from time to time, on demand, pay to the Lease
Indenture Trustee such compensation for its services hereunder as shall be
agreed to by the Owner Lessor and the Lease 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 Lease 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 Lease 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 Lease Indenture Trustee. The
Lease 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 Lease Indenture Trustee to take any
action, if it shall have been advised by counsel (who shall not be an employee
of the Lease 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 Lease Indenture Trustee) may
result in personal liability to the Lease Indenture Trustee.
Section 5.5. No Duties Except as Specified; No Action Except Under
Facility Lease, Indenture or Instructions.
(a) The Lease 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 Lease Indenture Trustee.
(b) The Lease 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 Lease, 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 Lease Indenture Trustee
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.
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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 Lease
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 Lease; (ii) retain all
rights with respect to insurance that Section 11 of the Facility Lease
specifically confers upon the Owner Lessor and to waive any failure by the
Facility Lessee to maintain the insurance required by Section 11 of the Facility
Lease before or after the fact so long as the insurance maintained by the
Facility Lessee still constitutes Prudent Industry Practice; (iii) retain all
rights to adjust Periodic Lease Rent and Termination Value as provided in
Section 3.5 of the Facility Lease, Section 14 of the Participation Agreement or
the Tax Indemnity Agreement; provided, however, that after giving effect to any
such adjustment (x) the amount of Periodic Lease 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 Lessee in respect of any
early termination of the Facility Lease) 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 Lessee to be in default with respect to any Excepted Payments
pursuant to Section 17 of the Facility Lease; and (v) except in connection with
the exercise of remedies pursuant to the Facility Lease, retain all rights to
exercise the Owner Lessor's rights relating to the Appraisal Procedure and to
confer and agree with the Facility Lessee on Fair Market Rental Value, or any
Renewal Lease Term;
(b) The Owner Lessor shall have the right, but not to the exclusion of the
Lease Indenture Trustee, (i) to receive from the Facility Lessee all notices,
certificates, opinions of counsel and other documents and all information that
the Facility Lessee is permitted or required to give or furnish to the Owner
Lessor or the Owner Participant, as the case may be, pursuant to the Facility
Lease or any other Operative Document; (ii) to inspect the Facility and the
records relating thereto pursuant to Section 12 of the Facility Lease; (iii) to
provide such insurance as may be permitted by Section 11 of the Facility Lease;
and (iv) to perform for the Facility Lessee as provided in Section 20 of the
Facility Lease;
(c) 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 Lease 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 Lease Indenture Trustee to
exercise the rights of the Owner Lessor under, and to determine compliance by
the Facility Lessee with, the provisions of Sections 10 (other than Section 10.3
thereof), 13, 14 and 15 of the Facility Lease; 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 Lease
Indenture Trustee stating that such rights shall no longer be retained by the
Owner Lessor;
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(d) 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 Lease 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 Lease Indenture Trustee, (i) to exercise the rights with
respect to the Facility Lessee's use and operation, modification or maintenance
of the Facility, (ii) to exercise the Owner Lessor's right under Section 14.2
of the Participation Agreement to withhold or grant its consent to an assignment
by the Facility Lessee of its rights under the Facility Lease, and (iii) to
exercise the rights of the Owner Lessor under Section 10.3 of the Facility
Lease; 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 Lease 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 Lease 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 Lease Indenture Trustee that the Facility Lessee is in
compliance with the provisions of any applicable Assigned Document shall be
binding upon or otherwise affect the rights hereunder of the Lease Indenture
Trustee or any Noteholder on the one hand or the Owner Lessor or the Owner
Participant on the other hand; and
(e) Nothing in this Indenture shall give to, or create in, or otherwise
provide the benefit of to, the Lease 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 Lease Indenture Trustee pursuant to any Operative
Document;
but nothing in clauses (a) through (e) above shall deprive the Lease Indenture
Trustee of the exclusive right, so long as this Indenture shall be in effect, to
declare the Facility Lease to be in default under Section 16 thereof (except as
set forth in clause (iv) of paragraph (a) above) and thereafter to exercise the
remedies pursuant to Section 17 of the Facility Lease.
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 the Undivided Interest, the Colstrip Site, any
part of the Colstrip 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 Lessee has
covenanted to maintain the priority of the Lien of this Indenture on the
Indenture Estate. The Lease Indenture Trustee shall, at the written request and
expense of the Facility Lessee, as provided in the Participation Agreement,
execute and deliver to the Facility Lessee and the Facility Lessee 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 Lease Indenture
Trustee by the Facility Lessee. At any time and from time to time, upon the
request of the Facility Lessee or the Lease Indenture Trustee, at the expense of
the Facility
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Lessee (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 Lessee or the Lease 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 Lessee or the Lease 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 Lease 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 Lease
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.
SECTION 6. LEASE INDENTURE TRUSTEE AND OWNER LESSOR
Section 6.1. Acceptance of Trusts and Duties. The Lease 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 Lease 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 Lease Indenture Trustee
shall not be liable under any circumstances, except for its own negligence or
willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Indenture Event of Default of
which a Responsible Officer of the Lease 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 Lease
Indenture Trustee shall be determined solely by the express provisions of
the Operative Documents, the Lease 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 Lease
Indenture Trustee and, in the absence of bad faith on the part of the
Lease Indenture Trustee, the Lease 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
Lease Indenture Trustee and conforming to the requirements of this
Indenture;
(ii) The Lease 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
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Lease Indenture Trustee, unless it shall be proven that the Lease
Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) The Lease 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 Lease Indenture Trustee, or exercising or omitting to exercise any
trust or power conferred upon the Lease Indenture Trustee, under this
Indenture;
(iv) The Lease 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 Lease Indenture
Trustee shall have received written notice thereof. In the absence of
receipt of such notice, the Lease Indenture Trustee may conclusively
assume that there is no default or Lease Indenture Event of Default;
(v) The Lease 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 Lease 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 Lease Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a
duty, and the Lease 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 Lease 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 Facility or the Undivided Interest 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 Lessee, (e) to inspect the Facility at any time
or ascertain or inquire as to the performance or observance of any of the
Facility Lessee's covenants with respect to the Facility (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
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offered to the Lease 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 Lease 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 Lease Indenture Trustee hereunder or under any of
the Operative Documents unless the Lease Indenture Trustee shall reasonably
believe that each such Noteholder, the Owner Lessor and the Owner Participant
shall have received copies thereof.
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 Lease Indenture Trustee.
(b) NEITHER THE OWNER LESSOR NOR THE LEASE 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 UNDIVIDED INTEREST 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 Undivided Interest
and the Colstrip Site as was conveyed to it by the Facility Lessee and that on
the Closing Date; and the Undivided Interest 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 Lease
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 Lease Indenture Trustee under this
Indenture for the purpose of paying, or securing the payment of, the principal
of or premium or interest on the Notes shall be held in trust. Except as
specifically provided herein or in the Facility Lease, any moneys received by
the Lease 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 Lease 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 Lease Indenture Trustee shall be accounted for by
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the Lease 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
Lease Indenture Trustee.
Section 6.5. Reliance; Agents; Advice of Experts. The Lease 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 Lease
Indenture Trustee may accept in good faith a certified copy of a resolution of
the Board of Directors (or equivalent body) of the Facility Lessee 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 Person is
entitled pursuant to Section 3.5 or Section 3.7 hereof, the Lease 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
Lease Indenture Trustee for all purposes hereof may rely on an Officer's
Certificate of the Owner Lessor or the Facility Lessee or a Noteholder as to
such fact or matter, and such certificate shall constitute full protection to
the Lease Indenture Trustee for any action taken or omitted to be taken by it in
good faith in reliance thereon. The Lease 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 Lease Indenture Trustee shall have received written
instructions from the Owner Lessor or the Majority in Interest of Noteholders,
and the Lease 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 Lease 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 Lease 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 Lease 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 Lease Indenture Trustee;
Appointment of Successor.
(a) Resignation or Removal. The Lease 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 Lessee and each Noteholder, such resignation to be effective on the
acceptance of appointment by the successor Lease Indenture Trustee pursuant to
the provisions of subsection (b) below. In addition, a Majority in Interest of
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Noteholders may at any time remove the Lease Indenture Trustee with or without
cause by an instrument in writing delivered to the Owner Lessor, the Owner
Participant and the Lease Indenture Trustee, and the Owner Lessor shall give
prompt written notification thereof to each Noteholder and the Facility Lessee.
Such removal will be effective on the acceptance of appointment by the successor
Lease Indenture Trustee pursuant to the provisions of subsection (b) below. In
the case of the resignation or removal of the Lease Indenture Trustee, a
Majority in Interest of Noteholders may appoint a successor Lease Indenture
Trustee by an instrument signed by such holders. If a successor Lease Indenture
Trustee shall not have been appointed within thirty (30) days after such
resignation or removal, the Lease Indenture Trustee or any Noteholder may apply
to any court of competent jurisdiction to appoint a successor Lease 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 Lease
Indenture Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Lease Indenture Trustee appointed by
a Majority in Interest of Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Lease Indenture Trustee shall
execute and deliver to the predecessor Lease Indenture Trustee, the Owner
Participant, the Owner Lessor and all Noteholders an instrument accepting such
appointment and thereupon such successor Lease Indenture Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers and duties of the predecessor Lease Indenture Trustee hereunder in the
trusts hereunder applicable to it with like effect as if originally named the
Lease Indenture Trustee herein; but nevertheless, upon the written request of
such successor Lease Indenture Trustee or a Majority in Interest of Noteholders,
such predecessor Lease Indenture Trustee shall execute and deliver an instrument
transferring to such successor Lease Indenture Trustee, upon the trusts herein
expressed applicable to it, all the estates, properties, rights and powers of
such predecessor Lease Indenture Trustee, and such predecessor Lease Indenture
Trustee shall duly assign, transfer deliver and pay over to such successor Lease
Indenture Trustee all moneys or other property then held by such predecessor
Lease Indenture Trustee hereunder. To the extent required by Applicable Law or
upon request of the successor Lease Indenture Trustee, the Owner Lessor shall
execute any and all documents confirming the vesting of such estates,
properties, rights and powers in the successor Lease Indenture Trustee.
(c) Qualifications. Any successor Lease 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 Lease 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 Lease Indenture Trustee hereunder upon reasonable or customary terms.
No successor Lease 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.
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(d) Merger, etc. Any Person into which the Lease 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 Lease
Indenture Trustee shall be a party, or any Person to which substantially all the
corporate trust business of the Lease Indenture Trustee may be transferred,
shall, subject to the terms of subsection (c) of this Section 7.1, be the Lease
Indenture Trustee under this Indenture without further act.
Section 7.2. Appointment of Additional and Separate Trustees.
(a) Appointment. Whenever (i) the Lease 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 Lease, the
Notes or any of the transactions contemplated by the Operative Documents, (ii)
the Lease Indenture Trustee shall be advised by counsel, satisfactory to it,
that it is so necessary or 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 Lease Indenture Trustee to do so, then in any such
case the Lease 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 Lease Indenture Trustee
either to act as additional trustee or trustees of all or any part of the
Indenture Estate, jointly with the Lease 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
Lease Indenture Trustee deemed necessary or advisable by the Lease Indenture
Trustee, subject to the remaining provisions of this Section 7.2. The Owner
Lessor hereby consents to all actions taken by the Lease Indenture Trustee under
the provisions of this Section 7.2 and agrees, upon the Lease 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 Lease 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 Lease 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 Lease 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
Lease Indenture Trustee shall have been requested to do so in writing by a
Majority in Interest of Noteholders, the Lease 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 Lease 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 Lease Indenture
Trustee from taking any action hereunder either alone, jointly or through a
separate trustee under the direction and control of the Lease Indenture Trustee,
the Owner Lessor, at the instruction of the Lease Indenture Trustee, shall
appoint a separate trustee for such jurisdiction, which separate trustee shall
have full power and authority to take all action
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hereunder as to matters relating to such jurisdiction without the consent of the
Lease Indenture Trustee, but not subject to the same limitations in any exercise
of his power and authority as those to which the Lease Indenture Trustee is
subject.
(b) The Lease Indenture Trustee as Agent. Any additional trustee or
separate trustee at any time by an instrument in writing may constitute the
Lease 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 Lease 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.
(c) Requests, etc. Any request, approval or consent in writing by the
Lease 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
Lease 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 Lease Indenture Trustee hereunder, (ii) all powers, duties,
obligations and rights conferred upon the Lease Indenture Trustee in respect of
the receipt, custody, investment and payment of moneys or the investment of
moneys shall be exercised solely by the Lease 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
Lease 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
Section 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
Lease 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 Lease 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
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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 Lease Rent or Termination Value except as expressly
provided in Section 3.5 of the Facility Lease, or change any of the
circumstances under which Periodic Lease Rent or Termination Value is payable,
or (v) consent to any assignment of the Facility Lease if in connection
therewith the Facility Lessee will be released from its obligation to pay
Periodic Lease Rent and Termination Value, except as expressly provided in
Section 15.2 of the Participation Agreement, or release the Facility Lessee of
its obligation to pay Periodic Lease Rent or Termination Value or change the
absolute and unconditional character of such obligations as set forth in Section
9 of the Facility Lease.
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 Lease 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 succession of another Person as a Lessor Manager or
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 Lease Indenture
Trustee hereunder, the removal of the Lease 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 Lease 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 Lease Indenture Trustee materially adversely affect the
interests of the Noteholders, (e) to grant or confer upon the Lease 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 Lessee 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 of the Lessor Notes by the Facility Lessee, provided that the supplemental
indenture will contain all of the covenants applicable to
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the Facility Lessee contained in the Facility Lease and the Participation
Agreement for the benefit of the Lease Indenture Trustees or the holders of such
Lessor Notes, such that the Facility Lessee's obligations contained therein, if
applicable in the event that the Facility Lease is 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, in the judgment of the Lease Indenture
Trustee, materially 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 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. 6,
15.2 or 15.3 of the Participation Agreement (other than any amendment,
modification, supplement, waiver or consent having no adverse affect on the
interest of the Noteholders) without the consent of a Majority in Interest of
Noteholders.
Section 8.3. Conditions to Action by the Lease Indenture Trustee. If in
the opinion of the Lease 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
Lease 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 Lease Indenture
Trustee), the Lease Indenture Trustee may in its discretion decline to execute
such document or the election. With every such document and election, the Lease
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 Lease 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 Lease Indenture
Trustee shall be fully authorized and protected in relying on such opinion.
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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 Lease 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 Lease 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 Lease Indenture Trustee shall
promptly notify the Facility Lessee and the Owner Participant of such
termination.
(b) Defeasance of Notes. Any Note shall, prior to the maturity or
redemption date thereof, be deemed to have been paid within the meaning and with
the effect expressed in this Section 9.1 if (i) there shall have been deposited
with the Lease Indenture Trustee either moneys, in an amount which shall be
sufficient, or U.S. Government Obligations, the principal of and the interest on
which when due, and without any reinvestment thereof, will provide moneys in an
amount which shall be sufficient, together with the moneys, if any, deposited
with or held by the Lease Indenture Trustee at the same time (such sufficiency
to be established by the delivery to the Lease Indenture Trustee or such other
trustee of a certificate of an independent public accountant), to payment due
the principal of and premium, if any, and interest due and to become due on said
Note on and prior to the redemption date or maturity date thereof, as the case
may be, and (ii) in the event said Note does not mature or is not to be redeemed
within the next 45 days, the Lease Indenture Trustee shall have been given
irrevocable instructions to give, as soon as practicable, a notice to the
registered holder of such Note that the deposit required by subclause (i) above
has been made with the Lease Indenture Trustee and that said Note is deemed to
have been paid in accordance with this Section 9.1(b) and stating such maturity
or redemption date upon which moneys are to be available for the payment of the
principal of and premium, if any, and interest on said Note. Neither the U.S.
Government Obligations nor moneys deposited with the Lease Indenture Trustee
pursuant to this Section 9.1(b) or principal or interest payments on any such
U.S. Government Obligations shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
premium, if any, and interest on said Note; provided, however, that any cash
received from such principal or interest payments on such U.S. Government
Obligations deposited with the Lease Indenture Trustee shall be reinvested in
accordance with Section 3.4 hereof in U.S. Government Obligations. At such time
as any Note shall be deemed paid as aforesaid, it shall no longer be secured by
or entitled to the benefits of the Indenture Estate or this Indenture, except
that (i) such Note shall be entitled to the benefits of the portions of the
Indenture Estate described in Granting Clauses (4), (5) and (8), to the extent
such portions relate to such moneys or U.S. Government Obligations deposited
with the Lease Indenture Trustee, (ii) the provisions of Sections 2.8 and 2.9
shall continue to apply to such Note and (iii) the duties and immunities of the
Lease Indenture Trustee hereunder shall continue with respect to such Note.
Notwithstanding the foregoing, the Owner Lessor shall not make or cause to be
made the deposit of moneys or
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property provided for by this Section 9.1(b) unless it shall have delivered to
the Lease Indenture Trustee an opinion or opinions of counsel reasonably
satisfactory to the Lease Indenture Trustee to the effect that the deposit of
such moneys or U.S. Government Obligations by the Owner Lessor or other
defeasance of the Lessor Notes will not cause a Tax Event and that all
conditions to such defeasance hereunder have been complied with.
(c) Release.
(i) Whenever a Component is replaced pursuant to the Facility Lease,
such component shall automatically and without further act of any Person
be released from the Lien of this Lease Indenture and the Lease Indenture
Trustee shall, upon the written request of the Owner Lessor or the
Facility Lessee, execute and deliver to, and as directed in writing by,
the Facility Lessee 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 Lessee is entitled to acquire or have
transferred to it the Undivided Interest pursuant to the express terms of
the Facility Lease, the Lease 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 Lessee 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. Cenveyances Pursuant to Section 4.2 of Site Lease and
Sublease. Sales, grants of leases or easements and conveyances of portions of
the Colstrip Site, rights of way, easements or leasehold interest made by the
Facility Lessee in accordance with Section 4.2 of the Site Lease and Sublease
and any Released Property sold, leased or otherwise conveyed pursuant to the
Ground Lessor's Release Rights shall automatically, without further act of any
Person, be released from this Lease Indenture.
Section 9.3. Appointment of the Lease Indenture Trustee as Attorney;
Further Assurances. The Owner Lessor hereby constitutes the Lease 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 Lessee with all terms
and provisions of the Facility Lease (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 Lease 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 Lessee
(with respect to Sections 4.12 and 8.1 hereof) and the
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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 Lessee (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) 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:
Montana OL[l/3/4] LLC
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to the Owner Participant:
Montana 0P3] LLC
c/▇ ▇▇▇▇ Atlantic Credit Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Asset Administrator
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If to the Lease Indenture Trustee:
The Chase Manhattan Bank
Capital Markets Fiduciary Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇/8
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Facility Lessee:
PPL Montana. LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President and General Counsel
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 Wilmington Trust Company ("Wilmington"), not individually or personally but
solely as trustee of the Owner Lessor under the LLC Agreement, 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 Wilmington, 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 Wilmington, 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 Wilmington, 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.
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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.
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 Montana are mandatorily applicable under the laws of the State
of Montana.
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 Lease 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 Lease 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 Lease 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 Lease 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 Lease 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 Lease 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 Lease Indenture Trustee or the Indenture Estate other
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than as contemplated by the preceding paragraph, make the election referred to
in Section 1111 (b)( 1 )(A)(i) of Title II 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 Lease
Indenture Trustee shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Lessor Notes any and all withholding taxes applicable thereto as
required by law. The Lease Indenture Trustee agrees (i) to act as such
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, (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 Lease Indenture
Trustee agrees to file any other information as it may be required to file under
United States law.
Section 9.15. Fixture Financing Statement. This Indenture also is
intended to serve as a fixture financing statement under the Montana Uniform
Commercial Code. In connection therewith, the following information is provided:
(a) Name and address of Debtor:
Montana 0L3 LLC
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(b) Tax ID Number of Debtor: 13-41-000-16
(c) Name and Address of Secured Party (from which information concerning
the security interest may be obtained):
The Chase Manhattan Bank, as Lease Indenture Trustee
Capital Markets Fiduciary Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(d) 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 Exhibit A hereto.
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(e) Recording: This Indenture is to be recorded in the real estate records
of Rosebud County, Montana.
(f) Type of Filing: This is a commercial filing under Section
30-9-401(1)(c).
(Remainder of Page Intentionally Left Blank)
51
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STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK)
The foregoing instrument was acknowledged before me this 19th day of July
2000, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President of WILMINGTON TRUST COMPANY, a Delaware
banking corporation, to be the free act and deed on behalf of the banking
corporation as the Lessor Manager under the LLC AGREEMENT dated as of July 13,
2000.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission Expires ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
___________________________________ No. 01DE5078255
Qualified in Queens County
Certificate Filed in New York County
Commission Expires May 19, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK)
The foregoing instrument was acknowledged before me this the 20th day of
July 2000, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President of THE CHASE MANHATTAN BANK, a
New York 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. 01DE5078255
Qualified in Queens County
Certificate Filed in New York County
Commission Expires May 19, 2001
Indenture of Trust, Mortgage and Security Agreement (BA 1/2)
57
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed on the day and year first above written.
MONTANA OL3 LLC,
By: Wilmington Trust Company,
not in its individual capacity, but
solely as the Lessor Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
as Lease Indenture Trustee,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Indenture of Trust, Mortgage and Security Agreement (BA 1/2)
58
APPENDIX A
================================================================================
DEFINITIONS
(BA1/2)
------------------------------------
COLSTRIP GENERATING ▇▇▇▇▇ ▇ ▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FACILITIES
================================================================================
59
APPENDIX A - DEFINITIONS
(BA1/2)
GENERAL PROVISIONS
In this Appendix A and each Operative Document (as hereinafter defined),
unless otherwise provided herein or therein:
(a) the terms set forth in this Appendix A or in any such Operative
Document shall have the meanings herein provided for and any term used in an
Operative Document and not defined therein or in this Appendix A but in another
Operative Document shall have the meaning herein or therein provided for in such
other Operative Document;
(b) any term defined in this Appendix A by reference to another
document, instrument or agreement shall continue to have the meaning ascribed
thereto whether or not such other document, instrument or agreement remains in
effect:
(c) words importing the singular include the plural and vice versa;
(d) words importing a gender include any gender;
(e) a reference to a part, clause, section, paragraph, article,
party, annex, appendix, exhibit, schedule or other attachment to or in respect
of an Operative Document is a reference to a part, clause, section, paragraph,
or article of, or a party, annex, appendix, exhibit, schedule or other
attachment to, such Operative Document unless, in any such case, otherwise
expressly provided in any such Operative Document;
(f) a reference to any statute, regulation, proclamation, ordinance
or law includes all statutes, regulations, proclamations, ordinances or laws
varying, consolidating or replacing the same from time to time, and a reference
to a statute includes all regulations, policies, protocols, codes, proclamations
and ordinances issued or otherwise applicable under that statute unless, in any
such case, otherwise expressly provided in any such statute or in such Operative
Document;
(g) a definition of or reference to any document, instrument or
agreement includes an amendment or supplement to, or restatement, replacement,
modification or renovation of, any such document, instrument or agreement unless
otherwise specified in such definition or in the context in which such reference
is used;
(h) a reference to a particular section, paragraph or other part of
a particular statute shall be deemed to be a reference to any other section,
paragraph or other part substituted therefor from time to time;
(i) if a capitalized term describes, or shall be defined by
reference to, a document, instrument or agreement that has not as of any
particular date been executed and delivered and such document, instrument or
agreement is attached as an exhibit to the
60
Participation Agreement (as hereinafter defined), such reference shall be deemed
to be to such form and, following such execution and delivery and subject to
paragraph (h) above. to the document, instrument or agreement as so executed and
delivered;
(j) a reference to any Person (as hereinafter defined) includes such
Person's successors and permitted assigns;
(k) any reference to "days" shall mean calendar days unless
"Business Days" (as hereinafter defined) are expressly specified:
(l) if the date as of which any right, option or election is
exercisable, or the date upon which any amount is due and payable, is stated to
be on a date or day that is not a Business Day, such right, option or election
may be exercised, and such amount shall be deemed due and payable, on the next
succeeding Business Day with the same effect as if the same was exercised or
made on such date or day (without, in the case of any such payment, the payment
or accrual of any interest or other late payment or charge, provided such
payment is made on such next succeeding Business Day);
(m) words such as "hereunder", "hereto", "hereof" and "herein" and
other words of similar import shall, unless the context requires otherwise,
refer to the whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof,
(n) a reference to "including" shall mean including without limiting
the generality of any description preceding such term, and for purposes hereof
and of each Operative Document the rule of ejusdem generis shall not be
applicable to limit a general statement, followed by or referable to an
enumeration of specific matters, to matters similar to those specifically
mentioned;
(o) all accounting terms not specifically defined herein or in any
Operative Document shall be construed in accordance with GAAP;
(p) unless the context or the specific provision otherwise requires,
whenever in the Operative Documents a provision requires that a Person have a
particular rating, such provision shall be deemed to mean that the senior long
term unsecured debt of such Person (or, in the case of PPL Montana, the senior
long term unsecured debt of PPL Montana or if no such debt is rated and the
Certificates are outstanding, the Certificates) shall have been rated the
specified rating by both Rating Agencies if such debt is then rated by both
Rating Agencies, or by one such Rating Agency if only rated by one of them; and
(q) unless the context or the specific provision otherwise requires,
whenever in the Operative Documents a provision requires that the rating of a
Person or the Lease Debt be confirmed, such provisions shall be deemed to mean
that both Rating Agencies shall have confirmed the rating of the senior long
term unsecured debt of such Person or the Lease Debt, if then rated by both
Rating Agencies, or by one such Rating Agency if only rated by one of them, a
copy of which confirmation shall be delivered by PPL Montana to the Owner
Participant, the Owner Lessor and, so long as the Lien of the Lease Indenture
shall not have been terminated or discharged, to the Lease Indenture Trustee and
shall be without indication that such Person or the Lease Debt, as the case may
be, has been placed on credit watch, credit review, or any similar
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status with negative implications or which does not indicate the direction of
the potential ratings change.
DEFINED TERMS
"Abstract of Lease" shall mean the Abstract of Facility Lease (BA1/2), dated as
of the Closing Date, between the Owner Lessor and PPL Montana, substantially in
the form of Exhibit B-2 to the Participation Agreement duly completed, executed
and delivered on the Closing Date.
"Acquired Indebtedness" shall mean, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person,
and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Actual Knowledge" shall mean, with respect to any Transaction Party, actual
knowledge of, or receipt of written notice by, an officer (or other employee
whose responsibilities include the administration of the Overall Transaction) of
such Transaction Party; provided, that neither the Lessor Manager nor the Trust
Company shall be deemed to have Actual Knowledge of any fact solely by virtue of
an officer of the Trust Company having actual knowledge of such fact unless such
officer is an officer in the Corporate Trust Administration Department of the
Trust Company.
"Additional Certificates" shall mean any additional certificates issued by the
Pass Through Trust in connection with the issuance of Additional Lessor Notes
relating thereto.
"Additional Equity Investment" shall mean the amount, if any, the Owner
Participant shall provide (in its sole and absolute discretion) to finance all
or a portion of the Owner Lessor's Percentage of the cost of any Modification
financed pursuant to Section 13.1 of the Participation Agreement.
"Additional Lessor Notes" shall have the meaning specified in Section 2.12 of
the Lease Indenture.
"Additional Subsidiary" shall mean a Subsidiary of PPL Montana designated as an
"Additional Subsidiary" in accordance with Section 6.8 of the Participation
Agreement.
"Advisors to the Facility Lessee" shall mean ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇ and Group
▇▇▇▇▇▇▇▇.
"Affiliate" of a particular Person shall mean any Person directly or indirectly
controlling, controlled by or under common control with such particular Person.
For purposes of this definition, "control" when used with respect to any
particular Person shall mean the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing; provided, however, that
under no circumstances shall the Trust Company be considered to be an Affiliate
of any of the Owner
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Lessor, the Lessor Manager, or the Owner Participant, nor shall any of the Owner
Lessor, the Lessor Manager, or the Owner Participant be considered to be an
Affiliate of the Trust Company.
"After-Tax Basis" shall mean, with respect to any payment to be received by any
Person, the amount of such payment (the base payment) supplemented by a further
payment (the additional payment) to that Person so that the sum of the base
payment plus the additional payment shall, after deduction of the amount of all
Federal) State and local income Taxes required to be paid by such Person in
respect of the receipt or accrual of the base payment and the additional payment
(taking into account any reduction in such income Taxes resulting from Tax
benefits realized or to be realized by the recipient as a result of the payment
or the event giving rise to the payment), be equal to the amount required to be
received. Such calculations shall be made on the basis of the highest applicable
Federal income tax statutory rate applicable to corporations for all relevant
periods and the highest applicable statutory income tax rates applicable to
corporations in the state and local taxing jurisdiction of the Facility for all
relevant periods and shall take into account the deductibility of State and
local income taxes for Federal income tax purposes.
"Allocated Rent" shall have the meaning specified in Section 3.3(c) of the
Facility Lease.
"Applicable Law" shall mean, without limitation, all applicable laws, including
all Environmental Laws, and treaties, judgments, decrees, injunctions, writs and
orders of any court, arbitration board or Governmental Entity and rules,
regulations, orders, ordinances, licenses and permits of any Governmental
Entity.
"Applicable Rate" shall mean the Prime Rate (as published in the Wall Street
Journal from time to time) plus 1 % per annum.
"Appraisal Procedure" shall mean (except with respect to the Closing Appraisal
and any appraisal to determine Fair Market Sales Value after a Lease Event of
Default shall have occurred and be continuing), an appraisal conducted by an
appraiser or appraisers in accordance with the procedures set forth in this
definition of "Appraisal Procedures." The Owner Participant and PPL Montana will
consult with the intent of selecting a mutually acceptable Independent
Appraiser. If a mutually acceptable Independent Appraiser is selected, the Fair
Market Rental Value or Fair Market Sales Value shall be determined by such
Independent Appraiser. If the Owner Participant and PPL Montana are unable to
agree upon a single Independent Appraiser within a 15-day period, one shall be
appointed by the Owner Participant, and one shall be appointed by PPL Montana
(or its designee), which Independent Appraisers shall attempt to agree upon the
value, period, amount or other determination that is the subject of the
appraisal. If either the Owner Participant or PPL Montana does not appoint its
appraiser, the determination of the other appraiser shall be conclusive and
binding on the Owner Participant and PPL Montana. If the appraisers appointed by
the Owner Participant and PPL Montana are unable to agree upon the value,
period, amount or other determination in question, such appraisers shall jointly
appoint a third Independent Appraiser or, if such appraisers do not appoint a
third Independent Appraiser, the Owner Participant and PPL Montana shall jointly
appoint the third Independent Appraiser. In such case, the average of the
determinations of the three appraisers shall be conclusive and binding on the
Owner Participant and PPL Montana, unless the determination of one appraiser is
disparate from the middle determination by more than twice the amount by which
the third determination is disparate from the middle determination, in which
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case the determination of the most disparate appraiser shall be excluded, and
the average of the remaining two determinations shall be conclusive and binding
on the Owner Participant and PPL Montana.
"Appraiser" shall mean Deloitte & Touche LLP Valuation Group.
"Asset Purchase Agreement" shall mean that certain asset purchase agreement
dated as of October 31, 1998, by and between PPL Global, Inc. and MPC.
"Asset Sale" shall mean the sale, lease, transfer, conveyance or other
disposition of any assets, including by way of the issue or sale by PPL Montana
or any of its Core Subsidiaries of equity interests in such Core Subsidiaries or
the designation of any Core Subsidiary as an Additional Subsidiary.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales: (a) transfers of assets among PPL Montana and any of its
wholly-owned Core Subsidiaries, (b) sales of inventory (including fuel and
coal), products or obsolete items and other similar dispositions and sales of
power in the ordinary course of business, (c) a transfer of ownership of the
▇▇▇▇ hydroelectric generating facility by PPL Montana or any Core Subsidiary to
the Confederated Salish and Kootenai Tribes or any successor in interest, (d)
sales of assets required to be made pursuant to any change in law, regulation or
any imposition of any conditions or requirements by the FERC or any other
Governmental Entity having or claiming jurisdiction over PPL Montana, its
Subsidiaries, or the Montana Assets, (e) an issuance of equity interests by a
wholly-owned Core Subsidiary to PPL Montana or to another wholly-owned Core
Subsidiary, (f) sale or liquidation of cash equivalents in the ordinary course
of business, (g) a Restricted Payment that is made in cash or cash equivalents
permitted by Section 6.2 of the Participation Agreement, and (h) Permitted
Investments other than those made in Additional Subsidiaries (unless made with
proceeds described in clause (7) of the definition of such term).
"Assigned Documents" shall have the meaning specified in clause (2) of the
Granting Clause of the Lease Indenture.
"Assignment and Assumption Agreement" shall mean an assignment and assumption
agreement in form and substance substantially in the form of Exhibit F to the
Participation Agreement.
"Assignment and Reassignment of Project Agreements" shall mean the Assignment
and Reassignment of Project Agreements (BA1/2), dated as of the Closing Date,
between PPL Montana and the Owner Lessor, substantially in the form of Exhibit D
to the Participation Agreement duly completed, executed and delivered pursuant
to which PPL Montana will assign to the Owner Lessor and the Owner Lessor will
reassign to PPL Montana, certain rights under the Ownership and Operating
Agreements 1-2 and the Common Facilities Agreement relating to the Undivided
Interest.
"Assumed Deductions" shall have the meaning specified in Section 1.1 of the Tax
Indemnity Agreement.
"Assumed Tax Rate" shall have the meaning specified in Section 1(a) of the Tax
Indemnity Agreement.
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"Authorized Agent" shall have the meaning specified in the Pass Through Trust
Agreement.
"Balance Sheet" shall mean the audited consolidated balance sheet of PPL Montana
and its Consolidated Subsidiaries as of December 31, 1999, which Balance Sheet
shall have been prepared in accordance with GAAP and utilizing assumptions made
in good faith and reasonable, as of the date of such Balance Sheet, and all
material assumptions with respect to such Balance Sheet are set forth therein.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as
amended from time to time, 11 U.S.C.ss.101 et seq.
"Basic Lease Rent" shall have the meaning specified in Section 3.3(a) of the
Facility Lease.
"Basic Lease Term" shall have the meaning specified in Section 3.2 of the
Facility Lease.
"Basic Site Lease Term" shall have the meaning specified in Section 2.2 of the
Site Lease and Sublease.
"Basic Site Sublease Term" shall have the meaning specified in Section 4.2 of
the Site Lease and Sublease.
"▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of Sale (BA1/2), dated as of the Closing
Date, between PPL Montana and the Owner Lessor, substantially in the form of
Exhibit A to the Participation Agreement duly completed, executed and delivered
on the Closing Date pursuant to which the Owner Lessor will acquire the
Undivided Interest from PPL Montana.
"Burdensome Termination Event" shall mean the occurrence of any event which
gives a Facility Lessee the right to terminate a Facility Lease pursuant to
Section 13.1 thereof
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day on
which commercial banking institutions are authorized or required by law,
regulation or executive order to be closed in New York, New York, the city and
the state in which the Corporate Trust Office of any applicable Lease Indenture
Trustee or Lessor Manager is located or the city and state in which the
Corporate Trust Office of the Pass Through Trustee is located.
"Capital Expenditures" shall mean expenditures made or liabilities incurred for
the acquisition of any fixed assets or improvements, replacements, substitutions
or additions thereto that have a useful life of more than one year.
"Cash Flow Available for Fixed Charges" for any period shall mean, without
duplication, (i) consolidated EBITDA of PPL Montana and its Core Subsidiaries
for such period, minus (ii) the portion of such consolidated EBITDA described in
the foregoing clause (i) that is attributable to extraordinary gains or other
nonrecurring items included in EBITDA (other than to the extent such
extraordinary gains or nonrecurring items are offset by extraordinary losses),
minus (iii) for each Core Subsidiary having an interest holder other than PPL
Montana or its Core Subsidiaries, the amount described in the foregoing clause
(i) attributable to such interests, plus (iv) EBITDA of any Additional
Subsidiary and the proceeds from any asset sales received by any Additional
Subsidiaries, in each case, to the extent such amount is distributed to PPL
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65
Montana or its Core Subsidiaries from such Additional Subsidiary during such
period (provided, however, that the amount described in this clause (iv) shall
not be included in the calculation of the Cash Flow Available for Fixed Charges
for any projected period), minus (v) Capital Expenditures made by PPL Montana
and its Core Subsidiaries during such period other than capital expenditures
financed with Indebtedness permitted under Sections 6.1(b)(i) or 7.1(b)(i) of
the Participation Agreement.
"Cash Flow to Fixed Charges Ratio" shall mean with respect to any Person for any
period, the ratio of (i) Cash Flow Available for Fixed Charges for such period
to (ii) Fixed Charges for such period.
"Certificate Purchase Agreement" shall mean the Certificate Purchase Agreement,
dated the Effective Date, between PPL Montana and the Initial Purchasers.
"Certificateholders" shall mean each of the holders of Certificates, and each of
such holder's successors and permitted assigns.
"Certificates" shall mean the 8.903% Pass Through Certificates issued on the
Closing Date and any certificates issued in replacement therefor pursuant to
Section 3.3, 3.4 or 3.5 of the Pass Through Trust Agreement.
"Certificates Register" shall mean the "Register" specified in Section 3.4 of
the Pass Through Trust Agreement.
"Change of Control" shall mean the consummation of any transaction or series of
related transactions (including any merger or consolidation) the result of which
is that any person (as such term is defined in Rule 13(d)(3) under the Exchange
Act), other than (a) PPL Corporation or any of its successors into which PPL
Corporation has consolidated or merged, (b) any person who comes to be a
beneficial owner (as defined below) directly or indirectly, of more than 50% of
the voting power of or economic interest in PPL Corporation, or (c) any of PPL
Corporation's direct or indirect wholly-owned subsidiaries, becomes the
"beneficial owner" (as such term is defined in Rule 13(d)(3) under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the voting power of or
economic interests in PPL Montana; provided that a Change of Control shall be
deemed not to have occurred if ▇▇▇▇▇'▇ and S&P confirm that the then existing
ratings of the Certificates will not be lowered as a result of any of the
foregoing events.
"Change of Control Premium" shall mean 1%.
"Claim" shall mean any liability (including in respect of negligence (whether
passive or active or other torts), strict or absolute liability in tort or
otherwise, warranty, latent or other defects (regardless of whether or not
discoverable), statutory liability, property damage, bodily injury or death),
obligation, loss, settlement, damage, penalty, claim, action, suit, proceeding
(whether civil or criminal), judgment, penalty, fine and other legal or
administrative sanction, judicial or administrative proceeding, cost, expense or
disbursement, including reasonable legal,
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66
investigation and expert fees, expenses and reasonable related charges, of
whatsoever kind and nature.
"Closing" shall have the meaning specified in Section 2.2(a) of the
Participation Agreement.
"Closing Appraisal" shall mean the appraisal, dated the Closing Date, prepared
by the Appraiser with respect to the Owner Lessor's Interest, which Closing
Appraisal shall:
(a) Determine the Purchase Price, which shall be the fair market
value of the Undivided Interest on the Closing Date;
(b) Determine the economic useful life of ▇▇▇▇ ▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇,
and the Facility, and confirm that (i) ▇▇▇▇ ▇, ▇▇▇▇ ▇, ▇▇▇▇ ▇, and the Facility
each are reasonably estimated on the Closing Date to have a remaining economic
useful life equal to 133.33% of the Fixed Lease Term, and (ii) each of the Units
1 and 2 Interest and the Unit 3 Interest shall have a fair market value at the
end of the Basic Lease Term equal to at least 20% of its Purchase Price, without
regard to inflation or deflation during the Basic Lease Term;
(c) Confirm that it is reasonable to expect that upon expiration or
termination of the Facility Lease, it will be commercially feasible for a party
other than the Facility Lessee to operate the Facility;
(d) Allocate the percentage of the Purchase Price eligible for each
category of Depreciation Deduction;
(e) Confirm that each Unit and the Facility is an integrated
facility;
(f) Determine that none of the Renewal Lease Terms is likely to be
exercised; and
(g) Address any other matters that the Owner Participant shall
reasonably request.
"Closing Date" shall have the meaning specified in Section 2.2(a) of the
Participation Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute.
"Colstrip Facility Leases" "shall mean the Facility Lease and the Other Facility
Leases.
"Colstrip Project" shall mean the four unit coal-fired steam electric generating
project located in Rosebud County, Montana, consisting of Units 1 and 2 and
Units 3 and 4, the Common Facilities, and all other equipment or facilities
required for the generation of electricity at such units and the Colstrip Site.
"Colstrip Site" shall mean the Unit Sites and the Common Facilities Site.
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"Colstrip Unit 1" shall mean Unit 1 and the Related Common Facilities.
"Colstrip Unit 2" shall mean Unit 2 and the Related Common Facilities.
"Colstrip Unit 3" shall mean Unit 3 and the Related Common Facilities.
"Colstrip Unit 4" shall mean Unit 4 and the Related Common Facilities.
"Colstrip Units 1 and 2" shall mean, collectively. Colstrip ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇.
"Colstrip Units 3 and 4" shall mean. collectively, Colstrip ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇.
"Common Facilities" shall mean the Common Facilities 1-2 and the Common
Facilities 1-2-3-4.
"Common Facilities 1-2" shall mean all facilities, improvements, fixtures and
equipment, constructed or installed for use by Units 1 and 2 in common and
described as such on Exhibit C to the ▇▇▇▇ of Sale but excluding therefrom the
Transmission Facilities.
"Common Facilities 1-2 Site" shall mean the land described as such on Exhibit A
to the ▇▇▇▇ of Sale, and all rights of way, easements, permits and other
appurtenances to such land (including the Water Rights) described on such
Exhibit or otherwise, and specifically excluding the Transmission Facilities.
"Common Facilities 1-2-3-4" shall mean all facilities, improvements, fixtures
and equipment constructed or installed for use by Units I and 2 and Units 3 and
4 in common on the Colstrip Site and described as such on Exhibit C to the ▇▇▇▇
of Sale but excluding therefrom the Transmission Facilities.
"Common Facilities 1-2-3-4 Site" shall mean the land described as such on
Exhibit A to the ▇▇▇▇ of Sale, and all rights of way, easements, permits and
other appurtenances to such land (including the Water Rights) described on such
Exhibit or otherwise, and specifically excluding the Transmission Facilities.
"Common Facilities Agreement" shall mean the Common Facilities Agreement, dated
as of May 6, 1981 among MPC, Puget, Puget Colstrip Construction Company, Avista
Corporation (successor to The Washington Water Power Company), Portland and
Pacific Power & Light Company, relating to the ownership and operation of the
Common Facilities 1-2-3-4, as the same has been or may be amended, modified or
supplemented from time to time.
"Common Facilities Percentage" shall mean, with respect to the Related Common
Facilities for any Unit, the undivided interest in such Related Common
Facilities related to such Unit conveyed to the Owner Lessor pursuant to the
▇▇▇▇ of Sale.
"Common Facilities Site" shall mean a collective reference to the Common
Facilities 1-2 Site and the Common Facilities 1-2-3-4 Site.
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"Competitor" shall have the meaning specified in Section 9.1(b) of the
Participation Agreement.
"Component" shall mean any appliance, part, instrument, appurtenance. accessory,
furnishing, equipment or other property of whatever nature that may from time to
time be incorporated in the Facility, except to the extent constituting
Modifications.
"Consolidated Subsidiary" shall mean with respect to any Person at any date any
Subsidiary or other entity the accounts of which would be consolidated in
accordance with GAAP with those of such Person in its consolidated financial
statements as of such date.
"Consolidated Tangible Net Assets" shall mean (at any date of determination) (i)
the total net assets of PPL Montana and its Core Subsidiaries determined in
accordance with GAAP, excluding, however, from the determination of total net
assets (a) goodwill, organizational expenses, research and product development
expenses, trademarks, tradenames, copyrights, patents, patent applications,
licenses and rights in any thereof and other similar intangibles, (b) all
deferred, charges or unamortized debt discount and expenses, (c) all reserves
carried and not deducted from assets, (d) securities which are not readily
marketable, (e) cash held in sinking or other analogous funds established for
the purpose of redemption, retirement or prepayment of capital stock or other
equity interests or Indebtedness, (f) any write-up in the book value of any
assets resulting from a revaluation thereof subsequent to the Closing Date, and
(g) any items not included in clauses (a) through (f) above which are treated as
intangibles in conformity with GAAP, plus (ii) the aggregate purchase price paid
by the Owner Lessor and the Other Owner Lessors pursuant to the ▇▇▇▇ of Sale and
the Other Bills of Sale respectively, plus (iii) the aggregate net book value of
all asset sales or dispositions made by PPL Montana or any of its Core
Subsidiaries since the Closing Date to the extent that the proceeds thereof or
other consideration received therefor are not invested in any Permitted Business
of PPL Montana or any of its Core Subsidiaries and are not retained by PPL
Montana or any of its Core Subsidiaries, minus (iv) for each Core Subsidiary
having an interest holder other than PPL Montana or its Core Subsidiaries, the
amount described in the foregoing clauses (i) and (iii) attributable to such
interest.
"Core Subsidiary" shall mean each Subsidiary of PPL Montana other than
Additional Subsidiaries thereof.
"Corporate Trust Office" shall have the meaning specified in the Pass Through
Trust Agreement.
"Credit Agreement" shall mean that certain Credit Agreement, dated as of
November 16, 1999, among PPL Montana. The Chase Manhattan Bank, as
Administrative Agent, Chase Securities, Credit Suisse First Boston, UBS Warburg
LLC (successor to Warburg Dillon, Read LLC), and the other lenders a party
thereto, as the same may be amended from time to time.
"Debt Covenant Termination Date" shall have the meaning specified in Section 6
of the Participation Agreement.
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"Debt Portion of Rent" shall mean for any period, the portion of Periodic Lease
Rent payable under the Facility Lease equal to the scheduled principal and
interest due and payable on the Lessor Note during such period.
"Debt Portion of Termination Value" in respect of any determination of
Termination Value or amount determined by reference to Termination Value payable
pursuant to the Operative Documents shall mean an amount equal to the balance,
including scheduled (in accordance with the payment terms of the Lessor Note)
accrued interest, on the Lessor Note scheduled (in accordance with the payment
terms of the Lessor Note) to be outstanding on such date of determination.
"Debt to Capital Ratio" shall mean, with respect to PPL Montana and its Core
Subsidiaries, the ratio as of the end of the last fiscal quarter for which
internal financial statements are available of (i) the aggregate principal
amount of Indebtedness of such Persons then outstanding to (ii) Total
Capitalization.
"Deduction Loss" shall have the meaning specified in Section 5(a) of the Tax
Indemnity Agreement.
"Depreciation Deductions" shall have the meaning specified in Section 1(a) of
the Tax Indemnity Agreement.
"Discount Rate" shall mean PPL Montana's incremental borrowing rate as
determined by PPL Montana in accordance with SFAS 13.
"Distribution" shall mean, in respect of any Person, any dividend, distribution
or payment (including by way of redemption, repurchase, retirement, return or
repayment) in respect of shares of capital stock of such Person.
"Dollars" or the sign "$" shall mean United States dollars or other lawful
currency of the United States.
"DTC" shall mean The Depository Trust Company, a New York corporation.
"EBITDA" shall mean, with respect to any Person for any period, the income (or
loss) before interest and taxes of such Person, and, to the extent the following
items were included in determining such income (or loss), (i) plus depreciation,
amortization and other similar non-cash charges and reserves, (ii) minus
non-cash non-recurring income items, including extraordinary non-cash gains (or
losses), (iii) plus non-cash restructuring charges or other non-cash
non-recurring expense items and non-cash charges representing allocations from
Affiliates and (iv) plus GAAP lease rent expense.
"Effective Date" shall mean July 13, 2000, the date the Participation Agreement
shall have been executed and delivered by the parties thereto.
"Effective Rate" shall have the meaning specified in Section 5(a) of the Tax
Indemnity Agreement.
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"Enforcement Notice" shall have the meaning specified in Section 5.1 of the
Lease Indenture.
"Engineering Consultant" shall mean ▇.▇. ▇▇▇▇. Inc.
"Engineering Report" shall mean the report of the Engineering Consultant, dated
July 13, 2000, addressed to the Owner Participant in substantially the form of
the Independent Engineer's Report attached as Appendix A to the Offering
Memorandum.
"Environmental Condition" shall mean any action, omission, event, condition or
circumstance, including the presence of any Hazardous Substance, that does or
reasonably could (i) require assessment, investigation, abatement, correction,
removal or remediation, (ii) give rise to any obligation or liability of any
nature (whether civil or criminal, arising under a theory of negligence or
strict liability, or otherwise) under any Environmental Law, (iii) create or
constitute a public or private nuisance or trespass, or (iv) constitute a
violation of or noncompliance with any Environmental Law.
"Environmental Consultant" shall mean Pilko & Associates, Inc.
"Environmental Laws" shall mean any federal, state or local laws, ordinances,
rules, orders, statutes, decrees, judgments, injunctions, directives, permits,
licenses, approvals, codes and regulations relating to the environment, human
health, natural resources or Hazardous Substances, as each may from time to time
be amended, supplemented or supplanted.
"Environmental Report" shall have the meaning specified in Section 4(n) of the
Participation Agreement.
"Equity Contribution Agreement" shall mean the Equity Contribution Agreement
dated as of July 20, 2000, between PPL Corporation and PPL Montana.
"Equity Covenant Termination Date" shall have the meaning specified in Section 7
of the Participation Agreement.
"Equity Investment" shall mean the amount of $31,151,219.51.
"Equity Portion of Periodic Lease Rent" shall mean for any Rent Payment Date the
difference between (i) Periodic Lease Rent scheduled to be paid under the
Facility Lease on such Rent Payment Date and (ii) the Debt Portion of Rent.
"Equity Portion of Termination Value" in respect of any determination of
Termination Value or amount determined by reference to Termination Value payable
pursuant to the Operative Documents shall mean an amount equal to the excess, if
any, of (i) the Termination Value on the date of determination, over (ii) the
Debt Portion of Termination Value.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" shall mean an Event of Default under the Pass Through Trust
Agreement.
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"Event of Loss" shall mean, with respect to either of Unit 1 or Unit 2. or in
the case of clause (d), both of Units 1 and 2, any of the following events:
(a) loss of such Unit or use thereof due to destruction or damage to
such Unit or the Related Common Facilities that is beyond economic repair or
that renders such Unit permanently unfit for normal use;
(b) damage to such Unit or the Related Common Facilities that
results in an insurance settlement with respect to such Unit on the basis of a
total loss, or an agreed constructive or a compromised total loss;
(c) seizure, condemnation, confiscation or taking of, or requisition
of title to or use of, such Unit by any Governmental Entity (a "Requisition")
following exhaustion of all permitted appeals or an election by PPL Montana not
to pursue such appeals (provided that no such contest shall extend beyond the
earlier of (x) the date which is one year after the loss of such title, or (y)
the date which is 36 months prior to the end of the Basic Lease Term or any
Renewal Lease Term then in effect or elected by PPL Montana), but, in any case
involving Requisition of use but not of title, only if such Requisition of use
continues beyond the Basic Lease Term or any Renewal Lease Term then in effect
or elected by PPL Montana; and
(d) if elected by the Owner Participant, and only in such case as
termination of the Facility Lease and transfer of the Undivided Interest to PPL
Montana shall remove the basis of the regulation described below, subjection of
the Owner Participant's interest in the Unit(s) to any rate of return regulation
by any Governmental Entity, or subjection of the Owner Participant or the Owner
Lessor to any other public utility regulation of any Governmental Entity or law
that in the reasonable opinion of the Owner Participant is burdensome, in either
case by reason of the participation of the Owner Lessor or the Owner Participant
in the transaction contemplated by the Operative Documents, and not, in any
event, as a result of (A) investments, loans or other business activities of the
Owner Participant or its Affiliates in respect of equipment or facilities
similar in nature to the Facility or any part thereof or in any other
electrical, steam, cogeneration or other energy or utility related equipment or
facilities or the general business or other activities of the Owner Participant
or Affiliates or the nature of any of the properties or assets from time to time
owned, leased, operated, managed or otherwise used or made available for use by
the Owner Participant or its Affiliates or (B) a failure of the Owner
Participant to perform routine, administrative or ministerial actions the
performance of which would not subject the Owner Participant to any adverse
consequence (in the reasonable opinion of the Owner Participant acting in good
faith), provided that PPL Montana, the Owner Lessor and Owner Participant agree
to cooperate and to take reasonable measures to alleviate the source or
consequence of any regulation constituting an Event of Loss under this paragraph
(d) (a "Regulatory Event of Loss"), at the cost and expense of PPL Montana and
so long as there shall be no adverse consequences to the Owner Lessor or Owner
Participant as a result of such cooperation or the taking of reasonable
measures.
"Excepted Payments" shall mean and include (i)(A) any indemnity (whether or not
constituting Supplemental Lease Rent and whether or not a Lease Event of Default
exists) payable to either the Trust Company, the Lessor Manager or the Owner
Participant or to their respective Indemnitees and successors and permitted
assigns (other than the Lease Indenture Trustee)
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pursuant to Section 2.3, 11.1, 11.2, 13.1 or 13.2 of the Participation
Agreement, Section 5.1 of the LLC Agreement, and any payments under the Tax
Indemnity Agreement or (B) any amount payable by PPL Montana to the Owner
Lessor or the Owner Participant to reimburse any such Person for its costs and
expenses in exercising its rights under the Operative Documents, (ii)(A)
insurance proceeds, if any, payable to the Owner Lessor or the Owner Participant
under insurance separately maintained by the Owner Lessor or the Owner
Participant with respect to the Facility as permitted by Section 11.5 of the
Facility Lease or (B) proceeds of personal injury or property damage liability
insurance maintained under any Operative Document for the benefit of the Owner
Lessor or the Owner Participant, (iii) any amount payable to the Owner
Participant as the purchase price of the Owner Participant's right and interest
in the Member Interest, (iv) any amounts payable to the Owner Participant upon
exercise by PPL Montana of the Special Lessee Transfer pursuant to Section 15.1
of the Participation Agreement, (v) all other fees expressly payable to the
Owner Participant under the Operative Documents, and (vi) any payments in
respect of interest, or any payments made on an After-Tax Basis, to the extent
attributable to payments referred to in clause (i) through (v) above that
constitute Excepted Payments.
"Excepted Rights" shall have the meaning specified in Section 5.6 of the Lease
Indenture.
"Excess Amount" shall have the meaning specified in Section 18.3 of the
Participation Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Property" shall mean Excepted Payments and Excepted Rights,
collectively.
"Excluded Taxes" shall have the meaning specified in Section 11.2(b) of the
Participation Agreement.
"Existing Indebtedness" shall mean, with respect to any Person, Indebtedness of
such Person in existence at the time of the Closing.
"Expiration Date" shall mean July 20, 2036, the last day of the Basic Lease
Term.
"Facility" shall mean a collective reference to Colstrip Units 1 and 2.
"Facility Lease" shall mean the Facility Lease Agreement (BA1/2), dated as of
the Closing Date, between the Owner Lessor and PPL Montana, substantially in the
form of Exhibit B-1 to the Participation Agreement duly completed, executed and
delivered on the Closing Date pursuant to which the Owner Lessor will lease the
Undivided Interest to PPL Montana.
"Facility Lease Term" shall mean the term of the Facility Lease, including the
Interim Lease Term, the Basic Lease Term and all Renewal Lease Terms.
"Facility Lessee" shall mean PPL Montana as lessee under the Facility Lease.
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"Facility Lessee's Interest" shall mean the Facility Lessee's right, title and
interest in and to the Undivided Interest under the Facility Lease and the
Ground Interest under the Site Lease and Sublease.
"Facility Site Sublease" shall mean the sublease described in Section 4.1 of the
Site Lease and Sublease.
"Fair Market Rental Value" or "Fair Market Sales Value" shall mean with respect
to any property or service as of any date, the cash rent or cash price
obtainable in an arm's length lease, sale or supply, respectively, between an
informed and willing lessee or purchaser under no compulsion to lease or
purchase and an informed and willing lessor or seller or supplier under no
compulsion to lease or sell or supply of the property or service in question,
and shall, in the case of any Unit Interest or an Owner Lessor's Interest, be
determined (except pursuant to Section 17 of the Facility Lease or as otherwise
provided below or in the Operative Documents) on the basis that (i) the
conditions contained in Sections 7 and 8 of the Facility Lease shall have been
complied with in all respects, (ii) the lessee or buyer shall have rights in, or
an assignment of, the Operative Documents to which the Owner Lessor is a party
and the obligations relating thereto, (iii) the Unit Interest or the Owner
Lessor's Interest, as the case may be, is free and clear of all Liens (other
than Owner Lessor's Liens, Owner Participant's Liens and Indenture Trustee's
Liens), (iv) taking into account the remaining term of the Site Lease and
Sublease, and (v) in the case the Fair Market Rental Value, taking into account
the terms of the Facility Lease and the other Operative Documents. If the Fair
Market Sales Value of the Owner Lessor's Interest is to be determined during the
continuance of a Lease Event of Default or in connection with the exercise of
remedies by the Owner Lessor pursuant to Section 17 of the Facility Lease, such
value shall be determined by an appraiser appointed solely by the Owner Lessor
on an "as-is", "where-is" and "with all faults" basis and shall take into
account all Liens (other than Owner Lessor's Liens, Owner Participant's Liens
and Indenture Trustee's Liens); provided, however, in any such case where the
Owner Lessor shall be unable to obtain constructive possession sufficient to
realize the economic benefit of the Owner Lessor's Interest, Fair Market Sales
Value of the Owner Lessor's Interest shall be deemed equal to $0. If in any case
other than in the preceding sentence the parties are unable to agree upon a Fair
Market Sales Value of the Owner Lessor's Interest within 30 days after a request
therefor has been made, the Fair Market Sales Value of the Owner Lessor's
Interest shall be determined by appraisal pursuant to the Appraisal Procedures.
Any fair market value determination of a Severable Modification shall take into
consideration any liens or encumbrances to which the Severable Modification
being appraised is subject and which are being assumed by the transferee.
"Federal Power Act" shall mean the Federal Power Act, as amended.
"FERC" shall mean the Federal Energy Regulatory Commission of the United States
or any successor or predecessor agency thereto.
"FERC EWG (Owner Lessor) Order" shall mean the order issued by the FERC on
February 14, 2000, in Docket No. EGOO-67-000 granting to the Owner Lessor
"exempt wholesale generator" status under the Holding Company Act.
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"FERC EWG (PPLM) Order" shall mean the order issued by the FERC on September
24, 1999, in Docket No. EG99-185-000 granting to PPL Montana "exempt wholesale
generator" status under the Holding Company Act.
"FERC OATT Order" shall mean the Order issued by the FERC on December 29, 1999,
in Docket No.EROO-417-000 accepting for filing under Section 205 of the Federal
Power Act PPL Montana's open access transmission tariff.
"FERC Orders" shall mean, collectively, the FERC EWG (PPLM) Order, the FERC
Section 203 Order, the FERC Part II Order, the FERC Section 205 Order, the FERC
Waiver Order, the FERC EWG (Owner Lessor) Order, and the FERC OATT Order.
"FERC (Owner Lessor) EWG Notice" shall mean the notification of no material
change in the facts dated as of July 20, 2000, to be filed with the FERC in
Docket Nos. ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇-▇▇, and
EGOO-72 with respect to "exempt wholesale generator" status under the Holding
Company Act in compliance with Section 365.8 of the FERC's regulations.
"FERC Part II Order" shall mean the order issued by the FERC on June 22, 1999,
in Docket No. EC99-36-000, granting approval under Section 203 of the Federal
Power Act for the transfer of jurisdictional facilities from MPC to PPL Montana.
"FERC Section 203 Order" shall mean the order issued by the FERC on September
22, 1999, in Docket No. EC99-95-000, granting approval under Section 203 of the
Federal Power Act for the sale and leaseback of the FERC jurisdictional
facilities to the Owner Lessor by PPL Montana.
"FERC Section 205 Order" shall mean the order issued by the FERC on August 24,
1999, in Docket No. ER99-3491-000, granting approval for the blanket issuance of
securities or assumption of liabilities under Section 204 of the Federal Power
Act by PPL Montana and granting approval for PPL Montana to sell power at market
based rates under Section 205 of the Federal Power Act.
"FERC Waiver Order" shall mean the Order issued by the FERC on September 17,
1999, in Docket No. EL99-79-000, disclaiming jurisdiction under Section 201(b)
of the Federal Power Act over the Owner Lessor, the Lessor Manager and the Owner
Participant.
"Final Determination" shall have the meaning specified in Section 9 of the Tax
Indemnity Agreement.
"First Wintergreen Renewal Lease Term" shall have the meaning specified in
Section 15.1 of the Facility Lease.
"Fixed Charges" shall mean, with respect to PPL Montana and its Core
Subsidiaries for any period, the sum, without duplication, of (i) the aggregate
amount of interest expense with respect to Indebtedness of such Persons for such
period, including (A) the net costs under interest rate hedge agreements, (B)
all capitalized interest (except to the extent that such interest is either (x)
not paid in cash or (y) if paid in cash, is paid solely with the proceeds of the
Indebtedness in
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respect of which such interest accrued), and (C) the interest portion of any
deferred payment obligation; (ii) the aggregate amount of all mandatory
scheduled payments (whether designated as payments or prepayments) and sinking
fund payments with respect to principal of any Indebtedness of such Persons; and
(iii) the aggregate amount of all payments due under the Facility Lease, in each
case, Scheduled to be Paid.
"Fixed Lease Term" shall mean the Basic Lease Term and the Interim Lease Term.
"FMV Renewal Lease Term" shall have the meaning specified in Section 15.3 of the
Facility Lease.
"Fuel Consultant" shall mean ▇▇▇▇ ▇. ▇▇▇▇ Company.
"Fuel Report" shall mean the Report of the Fuel Consultant, dated June 22, 2000,
addressed to the Owner Participant in substantially the form of the Independent
Fuel Consultant's Report attached as Appendix C to the Offering Memorandum.
"GAAP" shall mean generally accepted accounting principles used in the United
States consistently applied.
"Governmental Entity" shall mean and include any national government, any
political subdivision of a national government or of any state, county or local
jurisdiction therein or any board, commission, department, division, organ,
instrumentality, court or agency of any thereof.
"Ground Interest" shall mean the undivided interest in the Units 1 and 2 Site
and the Common Facilities Site leased to the Owner Lessor pursuant to the Site
Lease and Sublease, and shall consist of an undivided Owner Lessor's Percentage
of (i) a 50% undivided interest in and to the ▇▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇▇, (▇▇) a 50%
undivided interest in and to the Common Facilities 1-2 Site, and (iii) 50% of
the undivided interest in and to the Common Facilities 1-2-3-4 allocated to
Units 1 and 2 pursuant to the Common Facilities Agreement.
"Ground Lessee" shall mean the Owner Lessor as lessee of the Ground Interest
under the Site Lease and Sublease.
"Ground Lessor" shall mean PPL Montana as lessor of the applicable Ground
Interest under the Site Lease and Sublease.
"Ground Lessor's Release Rights" shall have the meaning specified in Section 6.2
of the Site Lease and Sublease.
"Ground Sublessee" shall mean PPL Montana as sublessee of the applicable Ground
Interest under the Site Lease and Sublease.
"Ground Sublessor" shall mean the Owner Lessor as sublessor of the applicable
Ground Interest under the Site Lease and Sublease.
"Guarantor" shall mean ▇▇▇▇ Atlantic Credit Corporation.
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"Guaranty" shall mean the OP Parent Guaranty or any other guaranty agreement
entered into pursuant to Section 9.1 of the Participation Agreement in form and
substance substantially in the form of Exhibit G to the Participation Agreement.
"Hazardous Substance" shall mean any pollutant, contaminant, hazardous
substance, hazardous waste, toxic substance, chemical substance, extremely
hazardous substance, petroleum or petroleum-derived substance, waste, or
additive, asbestos, PCBs, radioactive material, corrosive, explosive, flammable
or infectious material, lead, radon or other compound, element, material or
substance in any form whatsoever (including products) defined, regulated,
restricted or controlled by or under any Environmental Law.
"Holding Company Act" shall mean the Public Utility Holding Company Act of 1935,
as amended.
"Inclusion Loss" shall have the meaning specified in Section 5(a) of the Tax
Indemnity Agreement.
"Indebtedness" of any Person shall mean (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, (iv) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (v)
all Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person under acceptance, letter of credit or similar
facilities, (vii) all unconditional obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock or
other equity interests of such Person or any warrants, rights or options to
acquire such capital stock or other equity interests, (viii) all Indebtedness of
any other Person of the type referred to in clauses (i) through (vii) guaranteed
by such Person or for which such Person shall otherwise (including pursuant to
any keepwell, makewell or similar arrangement) become directly or indirectly
liable, and (ix) all third party Indebtedness of the type referred to in clauses
(i) through (vii) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any lien or
security interest on property (including accounts and contract rights) owned by
the Person whose Indebtedness is being measured, even though such Person has not
assumed or become liable for the payment of such third party Indebtedness, the
amount of such obligation being deemed to be the lesser of the value of such
property or the amount of the obligation so secured.
"Indemnitee" shall have the meaning specified in Section 11.1(a) of the
Participation Agreement.
"Indenture Estate" shall have the meaning specified in the Granting Clause of
the Lease Indenture.
"Indenture Trustee's Liens" shall mean any Lien on the Lessor Estate or any
part thereof arising as a result of (i) Taxes against or affecting the Lease
Indenture Trustee, or any Affiliate thereof that is not related to, or that is
in violation of, any Operative Document or the
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transactions contemplated thereby, (ii) Claims against or any act or omission of
the Lease Indenture Trustee, or Affiliate thereof that is not related to, or
that is in violation of, any Operative Document or the transactions contemplated
thereby or that is in breach of any covenant or agreement of the Lease Indenture
Trustee specified therein, (iii) Taxes imposed upon the Lease Indenture Trustee,
or any Affiliate thereof that are not indemnified against by PPL Montana
pursuant to any Operative Document, or (iv) Claims against or affecting the
Lease Indenture Trustee, or any Affiliate thereof arising out of the voluntary
or involuntary transfer by the Lease Indenture Trustee of any portion of the
interest of the Lease Indenture Company or the Lease Indenture Trustee in the
Lessor Estate, other than pursuant to the Operative Documents.
"Independent Appraiser" shall mean a disinterested, licensed industrial property
appraiser who is a Member of the Appraisal Institute having experience in the
business of evaluating facilities similar to the Facility.
"Initial Purchasers" shall mean Chase Securities Inc., Credit Suisse First
Boston Corporation, UBS Warburg LLC, TD Securities (USA) Inc.
"Interest Deductions" shall have the meaning specified in Section 1.1 of the
Tax Indemnity Agreement.
"Interim Lease Rent" shall have the meaning specified in Section 3.3(a) of the
Facility Lease.
"Interim Lease Term" shall have the meaning specified in Section 3.1 of the
Facility Lease.
"Investment" shall mean with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, equity interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If PPL Montana
or any Core Subsidiary of PPL Montana sells or otherwise disposes of any equity
interests of any direct or indirect Core Subsidiary of PPL Montana such that,
after giving effect to any such sale or disposition, such Person is no longer a
Core Subsidiary of PPL Montana, PPL Montana or such Core Subsidiary shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the equity interests of such Core Subsidiary
not sold or disposed of in an amount determined as provided in Section 6.2 or
Section 7.2 of the Participation Agreement, as the case may be. The acquisition
by PPL Montana or any Core Subsidiary of PPL Montana of a Person that holds an
Investment in a third Person shall be deemed to be an Investment by PPL Montana
or such Core Subsidiary in such third Person in an amount equal to the fair
market value of the Investment held by the acquired Person in such third Person
in an amount determined as provided in Section 6.2 or Section 7.2 of the
Participation Agreement, as the case may be.
"IRS" shall mean the Internal Revenue Service of the United States Department of
Treasury or any successor agency.
"Lease Debt" shall mean the debt evidenced by the Certificates, and other debt
issued pursuant to Section 13 of the Participation Agreement.
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"Lease Debt Rate" shall mean the interest rate under an applicable Lessor Note.
"Lease Event of Default" shall have the meaning specified in Section 16 of the
Facility Lease.
"Lease Indenture" shall mean the Indenture of Trust, Mortgage and Security
Agreement, dated as of the Closing Date, between the Owner Lessor and the Lease
Indenture Trustee, substantially in the form of Exhibit E to the Participation
Agreement duly completed, executed and delivered on the Closing Date pursuant to
which the Owner Lessor will issue the Lessor Note.
"Lease Indenture Bankruptcy Default" shall mean any event or occurrence, which,
with the passage of time or the giving of notice or both, would become a Lease
Indenture Event of Default under Section 4.1(e) or (f) of the Lease Indenture.
"Lease Indenture Event of Default" shall have the meaning specified in Section
4.2 of the Lease Indenture.
"Lease Indenture Payment Default" shall mean any event or occurrence, which,
with the passage of time or the giving of notice or both, would become a Lease
Indenture Event of Default under Section 4.2(b) of the Lease Indenture.
"Lease Indenture Trustee" shall mean The Chase Manhattan Bank, not in its
individual capacity, but solely as Lease Indenture Trustee under the Lease
Indenture, and each other Person who may from time to time be acting as Lease
Indenture Trustee in accordance with the provisions of the Lease Indenture.
"Lease Indenture Trustee Office" shall mean the office to be used for notices to
the Lease Indenture Trustee from time to time pursuant to Section 9.5 of the
Lease Indenture.
"Lease Indenture Trustee's Account" shall mean the account specified on Schedule
11 to the Participation Agreement or such other account of the Lease Indenture
Trustee, as the Lease Indenture Trustee may from time to time specify in a
notice to the other parties to the Participation Agreement.
"Lease Obligations" shall mean, without duplication, (i) indebtedness
represented by obligations under a lease that is required to be capitalized for
financial reporting purposes and (ii) with respect to noncapital leases of
electric generating facilities (A) non-recourse indebtedness of the lessor in
such a lease, or (B) if such amount is indeterminable, then the present value,
determined using a discount rate equal to the incremental borrowing rate (as
defined in SFAS No. 13) of the lessee under such a lease, of rent obligations
under such lease.
"Lease Payment Obligations" shall mean, without duplication, with respect to any
Person for any period, (i) the interest component of all Lease Obligations of
such Person that are described in clause (i) of the definition of "Lease
Obligations" and that are Scheduled to be Paid during such period, plus (ii) the
principal portion of all Lease Obligations of such Person that are described in
clause (i) of the definition of "Lease Obligations" that are Scheduled to be
Paid during such period, plus (iii) all rent payment obligations relating to
Lease Obligations of such Person described in clause (ii) of the definition of
"Lease Obligations" and that are Scheduled to be Paid during such period.
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"Lessee Action" shall have the meaning specified in Section 5(a) of the Tax
Indemnity Agreement.
"Lessee Person" shall have the meaning specified in Section 4(d) of the Tax
Indemnity Agreement.
"Lessee Section 467 Interest" shall have the meaning set forth in Section 3.3(c)
of the Facility Lease.
"Lessee Section 467 Loan Balance" shall have the meaning ascribed to that term
in the definition of "Section 467 Loan Balance."
"Lessor Estate" shall mean all the estate, right, title and interest of the
Owner Lessor in, to and under the Undivided Interest, the Ground Interest, the
Operative Documents, and the Project Agreements, including all funds advanced to
the Owner Lessor by the Owner Participant, all installments and other payments
of Basic Lease Rent, Supplemental Lease Rent, Termination Value under the
Facility Lease, condemnation awards, purchase price, sale proceeds, insurance
proceeds and all other proceeds, rights and interests of any kind for or with
respect to the estate, right, title and interest of the Owner Lessor in, to and
under the Undivided Interest, the Ground Interest, the Operative Documents, and
the Project Agreements, and any of the foregoing, but shall not include Excluded
Property.
"Lessor Manager" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity, but solely as Independent Manager
under the LLC Agreement and each other Person that may from time to time be
acting as Independent Manager in accordance with the provisions of the LLC
Agreement.
"Lessor Note" shall mean the lessor note issued by the Owner Lessor in favor of
the Pass Through Trustee in the amount of $146,237,669.38, as more fully
described in Section 2.2 of the Lease Indenture.
"Lessor Possession Date" shall have the meaning specified in the Assignment and
Reassignment of Project Agreement.
"Lessor Section 467 Interest" shall have the meaning set forth in Section 3.3(c)
of the Facility Lease.
"Lessor Section 467 Loan Balance" shall have the meaning ascribed to that term
in the definition of "Section 467 Loan Balance."
"Lien" shall mean any mortgage, security deed, security title, pledge, lien,
charge, encumbrance, lease, and security interest or title retention
arrangement.
"List of Competitors" shall mean the initial list attached to the Participation
Agreement as Schedule 4, as amended from time to time pursuant to Section 9.1(b)
of the Participation Agreement.
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"LLC Agreement" shall mean the Amended and Restated Limited Liability Company
Agreement (BA 1/2), dated as of the Effective Date, between the Trust Company
and the Owner Participant pursuant to which the Owner Lessor shall be governed.
"Loan" shall mean the loan evidenced by the Lessor Note.
"Majority in Interest of Noteholders" as of any date of determination, shall
mean Noteholders holding in aggregate more than 50% of the total outstanding
principal amount of the Notes; provided, however, that any Note held by PPL
Montana and/or any Affiliate of PPL Montana shall not be considered outstanding
for purposes of this definition unless PPL Montana and/or such Affiliate shall
hold title to all the Notes outstanding.
"Make Whole Premium" shall mean, with respect to any Lessor Note subject to
redemption pursuant to the Lease Indenture, an amount equal to the Discounted
Present Value of such Lessor Note less the unpaid principal amount of such
Lessor Note; provided that the Make Whole Premium shall not be less than zero.
For purposes of this definition, the "Discounted Present Value" of any Lessor
Note subject to redemption pursuant to the Lease Indenture shall be equal to the
discounted present value of all principal and interest payments scheduled to
become due after the date of such redemption in respect of such Lessor Note,
calculated using a discount rate equal to the sum of (i) the yield to maturity
on the U.S. Treasury security having an average life equal to the remaining
average life of such Lessor Note and trading in the secondary market at the
price closest to par and (ii) 50 basis points; provided, however, that if there
is no U.S. Treasury security having an average life equal to the remaining
average life of such Lessor Note, such discount rate shall be calculated using a
yield to maturity interpolated or extrapolated on a straight-line basis
(rounding to the nearest calendar month, if necessary) from the yields to
maturity for two U.S. Treasury securities having average lives most closely
corresponding to the remaining life of such Lessor Note and trading in the
secondary market at the price closest to par.
"Market Consultant" shall mean PHB ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc.
"Market Report" shall mean the Report of the Market Consultant, dated May 23,
2000, addressed to the Owner Participant in substantially the form of the
Independent Market Consultant's Report attached as Appendix B to the Offering
Memorandum.
"Material Adverse Effect" shall mean a materially adverse change in (i) the
business, assets, revenues, results of operations, financial condition or
prospects of PPL Montana and its Core Subsidiaries, taken as a whole, (ii) the
ability of PPL Montana to perform its obligations under the Operative Documents,
or (iii) the validity or enforceability of the Operative Documents, the Liens
granted thereunder, or the rights and remedies thereto.
"Maximum Probable Loss" shall mean the largest loss which can occur under the
worst conditions that are likely to occur.
"Member Interest" shall mean the membership interest of the Owner Participant in
the Owner Lessor.
"Minimum Credit Standard" shall mean a credit rating from S&P and Moody's of at
least (i) BBB and Baa3, respectively, or (ii) BBB- and Baa2, respectively.
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"Modification" shall mean an addition, betterment or enlargement of the
Facility, including any Required Modifications and Optional Modifications, but
not Components.
"Montana Assets" shall mean the assets acquired from MPC pursuant to the Asset
Purchase Agreement, including the undivided interest in the Colstrip Project
acquired pursuant to such Asset Purchase Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"MPC" shall mean The Montana Power Company.
"Non-Recourse Indebtedness" shall mean Indebtedness:
(i) as to which neither PPL Montana nor any of its Core Subsidiaries
(a) provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (b) is directly or indirectly
liable as a guarantor or otherwise, or (c) constitutes the lender;
(ii) which, if in default, would not permit (upon notice, lapse of
time or both) any holder (as such) of any other Indebtedness of PPL Montana or
any of its Core Subsidiaries to declare a default on such other Indebtedness,
cause the payment thereof to be accelerated or payable prior to its stated
maturity, or take enforcement action against an Additional Subsidiary; and
(iii) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of PPL Montana or any of
its Core Subsidiaries.
"Nonseverable Modifications" shall mean any Modification that is not readily
removable without causing material damage to the Facility.
"Note Register" shall have the meaning specified in Section 2.8 of the Lease
Indenture.
"Noteholder" shall mean any holder from time to time of an outstanding Note.
"Notes" shall mean any Lessor Note or Additional Lessor Notes issued pursuant to
the Lease Indenture.
"Obsolescence Termination Date" shall have the meaning specified in Section 14.1
of the Facility Lease.
"Offering Memorandum" shall mean the Offering Memorandum, dated as of July 20,
2000, with respect to the Certificates.
"Officer's Certificate" shall mean with respect to any Person, a certificate
signed (i) in the case of a corporation or limited liability company, by the
Chairman of the Board, the President, or a Vice President of such Person or any
Person authorized by or pursuant to the organizational documents, the bylaws or
any resolution of the board of directors, board of managers, or executive
committee of such Person (whether general or specific) to execute, deliver and
take
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actions on behalf of such Person in respect of any of the Operative Documents,
(ii) in the case of a partnership, by the Chairman of the Board of Directors,
the President or any Vice President, the Treasurer or an Assistant Treasurer of
a corporate general partner, and (iii) in the case of the Lease Indenture
Trustee or the Pass Through Trustee, a certificate signed by a Responsible
Officer of the Lease Indenture Trustee or the Pass Through Trustee.
"Omnibus Voting Agreement" shall mean the Omnibus Voting Rights Agreement
(BA/NC1/2), dated as of the Closing Date, among PPL Montana, Owner Lessor, the
Other Owner Lessor with respect to the Facility, the Lease Indenture Trustee,
and the Other Lease Indenture Trustee with respect to the Facility which
Agreement is attached as Exhibit H to the Participation Agreement.
"OP Guararantor" shall mean the Guarantor or any Person that shall guaranty the
obligations of a Transferee under the Operative Documents in accordance with
Section 9.1(a) of the Participation Agreement.
"OP Member" shall mean any member of the Owner Participant.
"OP Member Interest" shall mean the membership interest of any OP Member in the
Owner Participant.
"OP Parent Guaranty" shall mean the OP Parent Guaranty (BA1/2), dated as of the
Effective Date, by the Guarantor in favor of the Transaction Parties.
"Operating Agreement 1-2" shall mean the Operation and Maintenance of Colstrip
Steam Electric Generating Plant dated as of July 30, 1971, between PPL Montana
(successor to MPC) and Puget, relating to the ownership and operation of Units 1
and 2.
"Operative Documents" shall mean the Participation Agreement, the ▇▇▇▇ of Sale,
the Facility Lease, the Abstract of Lease, the Site Lease and Sublease, the
Assignment and Reassignment of Project Agreements, the Omnibus Voting Rights
Agreement, the Lease Indenture, the Lessor Note, the Pass Through Trust
Agreement, the Certificates, the Registration Rights Agreement, the LLC
Agreement, the Tax Indemnity Agreement, the OP Parent Guaranty and any
Qualifying Letter of Credit.
"Operator" shall mean PPL Montana.
"Optional Modification" shall have the meaning specified in Section 8.2 of the
Facility Lease.
"Original LLC Agreement shall mean the Limited Liability Company Agreement,
dated as of September 20, 1999, pursuant to which the Owner Lessor was created.
"Other Bills of Sale" shall mean each of the bills of sale executed and
delivered pursuant to the Other Participation Agreements.
"Other Colstrip Lease Transactions" shall mean the transactions entered into
pursuant to the Other Participation Agreements.
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"Other Facility Leases" shall mean each of the facility leases executed and
delivered pursuant to the Other Participation Agreements.
"Other Ground Interests" shall mean the undivided leasehold interests in the
Colstrip Site conveyed to the Other Owner Lessors under the Other Site Lease and
Sublease.
"Other Lease Indenture Trustees" shall mean each of the lease indenture trustees
relating to the Other Lease Indentures.
"Other Lease Indentures" shall mean each of the lease indentures executed and
delivered pursuant to the Other Participation Agreements.
"Other Lessor Managers" shall mean each of the lessor managers acting on behalf
of the Other owner Lessors pursuant to the Other Operative Documents.
"Other Operative Documents" shall mean the "Operative Documents" for each of
the Other Colstrip Lease Transactions.
"Other Owner Lessors" shall mean Montana OL1 LLC, and Montana OL4 LLC.
"Other Owner Participants" shall mean Montana OP1 LLC, and Montana OP4 LLC.
"Other Participation Agreements" shall mean a collective reference to each of
the other three separate Participation Agreements entered into by PPL Montana,
the applicable Other Owner Lessor, the Trust Company, the applicable Other Owner
Participant, the Other Lease Indenture Trustees and the Pass Through Trustee and
designated (NC1/2), (NC3) and (BA3), each dated as of the Effective Date,
pursuant to which PPL Montana has agreed to (a) sell to the applicable Other
Owner Lessors certain undivided interests in Colstrip ▇▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇, ▇▇▇ (▇) lease from the applicable Other Owner Lessors such undivided
interest in Colstrip Units 1 and 2 and Colstrip Unit 3 pursuant to the Other
Facility Leases.
"Other Site Lease and Sublease" shall mean each of the site and subleases
executed and delivered pursuant to the Other Participation Agreements.
"Other Undivided Interest" shall mean the "Undivided Interest" in the Colstrip
Project conveyed to the Other Owner Lessors under the Other Bills of Sale.
"Overall Transaction" shall mean the Transaction and the Other Colstrip Lease
Transactions.
"Overdue Rate" shall mean 10.903%.
"Owner Lessor" shall mean Montana 0L3 LLC, a Delaware limited liability company.
"Owner Lessor's Account" shall mean the account (No.52134-0 maintained by the
Owner Lessor with Wilmington Trust Company, ABA#▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ or such other account of the Owner Lessor, as the Owner Lessor may
from time to time specify in a notice to the Lease Indenture Trustee pursuant
to Section 9.5 of the Lease Indenture.
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"Owner Lessor's Interest" shall mean the Owner Lessor's right, title and
interest in and to the Undivided Interest and the Ground Interest under the ▇▇▇▇
of Sale and the Site Lease and Sublease, respectively.
"Owner Lessor's Lien" shall mean any Lien on the Lessor Estate or any part
thereof arising as a result of (i) Taxes against or affecting the Trust Company
or the Lessor Manager, or any Affiliate thereof that is not related to, or that
is in violation of, any Operative Document or the transactions contemplated
thereby, (ii) Claims against or any act or omission of the Trust Company or the
Lessor Manager, or Affiliate thereof that is not related to, or that is in
violation of, any Operative Document or the transactions contemplated thereby or
that is in breach of any covenant or agreement of the Trust Company or the
Lessor Manager specified therein, (iii) Taxes imposed upon the Trust Company or
the Lessor Manager, or any Affiliate thereof that are not indemnified against by
PPL Montana pursuant to any Operative Document, or (iv) Claims against or
affecting the Trust Company or the Lessor Manager, or any Affiliate thereof
arising out of the voluntary or involuntary transfer by the Trust Company or the
Lessor Manager of any portion of the interest of the Trust Company or the Lessor
Manager in the Owner Lessor's Interest, other than pursuant to the Operative
Documents.
"Owner Lessor's Percentage" shall mean 86.111111112%.
"Owner Participant" shall mean Montana 0P3 LLC, a Delaware limited liability
company.
"Owner Participant's Account" shall mean the account (No. 52131-0) maintained by
the Owner Participant with Wilmington Trust Company, ABA#▇▇▇▇▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or such other account of the Owner Participant, as the Owner
Participant may from time to time specify in a notice to the Lease Indenture
Trustee pursuant to Section 9.5 of the Lease Indenture.
"Owner Participant's Commitment" shall mean the Owner Participant's investment
in the Owner Lessor contemplated by Section 2.1(a) of the Participation
Agreement.
"Owner Participant's Lien" shall mean any Lien on the Lessor Estate or any part
thereof arising as a result of (i) Claims against or any act or omission of the
Owner Participant that is not related to, or that is in violation of, any
Operative Document or the transactions contemplated thereby or that is in breach
of any covenant or agreement of the Owner Participant set forth therein, (ii)
Taxes against the Owner Participant that are not indemnified against by PPL
Montana pursuant to the Operative Documents or (iii) Claims against or affecting
the Owner Participant arising out of the voluntary or involuntary transfer by
the Owner Participant (except as contemplated or permitted by the Operative
Documents) of any portion of the interest of the Owner Participant in the Member
Interest.
"Owner Participant's Net Economic Return" shall mean the Owner Participant's
anticipated (i) net after-tax yield, calculated according to the multiple
investment sinking fund method of analysis, and (ii) aggregate GAAP income and
after-tax cash flow.
"Owner's Committee" shall have the meaning specified in each respective Project
Agreement.
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"Ownership Agreement 1-2" shall mean the Construction and Ownership Agreement,
dated as of July 30, 1971, between PPL Montana (successor to MPC) and Puget,
relating to the ownership and operation of Units 1 and 2.
"Ownership Agreement 3-4" shall mean the Ownership and Operation Agreement
Colstrip Units 3 and 4, dated as of May 6, 1981, among MPC, Puget, Puget
Colstrip Construction Company, Avista Corporation (successor to The Washington
Water Power Company), Portland, and Pacific Power & Light Company, relating to
the ownership and operation of the Common Facilities 3-4.
"Ownership Agreements" shall mean the Ownership and Operating Agreements 1-2 and
the Ownership Agreement 3-4.
"Ownership and Operating Agreements 1-2" shall mean a collective reference to
the Ownership Agreement 1-2 and the Operating Agreement 1-2.
"Participation Agreement" shall mean the Participation Agreement (BA1/2), dated
as of the Effective Date, among PPL Montana, the Owner Lessor, Wilmington Trust
Company, in its individual capacity and as Lessor Manager, the Owner
Participant, and The Chase Manhattan Bank, as Lease Indenture Trustee and as
Pass Through Trustee.
"Pass Through Trust" shall mean the pass through trust created pursuant to the
Pass Through Trust Agreement.
"Pass Through Trust Agreement" shall mean the Pass Through Trust Agreement,
dated as of the Effective Date, between PPL Montana and the Pass Through
Trustee.
"Pass Through Trustee" shall mean The Chase Manhattan Bank, not in its
individual capacity, but solely as Pass Through Trustee under the Pass Through
Trust Agreement, and each other Person that may from time to time be acting as a
Pass Through Trustee in accordance with the provisions of the Pass Through Trust
Agreement.
"Periodic Lease Rent" shall have the meaning specified in Section 3.3(a) of the
Facility Lease.
"Permitted Business" shall mean any of the following:
(a) the generation, transmission, distribution, marketing and sale
of power from the Montana Assets (and any expansions related to the Montana
Assets or acquisitions of similar generating assets in Montana);
(b) activities related to the ownership and operation of the Rosebud
Coal Mine or other coal assets in North America for the supply of fuel to the
Montana Assets (and any expansions related to the Montana Assets or acquisitions
of similar generating assets in Montana);
(c) all activities related or incidental to those set forth in
clauses (a) and (b); and
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(d) if Moody's and S&P confirm that the then existing ratings of the
Certificates will not fall below an investment grade rating as a result of PPL
Montana's or any of its Core Subsidiaries' participation in such activities,
any other activity related to non-nuclear generation, transmission,
distribution, marketing and sale of power in North America.
"Permitted Encumbrances" shall mean all matters shown as exceptions on Schedule
B to each of the Title Policies as in effect on the Closing Date.
"Permitted Instruments" shall mean (a) Permitted Securities, (b) overnight loans
to or other customary overnight investments in commercial banks of the type
referred to in paragraph (d) below, (c) open market commercial paper of any
corporation (other than PPL Montana or any Affiliate) incorporated under the
laws of the United States or any State thereof which is rated not less than
"prime-1" or its equivalent by Moody's and "A-1" or its equivalent by S&P
maturing within one year after such investment, (d) certificates of deposit and
issued by commercial banks organized under the laws of the United States or any
State thereof or a domestic branch of a foreign bank (i) having a combined
capital and surplus in excess of $500,000,000 and (ii) which are rated "AA" or
better by S&P and "Aa2" or better by Moody's; provided that no more than
$20,000,000 may be invested in such deposits at any one such bank and (e) a
money market fund registered under the Investment Company Act of 1940, as
amended, the portfolio of which is limited to Permitted Securities.
"Permitted Investment" shall mean:
(1) any Investment in PPL Montana or in a Core Subsidiary of PPL Montana;
(2) any Investment in cash equivalents;
(3) any Investment by PPL Montana or any Core Subsidiary of PPL Montana in
a Person, if as a result of such Investment:
(a) such Person becomes a Core Subsidiary of PPL Montana; or
(b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, PPL Montana or a wholly-owned Core Subsidiary of PPL
Montana;
(4) any acquisition of assets solely in exchange for the issuance of
equity interests of PPL Montana;
(5) hedging obligations entered into in the ordinary course of business
and not for speculative purposes;
(6) any Investment made from the proceeds of capital contributions to, or
the issuance and sale of equity interests in, PPL Montana not constituting
Indebtedness other than the equity contributions required by Sections 4.02(o) or
4.03(h) of the Credit Agreement; and
(7) other Investments in any Person (including any Additional Subsidiary)
having an aggregate fair market value (measured on the date each such Investment
was made and without
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giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (7) since the Closing Date not to
exceed $30 million.
"Permitted Liens" shall mean (i) the interests of PPL Montana, the Owner
Participant, the Owner Lessor, the Lessor Manager, the Lease Indenture Trustee,
and the Pass Through Trustee under any of the Operative Documents; (ii) all
Owner Lessor's Liens, Owner Participant's Liens and Indenture Trustee's Liens;
(iii) the reversionary interests of PPL Montana in the Colstrip Site; (iv) the
interests of the Other Owner Lessors and the Other Lease Indenture Trustees in
the Facility, the Colstrip Site and the Project Agreements; (v) the interests of
PPL Montana, the Other Owner Participants, the Other Owner Lessors, the Other
Lessor Managers, the Other Lease Indenture Trustees, and the Pass Through
Trustee under any of the Other Operative Documents; (vi) the Project Agreements;
(vii) the interest of the co-owners of Unit 4 as tenants in common in Unit 4 and
the Common Facilities 3-4 and the Common Facilities 1-2-3-4 and the rights of
such owners under the Ownership Agreement 3-4 and the Common Facilities
Agreement; (viii) the interest of the co-owners of Unit 3 as tenants in common
of Unit 3 and the Common Facilities and the rights of such co-owners under the
Ownership Agreement 3-4 and the Common Facilities Agreement; (ix) the interest
of the co-owners of Units 1 and 2 as tenants in common of Units 1 and 2 and the
Common Facilities and the rights of such co-owners under the Ownership and
Operating Agreements 1-2 and the Common Facilities Agreement; and (x) Permitted
Encumbrances.
"Permitted Securities" shall mean securities (and security entitlements with
respect thereto) that are (i) direct obligations of the United States of America
or obligations guaranteed as to principal and interest by the full faith and
credit of the United States of America, and (ii) securities issued by agencies
of the U.S. Federal government whether or not backed by the full faith and
credit of the United States rated "AAA" and "Aaa", or better by S&P and Moody's,
respectively, which, in either case under clauses (i) or (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction in the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government obligation or the specific payment
of interest on or principal of the U.S. Government obligation evidenced by such
depository receipt.
"Person" shall mean any individual, corporation, cooperative, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall mean any "employee benefit plan" (as defined in Section 3(3) of
ERISA) that is subject to ERISA, any "plan" (as defined in Section 4975(e)(1)
of the Code) that is subject to Section 4975 of the Code, any trust created
under any such plan or any "governmental plan" (as defined in Section 3(32) of
ERISA or Section 414(d) of the Code) that is organized in a jurisdiction having
prohibitions on transactions with government plans similar to those contained in
Section 406 of ERISA or Section 4975 of the Code.
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"Pollution Control Facilities" shall mean that portion of the Facility that was
financed pursuant to those Pollution Control Revenue Refunding Bonds, Series
1993A, due May 1, 2023, of the City of Forsyth, Montana in the original
principal amount of $90,205,000 and Series 1993B, due December 1, 2023, of the
City of Forsyth, Montana, in the original principal amount of $80,000,000.
"Portland" shall mean Portland General Electric Company.
"Power Market Consultant" shall mean PHB ▇▇▇▇▇▇ ▇▇▇▇▇▇ Consulting, Inc., or
another nationally recognized power market consultant selected by PPL Montana.
"PPA" shall mean (A) an arm's length, executed, valid and binding agreement
between PPL Montana or any Core Subsidiary and either (i) a third party
purchaser whose long-term senior debt is rated no less than Baa3 by Moody's and
BBB- by S&P or (ii) an Affiliate of PPL Montana, provided that such Affiliate
has executed a valid and binding agreement with a third party purchaser whose
long-term senior debt is rated no less than Baa3 by Moody's and BBB- by S&P with
substantially the same terms (other than pricing) as such Affiliate's agreement
with PPL Montana or such Core Subsidiary, in each case, for the sale of
electric energy or capacity by PPL Montana or Core Subsidiary to such third
party or Affiliate of PPL Montana or (B) financial hedge agreements relating to
energy or capacity pricing that are (i) supported by available energy or
capacity or PPL Montana and its Core Subsidiaries and (ii) with counterparties
having long-term senior debt that is rated no less than Baa3 by Moody's and BBB-
by S&P.
"PPA Period" shall mean any consecutive period of four full fiscal quarters (or
shorter period of not less than one full fiscal quarter that is equal to the
period being evaluated for purposes of determining whether such period is a PPA
Period) during which PPL Montana and its Core Subsidiaries have committed to
sell at a scheduled or formula price (as opposed to pure spot market price) at
lease 50% of their total projected energy sales (measured in MWh and, in the
case of Core Subsidiaries that are not directly or indirectly wholly owned by
PPL Montana, taking into account only such portion of such projected energy
sales as directly corresponds to PPL Montana's direct or indirect ownership
interest in such Core Subsidiary) (i) for the consecutive period of four full
fiscal quarters commencing on the first day of such period being evaluated and
(ii) for the consecutive period of four full fiscal quarters commencing on the
one year anniversary of such period being evaluated, in each case, pursuant to
one or more PPAs).
"PPL Corporation" shall mean PPL Corporation, a Pennsylvania corporation.
"PPL Montana" shall mean PPL Montana, LLC, a Delaware limited liability company.
"Pricing Assumptions" shall mean the "Pricing Assumptions" attached as Schedule
2 to the Participation Agreement.
"Principal Portion" shall mean, individually or collectively as the context may
require, the Unit 1 Principal Portion and/or the Unit 2 Principal Portion.
"Proceeds" shall mean the proceeds from the sale of the Certificates by the
Pass Through Trusts to the Certificateholders on the Closing Date.
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"Project Agreements" shall mean the Ownership and Operating Agreements 1-2 and
the Common Facilities Agreement.
"Project Committee" shall have the meaning specified in section 1 of the
Assignment and Reassignment of Project Agreements.
"Proportional Rent" shall have the meaning set forth in Section 3.3(c).
"Prudent Industry Practice" shall mean, at a particular time, either (a) any of
the practices, methods and acts engaged in or approved by a significant portion
of the competitive electric generating industry operating in the western United
States at such time, or (b) with respect to any matter to which the practices
referred to in clause (a) do not exist, any of the practices, methods and acts
which, in the exercise of reasonable judgment in light of the facts known at the
time the decision was made, could have been expected to accomplish the desired
result at a reasonable cost consistent with good business practices,
reliability, safety and expedition. "Prudent Industry Practice" is not
intended to be limited to the optimum practice, method or act to the exclusion
of all others, but rather to be a spectrum of possible practices, methods or
acts having due regard for, among other things, manufacturers' warranties and
the requirements of governmental bodies of competent jurisdiction.
Notwithstanding the foregoing, the parties acknowledge and agree that practices,
methods and acts consistent with the objectives set forth in the Reliability
Based Production program, including the organizational structure and strategies
being implemented at the Facility as of the Closing Date, are acceptable and
shall be deemed to be "Prudent Industry Practice."
"Puget" shall mean Puget Sound Energy, Inc.
"Purchase Price" shall mean the purchase price of the Units 1 and 2 Interest in
the amount of $177,388,888.89.
"Qualified Shareholder" shall mean an Person who holds a minority interest in a
Core Subsidiary, provided that S&P and ▇▇▇▇▇'▇ confirmed that, at the time of
such Person's acquisition of such interest in the Core Subsidiary, such
acquisition and any transactions related thereto did not result in a downgrade
of the then current ratings of the Certificates.
"Qualifying Cash Bid" shall have the meaning specified in Section 13.2 of the
Facility Lease.
"Qualifying Letter of Credit" shall mean an irrevocable unconditional stand by
letter of credit substantially in the form of Exhibit I to the Participation
Agreement, issued by a Qualifying Letter of Credit Bank.
"Qualifying Letter of Credit Bank" shall mean any bank or other financial
institution whose senior unsecured debt obligations (or long-term deposits) is
rated at least rated A3 or higher by ▇▇▇▇▇'▇ and A- or higher by S&P. A
Qualifying Letter of Credit Bank shall cease to be a Qualifying Letter of Credit
Bank if such entity shall at any time be rated below the ratings set forth in
the immediately preceding sentence.
"Rating Agencies" shall mean S&P and ▇▇▇▇▇'▇.
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"Reasonable Basis" for a position shall exist if tax counsel may properly advise
reporting such position on a tax return in accordance with Formal Opinion 85-352
issued by the Standing Committee on Ethics and Professional Responsibility of
the American Bar Association (or any successor to such opinion).
"Rebuilding Closing Date" shall have the meaning specified in Section 10.3(d) of
the Facility Lease.
"Redemption Date" shall mean, when used with respect to any Note to be redeemed,
the date fixed for such redemption by or pursuant to the Lease Indenture or the
respective Note, which date shall be a Termination Date.
"Regulatory Event of Loss" shall have the meaning specified in clause (d) of the
definition of "Event of Loss."
"Related Common Facilities" shall mean, with respect to any Unit, the Common
Facilities 1-2, and the Common Facilities 1-2-3-4 associated therewith.
"Related Common Facilities Interest" shall mean (a) with respect to any Unit 1
Interest, the Related Common Facilities Interest 1, and (b) with respect to any
Unit 2 Interest, the Related Common Facilities Interest 2.
"Related Common Facilities Interest 1" shall mean (a) a 25% undivided interest
in and to the Common Facilities 1-2, and (b) 25% of the undivided interest in
and to the Common Facilities 1-2-3-4 allocated to Units I and 2 pursuant to the
Common Facilities Agreement.
"Related Common Facilities Interest 2" shall mean (a) a 25% undivided interest
in and to the Common Facilities 1-2, and (b) 25% of the undivided interest in
and to the Common Facilities 1-2-3-4 allocated to Units I and 2 pursuant to the
Common Facilities Agreement.
"Related Common Facilities Site" shall mean, with respect to any Unit, that
portion of the Common Facilities Site upon which the Related Common Facilities
are located.
"Related Ground Interest" shall mean (a) with respect to the Unit 1 Interest,
the portion of the Ground Interest relating to Colstrip ▇▇▇▇ ▇, and (b) with
respect to the Unit 2 Interest, the portion of the Ground Interest relating to
Colstrip ▇▇▇▇ ▇.
"Related Lease Indenture Trustee" shall mean the "Lease Indenture Trustee" under
the Related Transaction.
"Related Owner Lessor" shall mean the "Owner Lessor" under the Related
Transaction.
"Related Party" shall mean, with respect to any Person or its successors and
assigns, an Affiliate of such Person or its successors and assigns and any
director, officer, servant, employee or agent of that Person or any such
Affiliate or their respective successors and assigns; provided that the Lessor
Manager and the Owner Lessor shall not be treated as Related Parties to each
other and neither the Owner Lessor nor the Lessor Manager shall be treated as a
Related Party to any Owner Participant except that, for purposes of Section 11
of the Participation Agreement, the
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Owner Lessor will be treated as a Related Party to an Owner Participant to the
extent that the Owner Lessor acts on the express direction or with the express
consent of such Owner Participant.
"Related Site" shall mean, with respect to any Unit, the Unit Site upon which
such Unit is located together with the Common Facilities Site upon which the
Related Common Facilities are located.
"Related Transaction" shall mean the transaction contemplated by the
Participation Agreement of even date herewith entered into by PPL Montana, the
Owner Lessor, the Trust Company, the Owner Participant, the Lease Indenture
Trustee and the Pass Through Trustee, and designated (NC1/2).
"Released Property" shall have the meaning specified in Section 6.2 of the Site
Lease and Sublease.
"Renewal Lease Rent" shall mean the Basic Lease Rent payable during any
Wintergreen Renewal Lease Term or FMV Renewal Lease Term, in each case as
determined in accordance with Section 15.3 of the Facility Lease.
"Renewal Lease Term" shall mean any Wintergreen Renewal Lease Term or any FMV
Renewal Lease Term.
"Renewal Site Lease Term" shall have the meaning specified in Section 2.3(c) of
the Site Lease and Sublease.
"Renewal Site Sublease Term" shall have the meaning specified in Section 4.3 of
the Site Lease and Sublease.
"Rent" shall mean Periodic Lease Rent, Renewal Lease Rent and Supplemental Lease
Rent.
"Rent Payment Date" shall mean each January 2 and July 2, commencing January 2,
2001, to and including July 2, 2036 and July 20, 2036.
"Rent Payment Period" shall mean in the case of the first Rent Payment Period
the period commencing on the Closing Date and ending on October 2, 2000,
followed by the Rent Payment Period commencing on October 2, 2000 and ending
January 2, 2001 and thereafter, each six-month period (i) commencing, on each
Rent Payment Date through and including the Expiration Date, and (ii) ending on
but excluding the following January 2 or July 2, as the case may be; provided
that the last Rent Payment Period shall end on, and include, the expiration date
of the Facility Lease Term.
"Replacement Component" shall have the meaning specified in Section 7.2 of the
Facility Lease.
"Required Modification" shall have the meaning specified in Section 8. 1 of the
Facility Lease.
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"Requisition" shall have the meaning specified in clause (c) of the definition
of "Event of Loss."
"Responsible Officer" shall mean, with respect to any Person, (i) its Chairman
of the Board, its President, any Senior Vice President, the Chief Financial
Officer, any Vice President, the Treasurer or any other management employee (a)
that has the power to take the action in question and has been authorized,
directly or indirectly, by the Board of Directors (or equivalent body) of such
Person, (b) working under the direct supervision of such Chairman of the Board,
President, Senior Vice President, Chief Financial Officer, Vice President or
Treasurer, and (c) whose responsibilities include the administration of the
transactions and agreements contemplated by the Operative Documents, and (ii)
with respect to the Lessor Manager, the Lease Indenture Trustee and the Pass
Through Trustee, an officer in their respective corporate trust administration
departments.
"Restricted Investment" shall mean any Investment other than a Permitted
Investment.
"Restricted Payment" shall mean (i) the declaration or payment of any dividend
or making of any other payment or distribution (including any payment in
connection with any merger or consolidation involving PPL Montana or any of its
Core Subsidiaries) on account of PPL Montana's or any of its Core Subsidiaries'
equity interests or to the direct or indirect holders of PPL Montana's or any of
its Core Subsidiaries equity interests in their capacity as such (provided,
however, that the following dividends or distributions shall not be Restricted
Payments: (A) a dividend or distribution not in excess of $50 million on the
Closing Date; (B) dividends or distributions payable in equity interests of PPL
Montana or any Core Subsidiary (so long as it remains a Core Subsidiary and PPL
Montana's direct or indirect percentage ownership interest in any Core
Subsidiary is not reduced as a result of such dividend or distribution), (C)
dividends or distributions to PPL Montana or any Core Subsidiary, and (D)
dividends or distributions to any shareholder of a Core Subsidiary other than
PPL Montana or another Core Subsidiary, so long as such shareholder is a
Qualified Shareholder and such dividend or distribution shall be made pro rata
to each of the holders of such type of securities or other interests in respect
of which such dividend or distribution is being made, in each case, in
accordance with their respective holdings of such securities or other interests
in the Core Subsidiary making such dividend or distribution; (ii) the purchase,
redemption or other acquisition or retirement by PPL Montana for value
(including in connection with any merger or consolidation involving PPL Montana)
of any equity interests of PPL Montana; (iii) the making of any payment on or
with respect to, or the purchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is subordinated to the obligations
of PPL Montana under the Facility Lease; or (iv) the making of any Restricted
Investment.
"Revenues" shall have the meaning specified in the Granting Clause of the Lease
Indenture.
"Rights Sharing Agreement" shall mean the MPC/PP&L Colstrip Units 3 and 4
Generating Project Reciprocal Sharing Agreement, entered into as December 17,
1999 between PPL Montana and The Montana Power Company.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
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"Scheduled Closing Date" shall mean July 20. 2000, and any date set for the
Closing in a notice of postponement pursuant to Section 2.3(a) of the
Participation Agreement.
"Scheduled Lease Expiration Date" shall mean July 20, 2036.
"Scheduled Payment Date" shall mean a Rent Payment Date.
"Scheduled to be Paid" shall mean, with respect to any liability or expense for
any period, the amount of such liability or expense scheduled to be paid during
such period or the amount of such liability or expense that would have been
scheduled to be paid during such period had the payment schedule with respect to
such liability or expense been divided equally into successive periods having a
duration equal to the duration of such period.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Second Wintergreen Renewal Lease Term" shall have the meaning specified in
Section 15.2 of the Facility Lease.
"Section 467 Interest" shall mean and include the Lessor Section 467 Interest
and the Lessee Section 467 Interest.
"Section 467 Loan Balance" shall mean for any Termination Date, with respect to
the Undivided Interest, an amount equal to the product of the Purchase Price
multiplied by the percentage set forth for such Termination Date under the
caption "Section 467 Loan Balance Percentage" on Schedule 2 of the Facility
Lease for such Termination Date. If the percentage set forth under such caption
is positive, the Section 467 Loan Balance shall constitute a loan made by the
Facility Lessee to the Owner Lessor ("Lessor Section 467 Loan Balance") and, if
such percentage is negative, shall constitute a loan made by the Owner Lessor to
the Facility Lessee ("Lessee Section 467 Loan Balance").
"Secured Indebtedness" shall have the meaning specified in Section 1 of the
Lease Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security" shall have the same meaning as in Section 2(1) of the Securities Act.
"Severable Modification" shall mean any Modification that is readily removable
without causing material damage to the Facility.
"Significant Lease Default" shall mean any of: (i) if PPL Montana shall fail to
make any payment of Periodic Lease Rent, Renewal Lease Rent, or Termination
Value after the same shall have become due and payable, (ii) if PPL Montana
shall fail to make any payment of Supplemental Lease Rent (other than Excepted
Payments or Termination Value) in excess of $250,000 after the same shall have
become due and payable, except to the extent such amounts are in dispute and
have not been established to be due and payable, and (iii) an event that is, or
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with the passage of time or the giving of notice would become, a "Lease Event of
Default" under clauses (e). (g), (h), (i) or (k) of Section 16 of any Facility
Lease.
"Significant Indenture Default" shall means a failure by the Owner Lessor to
make any payment of principal or interest on the Lessor Note after the same
shall have become due and payable.
"Site(s)" shall have the meaning specified in the recitals of Site Lease and
Sublease.
"Site Lease and Sublease" shall mean the Site Lease and Sublease Agreement (BA
1/2), dated as of the Closing Date, between PPL Montana and the Owner Lessor,
substantially in the form of Exhibit C to the Participation Agreement duly
completed, executed and delivered on the Closing Date pursuant to which PPL
Montana will lease the Ground Interest to, and sublease such Ground Interest
from, the Owner Lessor.
"Site Lease Term" shall have the meaning specified in Section 2.3(d) of the Site
Lease and Sublease.
"Site Sublease Term" shall have the meaning specified in Section 4.3 of the Site
Lease and Sublease.
"Special Lessee Transfer" shall have the meaning specified in Section 15.1 of
the Participation Agreement.
"Special Lessee Transfer Amount" shall mean for any date, the amount determined
as follows:
(i) if the determination date shall be a Termination Date, the
Termination Value under the Facility Lease on such date, or (ii) if such date
shall not be a Termination Date, the Termination Value under the Facility Lease
on the immediately succeeding Termination Date; plus
(ii) in the case of a termination pursuant to Section 13.1 of the
Facility Lease, the amount, if any, by which the Qualifying Cash Bid exceeds
Termination Value determined in accordance with clause (i) above, plus
(iii) any unpaid Basic Lease Rent or Renewal Lease Rent due before
the date of such determination, minus
(iv) the sum of all outstanding principal and accrued interest on
the Notes, if any, on such determination date (in each case, if such
determination date is a Rent Payment Date, before taking into account any Basic
Lease Rent or Renewal Lease Rent due on such determination date).
"Special Lessee Transfer Event" shall mean the occurrence of either of (i) a
Regulatory Event of Loss, and (ii) if the Owner Lessor has agreed to sell, and
PPL Montana has agreed to buy, the Undivided Interest, a Burdensome Termination
Event under Section 13.1 of the Facility Lease.
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"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation or other entity of which sufficient securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors (or equivalent body) or other Persons performing similar functions are
at the time directly or indirectly owned by such parent.
"Supplemental Financing" shall have the meaning specified in Section 13.1 of the
Participation Agreement.
"Supplemental Lease Rent" shall mean any and all amounts, liabilities and
obligations (other than Basic Lease Rent) that PPL Montana assumes or agrees to
pay under the Operative Documents (whether or not identified as "Supplemental
Lease Rent") to the Owner Lessor or any other Person, including Termination
Value.
"Tax" or "Taxes" shall mean all fees, taxes (including sales taxes, use taxes,
stamp taxes, value-added taxes, ad valorem taxes and property taxes (personal
and real, tangible and intangible), levies, assessments, withholdings and other
charges and impositions of any nature, plus all related interest, penalties,
fines and additions to tax, now or hereafter imposed by any federal, state,
local or foreign government or other taxing authority.
"Tax Advance" shall have the meaning specified in Section 11.2(g)(iii)(5) of
the Participation Agreement.
"Tax Assumptions" shall mean the items described in Section 1 of the Tax
Indemnity Agreement.
"Tax Benefit" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Tax Claim" shall have the meaning specified in Section 11.2(g)(i) of the
Participation Agreement.
"Tax Event" shall mean any event or transaction treated, for Federal income tax
purposes, as a taxable sale or exchange of the Lessor Note.
"Tax Indemnitee" shall have the meaning specified in Section 11.2(a) of the
Participation Agreement.
"Tax Indemnity Agreement" shall mean the Tax Indemnity Agreement (BA1/2), dated
as of the Closing Date, between PPL Montana and the Owner Participant.
"Tax Law Change" shall have the meaning specified in Section 14.2(a)(iii) of the
Participation Agreement.
"Tax Loss" shall have the meaning specified in Section 5(a) of the Tax Indemnity
Agreement.
"Tax Representation" shall mean each of the items described in Section 4 of the
Tax Indemnity Agreement.
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"Tax Shelter Designation Agreement" shall mean that certain agreement pursuant
to which, inter alia, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇ has agreed to file a Form 8264 (and
attachments) with the IRS.
"Term" shall mean the Fixed Lease Term and the Renewal Lease Term, if any, of
the Facility Lease.
"Termination Date" shall mean each of the monthly dates during the Facility
Lease Term identified as a "Termination Date" on Schedule 2 of the Facility
Lease.
"Termination Value" for any Termination Date shall mean, with respect to the
Undivided Interest, an amount equal to the product of the Purchase Price and the
Termination Value Percentage for the applicable Unit, as set forth on Schedule 2
of the Facility Lease for such Termination Date. If Termination Value should be
required to be calculated with respect to only one Unit Interest, such
Termination Value shall be 50% of the total amount calculated in the preceding
sentence.
"Title Policies" shall mean each of the title policies issued to the Owner
Lessor, the Lease Indenture Trustee and PPL Montana relating to the Transaction.
"Total Capitalization" shall mean, with respect to any Person, the sum, without
duplication, of (i) total common stock equity or analogous ownership interests
of such Person, (ii) preferred stock and preferred securities of such Person.
(iii) additional paid in capital or analogous interests of such Person, (iv)
retained earnings of such Person, (v) the aggregate principal amount of
Indebtedness of such Person then outstanding, and (vi) the total equity
contributed by the Owner Participants on the Closing Date.
"Transaction" shall mean, collectively, each of the transactions contemplated
under the Participation Agreement and of the other Operative Documents.
"Transaction Costs" shall mean the following costs to the extent substantiated
or otherwise supported in reasonable detail:
(i) the cost of reproducing and printing the Operative Documents and
the Offering Memorandum and all costs and fees, including filing and recording
fees and recording, transfer, mortgage, intangible and similar taxes in
connection with the execution, delivery, filing and recording of the Facility
Lease, the Site Lease and Sublease, and any other Operative Document, and any
other document required to be filed or recorded pursuant to the provisions
hereof or of any other Operative Document and any Uniform Commercial Code filing
fees in respect of the perfection of any security interests created by any of
the Operative Documents or as otherwise reasonably required by the Owner Lessor
or the Lease Indenture Trustee;
(ii) the reasonable fees and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Owner Participant, for services rendered in connection with the
negotiation, execution and delivery of the Participation Agreement and the other
Operative Documents;
(iii) the reasonable fees and expenses of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ PPLP, Montana counsel to the Owner Participant, for services rendered
in connection with the
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negotiation, execution and delivery of the Participation Agreement and the other
Operative Documents;
(iv) the reasonable fees and expenses of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, special counsel to PPL Montana, for services rendered in
connection with the negotiation, execution and delivery of the Participation
Agreement and the other Operative Documents;
(v) the reasonable fees and expenses of Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel to PPL Montana, for services rendered in connection with the
negotiation, execution and delivery of the Participation Agreement and the other
Operative Documents;
(vi) the reasonable fees and expenses of ▇▇▇▇▇▇▇, Bellingham, ▇▇▇▇▇
& ▇▇▇▇▇▇, P.C., Montana counsel to PPL Montana, for services rendered in
connection with the negotiation, execution and delivery of the Participation
Agreement and the other Operative Documents;
(vii) the reasonable fees and expenses of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇, regulatory counsel to PPL Montana, for services rendered in connection
with the negotiation, execution and delivery of the Participation Agreement and
the other Operative Documents;
(viii) the reasonable fees and expenses of Morris, James, Hitchens &
▇▇▇▇▇▇▇▇ LLP, counsel for the Owner Lessor, the Lessor Manager, and the Trust
Company for services rendered in connection with the negotiation, execution and
delivery of the Participation Agreement and the other Operative Documents;
(ix) the reasonable fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
to the Initial Purchasers, for services rendered in connection with the
negotiation, execution and delivery of the Participation Agreement and the other
Operative Documents, and the Certificate Purchase Agreement;
(x) the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel for the Lease Indenture Trustee, the Lease Indenture Company, the Pass
Through Trustee and the Pass Through Company, for services rendered in
connection with the negotiation, execution and delivery of the Participation
Agreement and the other Operative Documents;
(xi) the fees and expenses of the Advisors to PPL Montana, for
services rendered in connection with the transactions contemplated by the
Participation Agreement;
(xii) the underwriting discounts and commissions payable to, and
reasonable out-of-pocket expenses of, the Initial Purchasers;
(xiii) the reasonable fees and expenses of PricewaterhouseCoopers
LLP for services rendered in connection with the Transaction;
(xiv) the reasonable out-of-pocket expenses of the Owner Participant
and the Owner Lessor (including computer time procurement);
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(xv) the initial fees and expenses of the Lessor Manager, the Lease
Indenture Trustee and the Pass Through Trustee in connection with the execution
and delivery of the Participation Agreement and the other Operative Documents to
which either one is or will be a party;
(xvi) the fees and expenses of the Appraiser, for services rendered
in connection with delivering the Closing Appraisal required by Section 4 of the
Participation Agreement;
(xvii) the fees and expenses of the Engineering Consultant, for
services rendered in connection with delivering the Engineering Report required
by Section 4 of the Participation Agreement;
(xviii) the fees and expenses of the Market Consultant, for services
rendered in connection with delivering the Market Report required by Section 4
of the Participation Agreement;
(xix) the fees and expenses of the Fuel Consultant, for services
rendered in connection with delivering the Fuel Report required by Section 4 of
the Participation Agreement;
(xx) the fees and expenses of Aon Risk Services, Inc.;
(xxi) the fees and expenses of the Environmental Consultant;
(xxii) the fees and expenses of the Rating Agencies in connection
with the rating of PPL Montana and the Lease Debt; and
(xxiii) the premiums and any other fees and expenses relating to the
Title Policies.
Notwithstanding the foregoing, Transaction Costs shall not include internal
costs and expenses such as salaries and overhead of whatsoever kind or nature
nor costs incurred by the parties to the Participation Agreement pursuant to
arrangements with third parties for services (other than those expressly
referred to above), such as computer time procurement (other than out-of-pocket
expenses of the Owner Participant), financial analysis and consulting, advisory
services, and costs of a similar nature.
"Transaction Cost Deductions" shall have the meaning set forth in Section 1(a)
of the Tax Indemnity Agreement.
"Transaction Party(ies)" shall mean, individually or collectively as the context
may require, all or any of the parties to the Operative Documents (including the
Trust Company, the Lease Indenture Company, and the Pass Through Company).
"Transferee" shall have the meaning specified in Section 9.1(a) of the
Participation Agreement.
"Transmission Facilities" shall mean all transmission lines, switch yards,
substations and other equipment, property, or rights necessary for the
transmission of electricity from the Colstrip
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Project to the power grid, including each of the items described on Schedule 5
to the Participation Agreement.
"Treasury Regulations" shall mean regulations, including temporary regulations,
promulgated under the Code.
"Trust Company" shall mean the Wilmington Trust Company.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed except as provided in Section 905;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Undivided Interest" shall mean, collectively, the Units 1 and 2 Interest.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code as in
effect in the applicable jurisdiction.
"Unit 1" shall mean Colstrip Unit No. 1, a 333 MW (gross capacity) coal-fired
steam electric generating unit located on the Units 1 and 2 Site in Rosebud
County, Montana, designated "Colstrip ▇▇▇▇ ▇ ," and consisting of the assets
described in Exhibit B of the Site Lease and Sublease and specifically excluding
therefrom the Transmission Facilities.
"Unit 1 Interest" shall mean the undivided interest in Unit 1 and the Related
Common Facilities Interest 1 conveyed to the Owner Lessor pursuant to the ▇▇▇▇
of Sale, and shall consist of an undivided Owner Lessor's Percentage of (a) a
50% undivided interest in and to Unit 1, (b) a 25% undivided interest in and to
the Common Facilities 1-2. and (c) 25% of the undivided interest in and to the
Common Facilities 1-2-3-4 allocated to Units 1 and 2 pursuant to the Common
Facilities Agreement.
"Unit 1 Principal Portion" shall mean, with respect to any Lessor Note, an
amount equal to the portion of the principal of such Lessor Note relating to the
purchase of the related Unit 1 Interest, as set forth on Schedule 1 of such
Lessor Note.
"Unit 1 Site" shall mean that portion of the Units 1 and 2 Site on which Unit 1
is situated.
"Unit 2" shall mean Colstrip Unit No. 2, a 333 MW (gross capacity) coal-fired
steam electric generating unit located on the Units 1 and 2 Site in Rosebud
County, Montana, designated "Colstrip ▇▇▇▇ ▇," and consisting of the assets
described in Exhibit B of the Site Lease and Sublease and specifically excluding
therefrom the Transmission Facilities.
"Unit 2 Interest" shall mean the undivided interest in Unit 2 and the Related
Common Facilities Interest 2 conveyed to the Owner Lessor pursuant to the ▇▇▇▇
of Sale, and shall consist of an undivided Owner Lessor's Percentage of(a) a 50%
undivided interest in and to Unit 2, (b) a 25% undivided interest in and to the
Common Facilities 1-2. and (c) 25% of the undivided interest in and to the
Common Facilities 1-2-3-4 allocated to Units 1 and 2 pursuant to the Common
Facilities Agreement.
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"Unit 2 Principal Portion" shall mean, with respect to any Lessor Note, an
amount equal to the portion of the principal of such Lessor Note relating to the
purchase of the related Unit 2 Interest, as set forth on Schedule 2 of such
Lessor Note.
"Unit 2 Site" shall mean that portion of the Units 1 and 2 Site on which Unit 2
is situated.
"Unit 3" shall mean Colstrip Unit No. 3, a 805 MW (gross capacity) coal-fired
steam electric generating unit located on the Unit 3 Site in Rosebud County,
Montana, designated "Colstrip ▇▇▇▇ ▇," and specifically excluding therefrom the
Transmission Facilities.
"Unit 3 Site" shall mean the land on which Unit 3 is situated, which is
described as the Unit 3 Site in Exhibit A to the Site Lease and Sublease, and
all rights of way, easements, permits and other appurtenances to such land
(including the Water Rights) described on such Schedule or otherwise, and
specifically excluding the Transmission Facilities and the Common Facilities
Site.
"Unit 4" shall mean Colstrip Unit No. 4, a 805 MW (gross capacity) coal-fired
steam electric generating unit located on the Unit 4 Site in Rosebud County,
Montana, designated "Colstrip Unit 4."
"Unit 4 Site" shall mean the land on which Unit 4 is situated, which is
described as the Unit 4 Site.
"Unit Interest" shall mean, individually or collectively as the context may
require, the Unit 1 Interest and/or the Unit 2 Interest.
"Unit Percentage" shall mean, with respect to any Unit, the undivided interest
in such Unit conveyed to the Owner Lessor pursuant to the ▇▇▇▇ of Sale.
"Unit Principal Portion" shall mean a collective reference to the Unit 1
Principal Portion and the Unit 2 Principal Portion.
"Unit Sites" shall mean a collective reference to the Units 1 and 2 Site.
"Units" shall mean, as the context may require, either Unit 1 or Unit 2.
"Units 1 and 2" shall mean, collectively, ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇.
"Units 1 and 2 Interest" shall mean a collective reference to the undivided
interest in Units 1 and 2 and the Related Common Facilities conveyed to the
Owner Lessor pursuant to the ▇▇▇▇ of Sale, and shall consist of the Unit 1
Interest and the Unit 2 Interest.
"Units 1 and 2 Site" shall mean the land on which Units 1 and 2 are situated,
which is described as the Units 1 and 2 Site in Exhibit A to the Site Lease and
Sublease, and all rights of way, easements, permits and other appurtenances to
such land (including the Water Rights) described on such Schedule or otherwise,
and specifically excluding the Transmission Facilities and the Common Facilities
Site.
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"Units 3 and 4" shall mean, collectively, ▇▇▇▇ ▇ and Unit 4.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction in the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Verifier" shall have the meaning specified in Section 3.5(c) of the Facility
Lease.
"Vote Sharing Agreement" shall mean that certain project committee vote sharing
agreement between PPL Montana and MPC entered into as of December 17, 1999.
"Water Rights" shall mean any and all rights of PPL Montana to use, apply and
appropriate water necessary for make-up, cooling, pollution control, screen
cleansing and other auxiliary uses associated with and necessary to the
efficient operation of the Facility, including, all appropriative rights
recognized under Montana law. These appropriative rights are included in the
claim made by Claim No. 42KJ-W-094423-00 filed with the Montana Water Courts.
"Wintergreen Renewal Lease Terms" shall have the meaning specified in Section
15.2 of the Facility Lease.
"Working Capital Facility" shall mean any Revolving Loan (as such term is
defined in the Credit Agreement) extended to PPL Montana pursuant to tranche B
of the Credit Agreement.
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Index
"Dollars" or the sign "$" .............. 13
Abstract of Lease ...................... 4
Acquired Indebtedness .................. 4
Actual Knowledge ....................... 4
Additional Certificates ................ 4
Additional Equity Investment ........... 4
Additional Lessor Notes ................ 4
Additional Subsidiary .................. 4
Advisors to the Facility Lessee ........ 4
Affiliate .............................. 4
After-Tax Basis ........................ 5
Allocated Rent ......................... 5
Applicable Law ......................... 5
Applicable Rate ........................ 5
Appraisal Procedure .................... 5
Appraiser .............................. 6
Asset Purchase Agreement ............... 6
Asset Sale ............................. 6
Assigned Documents ..................... 6
Assignment and Assumption Agreement .... 6
Assignment and Reassignment(s) of Project
Agreements ........................... 6
Assumed Deductions ..................... 7
Assumed Tax Rate ....................... 7
Authorized Agent ....................... 7
Balance Sheet .......................... 7
Bankruptcy Code ........................ 7
Basic Lease Rent ....................... 7
Basic Lease Term ....................... 7
Basic Site Lease Term .................. 7
Basic Site Sublease Term ............... 7
▇▇▇▇(s) of Sale ........................ 7
Burdensome Termination Event ........... 7
Business Day ........................... 7
Capital Expenditures ................... 8
Cash Flow Available for Fixed Charges .. 8
Cash Flow to Fixed Charges Ratio ....... 8
Certificate Purchase Agreement ......... 8
Certificateholders ..................... 8
Certificates ........................... 8
Certificates Register .................. 8
Change of Control ...................... 8
Change of Control Premium .............. 9
Claim .................................. 9
Closing ................................ 9
Closing Appraisal ...................... 9
Closing Date .......................... 10
Code .................................. 10
Colstrip Facility Leases .............. 10
Colstrip Project ...................... 10
Colstrip Site ......................... 10
Colstrip Unit 1 ....................... 10
Colstrip Unit 2 ....................... 10
Colstrip Unit 3 ....................... 10
Colstrip Unit 4 ....................... 10
Colstrip Units 1 and 2 ................ 10
Colstrip Units 3 and 4 ................ 10
Common Facilities ..................... 10
Common Facilities 1-2 ................. 10
Common Facilities 1-2 Site ............ 10
Common Facilities 1-2-3-4 ............. 11
Common Facilities 1-2-3-4 Site ........ 11
Common Facilities Agreement ........... 11
Common Facilities Percentage .......... 11
Common Facilities Site ................ 11
Competitor ............................ 11
Component ............................. 11
Consolidated Subsidiary ............... 11
Consolidated Tangible Net Assets ...... 11
Core Subsidiary ....................... 12
Corporate Trust Office ................ 12
Credit Agreement ...................... 12
Debt Covenant Termination Date ........ 12
Debt Portion of Rent .................. 12
Debt Portion of Termination Value ..... 12
Debt to Capital Ratio ................. 12
Deduction Loss ........................ 12
Depreciation Deduction ................ 12
Discount Rate ......................... 13
Distribution .......................... 13
DTC ................................... 13
EBITDA ................................ 13
Effective Date ........................ 13
Effective Rate ........................ 13
Enforcement Notice .................... 13
Engineering Consultant ................ 13
Engineering Report .................... 13
Environmental Condition ............... 13
Environmental Consultant .............. 13
Environmental Laws .................... 13
Environmental Report .................. 14
Equity Contribution Agreement ......... 14
103
Equity Covenant Termination Date ....... 14
Equity' Investment ..................... 14
Equity Portion of Periodic Lease Rent .. 14
Equity Portion of Termination Value .... 14
ERISA .................................. 14
Event of Default ....................... 14
Event of Loss .......................... 14
Excepted Payments ...................... 15
Excepted Rights ........................ 16
Excess Amount .......................... 16
Exchange Act ........................... 16
Excluded Property ...................... 16
Excluded Taxes ......................... 16
Existing Indebtedness .................. 16
Expiration Date ........................ 16
Facility ............................... 16
Facility Lease ......................... 16
Facility Lease Term .................... 16
Facility Lessee ........................ 16
Facility Lessee's Interest ............. 16
Facility Site Sublease ................. 16
Fair Market Rental Value ............... 16
Fair Market Sales Value ................ 16
Federal Power Act ...................... 17
FERC ................................... 17
FERC (Owner Lessor) EWG Notice ......... 18
FERC EWG (Owner Lessor) Order .......... 17
FERC EWG (PPLM) Order .................. 17
FERC OATT Order ........................ 17
FERC Orders ............................ 17
FERC Part 2 Order ...................... 18
FERC Section 203 Order ................. 18
FERC Section 205 Order ................. 18
FERC Waiver Order ...................... 18
Final Determination .................... 18
First Wintergreen Renewal Lease Term ... 18
Fixed Charges .......................... 18
Fixed Lease Term ....................... 18
FMV Renewal Lease Term ................. 18
Fuel Consultant ........................ 19
Fuel Report ............................ 19
GAAP ................................... 19
Governmental Entity .................... 19
Ground Interest ........................ 19
Ground Lessee .......................... 19
Ground Lessor .......................... 19
Ground Lessor's Release Rights ......... 19
Ground Sublessee ....................... 19
Ground Sublessor ....................... 19
Guarantor .............................. 19
Guaranty ............................... 19
Hazardous Substance .................... 19
Holding Company Act .................... 20
Inclusion Loss ......................... 20
Indebtedness ........................... 20
Indemnitee ............................. ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ....................... 20
Indenture Trustee's Liens .............. 20
Independent Appraiser .................. 21
Initial Purchasers ..................... 21
Interest Deductions .................... 21
Interim Lease Rent ..................... 21
Interim Lease Term ..................... 21
Investment ............................. 21
IRS .................................... 21
Lease Debt ............................. 21
Lease Debt Rate ........................ 21
Lease Event of Default ................. 21
Lease Indenture ........................ 22
Lease Indenture Bankruptcy Default ..... 22
Lease Indenture Event of Default ....... 22
Lease Indenture Payment Default ........ 22
Lease Indenture Trustee ................ 22
Lease Indenture Trustee Office ......... 22
Lease Indenture Trustee's Account ...... 22
Lease Obligations ...................... 22
Lease Payment Obligations .............. 22
Lessee Action .......................... 23
Lessee Person .......................... 23
Lessee Section 467 Interest ............ 23
Lessee Section 467 Loan Balance ........ 23
Lessor Estate .......................... 23
Lessor Manager ......................... 23
Lessor Note ............................ 23
Lessor Possession Date ................. 23
Lessor Section 467 Interest ............ 23
Lessor Section 467 Loan Balance ........ 23
Lien ................................... 23
List of Competitors .................... 23
LLC Agreement .......................... 24
Loans .................................. 24
Majority in Interest of Noteholders .... 24
Make Whole Premium ..................... 24
Market Consultant ...................... 24
Market Report .......................... 24
Material Adverse Effect ................ 24
Maximum Probable Loss .................. 24
Member interest ........................ 24
Minimum Credit Standard ................ 25
Modification ........................... 25
Montana Assets ......................... 25
▇▇▇▇▇'▇ ................................ 25
46
104
MPC ..................................... 25
Non-Recourse Indebtedness ............... 25
Nonseverable Modifications .............. 25
Note Register ........................... 25
Noteholder .............................. 25
Notes ................................... 25
Obsolescence Termination Date ........... 25
Offering Memorandum ..................... 26
Officer's Certificate ................... 26
Omnibus Voting Agreement ................ 26
OP Guarantor ............................ 26
OP Member ............................... 26
OP Member Interest ...................... 26
OP Parent Guaranty ...................... 26
Operating Agreement 1-2 ................. 26
Operative Documents ..................... 26
Operator ................................ 26
Optional Modification ................... 27
Original LLC Agreement .................. 27
Other Bills of Sale ..................... 27
Other Colstrip Lease Transactions ... 27, 28
Other Facility Lease .................... 27
Other Ground Interests .................. 27
Other Lease Indenture Trustees .......... 27
Other Lease Indentures .................. 27
Other Lessor Managers ................... 27
Other Operative Documents ............... 27
Other Owner Lessors ..................... 27
Other Owner Participants ................ 27
Other Participation Agreements .......... 27
Other Site Lease and Sublease ........... 28
Other Undivided Interest ................ 28
Overdue Rate ............................ 28
Owner Committee ......................... 29
Owner Lessor ............................ 28
Owner Lessor's Account .................. 28
Owner Lessor's Interest ................. 28
Owner Lessor's Lien ..................... 28
Owner Lessor's Percentage ............... 28
Owner Participant ....................... 28
Owner Participant's Account ............. 28
Owner Participant's Commitment .......... 29
Owner Participant's Lien ................ 29
Owner Participant's Net Economic Return . 29
Ownership Agreement 1-2 ................. 29
Ownership Agreement 3-4 ................. 29
Ownership Agreements .................... 29
Ownership and Operating Agreements 1-2 .. 29
Participation Agreement ................. 29
Pass Through Trust ...................... 30
Pass Through Trust Agreement ............ 30
Pass Through Trustee .................... 30
Periodic Lease Rent ..................... 30
Permitted Business ...................... 30
Permitted Encumbrances .................. 30
Permitted Instruments ................... 30
Permitted Investment .................... 31
Permitted Liens ......................... 31
Permitted Securities .................... 32
Person .................................. 32
Plan .................................... 32
Pollution Control Facilities ............ 32
Portland ................................ 32
Power Market Consultant ................. 32
PPA ..................................... 32
PPA Period .............................. 33
PPL Corporation ......................... 33
PPL Montana ............................. 33
Pricing Assumptions ..................... 33
Principal Portion ....................... 33
Proceeds ................................ 33
Project Agreements ...................... 33
Project Committee ....................... 33
Proportional Rent ....................... 33
Prudent Industry Practice ............... 33
Puget ................................... 34
Purchase Price .......................... 34
Qualified Shareholder ................... 34
Qualifying Cash Bid ..................... 34
Qualifying Letter of Credit ............. 34
Qualifying Letter of Credit Bank ........ 34
Rating Agencies ......................... 34
Rebuilding Closing Date ................. 34
Redemption Date ......................... 34
Regulatory Event of Loss ................ 35
Related Common Facilities ............... 35
Related Common Facilities Interest ...... 35
Related Common Facilities Interest 1 .... 35
Related Common Facilities Interest 2 .... 35
Related Common Facilities Site .......... 35
Related Ground Interest ................. 35
Related Lease Indenture Trustee ......... 35
Related Owner Lessor .................... 35
Related Party ........................... 35
Related Site ............................ 35
Related Transaction ..................... 36
Released Property ....................... 36
Renewal Lease Rent ...................... 36
Renewal Lease Term ...................... 36
Renewal Site Lease Term ................. 36
Renewal Site Sublease Term .............. 36
Rent .................................... 36
47
105
Rent Payment Date ....................... 36
Rent Payment Period ..................... 36
Replacement Component ................... 36
Required Modification ................... 36
Requisition ............................. 36
Responsible Officer ..................... 36
Restricted Investment ................... 37
Restricted Payment ...................... 37
Revenues ................................ 37
Rights Sharing Agreement ................ 37
S&P ..................................... 37
Scheduled Closing Date .................. 37
Scheduled Lease Expiration Date ......... 38
Scheduled Payment Date .................. 38
Scheduled to be Paid .................... 38
SEC ..................................... 38
Second Wintergreen Renewal Lease Term ... 38
Section 467 Interest .................... 38
Section 467 Loan Balance ................ 38
Secured Indebtedness .................... 38
Securities Act .......................... 38
Security ................................ 38
Severable Modification .................. 38
Significant Indenture Default ........... 39
Significant Lease Default ............... 38
Site Lease and Sublease ................. 39
Site Lease Term ......................... 39
Site Sublease Term ...................... 39
Site(s) ................................. 39
Special Lessee Transfer ................. 39
Special Lessee Transfer Amount .......... 39
Special Lessee Transfer Event ........... 39
Subsidiary .............................. 40
Supplemental Financing .................. 40
Supplemental Lease Rent ................. 40
Tax ..................................... 40
Tax Advance ............................. 40
Tax Assumptions ......................... 40
Tax Benefit ............................. 40
Tax Claim ............................... 40
Tax Event ............................... 40
Tax Indemnitee .......................... 40
Tax Indemnity Agreement ................. 40
Tax Law Change .......................... 40
Tax Loss ................................ 41
Tax Representation ...................... 41
Tax Shelter Designation Agreement ....... 41
Taxes ................................... 40
Term .................................... 41
Termination Date ........................ 41
Termination Value ....................... 41
Title Policies .......................... 41
Total Capitalization .................... 41
Transaction ............................. 41
Transaction Cost Deductions ............. 43
Transaction Costs ....................... 41
Transaction Party(ies) .................. 44
Transferee .............................. 44
Transmission Facilities ................. 44
Treasury' Regulations ................... 44
Trust Company ........................... 44
Trust Indenture Act ..................... 44
U.S. Government Obligations ............. 46
UCC ..................................... 44
Undivided Interest ...................... 44
Uniform Commercial Code ................. 44
Unit 1 .................................. 44
Unit 1 interest ......................... 44
Unit 1 Principal Portion ................ 44
▇▇▇▇ ▇ ▇▇▇▇ ............................. ▇▇
▇▇▇▇ ▇ .................................. 45
Unit 2 Interest ......................... 45
Unit 2 Principal Portion ................ 45
▇▇▇▇ ▇ ▇▇▇▇ ............................. ▇▇
▇▇▇▇ ▇ .................................. 45
▇▇▇▇ ▇ ▇▇▇▇ ............................. ▇▇
▇▇▇▇ ▇ .................................. 45
Unit 4 Site ............................. 45
Unit Interest ........................... 45
Unit Percentage ......................... 45
Unit Principal Portion .................. 45
Unit Site ............................... 45
Units ................................... 45
Units 1 and 2 ........................... 46
Units 1 and 2 Interest .................. 46
Units 1 and 2 Site ...................... 46
Units 3 and 4 ........................... 46
Verifier ................................ 46
Vote Sharing Agreement .................. 46
Water Rights ............................ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Lease Term .......... 46
Working Capital Facility ................ 47
48
106
EXHIBIT A
to
Lease Indenture
---------------
DESCRIPTION OF SITES
--------------------
(1) Units 1 and 2 Site
Parcel 1 That portion of Section 34 in Township 2 North, Range 41 East, PMM,
described as ▇▇▇▇▇▇ ▇-▇ ▇▇▇ ▇-▇-▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
amending Certificate of Survey No. 27875 (Tract 1), ▇▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇ and Dedication of ▇▇▇▇▇▇ ▇-▇-▇, ▇-▇-▇, ▇-▇ and 1-D filed July
30, 1986 for record in the office of the Clerk and Recorder of
Rosebud County, Montana, under Document No. 54257.
Parcel 2 That portion of Section 21 in Township 2 North, Range 41 East, PMM,
described as ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ filed June
3, 1980 for record in the office of the Clerk and Recorder of
Rosebud County, Montana, under Document No. 27873.
Parcel 2A That portion of the N 1/2 of Section 28, Township 2 North, Range 41
East described as Parcel 2A of Certificate of Survey No. 85514 filed
March 10, 1999 for record in the office of the Clerk and Recorder of
Rosebud County, Montana as Document No. 85514.
Parcel 3 That part of Section 29 in Township 2 North, Range 41 East, PMM,
described as ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ filed June
3, 1980 for record in the office of the Clerk and Recorder of
Rosebud County, Montana as Document No. 27877.
Parcel 4 That portion of the E 1/2 of Section 34, Township 2 North, Range
41 East, PMM described as Parcel ▇-▇-▇ ▇▇▇ ▇▇▇▇▇▇ ▇-▇-▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ filed March 10, 1999 for record in
the office of the Clerk and Recorder of Rosebud County, Montana as
Document No. 85561.
Parcel 4A That portion of the N 1/2 of Section 3, Township 1 North, Range 41
East, PMM and the SE 1/4 of Section 34, Township 2 North, Range 41
East, PMM described as Parcel 4A of Certificate of Survey 85515
filed March 10, 1999 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 85515, excluding
therefrom ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ filed October 29,
1987 for record in the office of the Clerk and Recorder of Rosebud
County, Montana as Document No. 58701.
Parcel 5 Township 2 North, Range 41 East, P.M.M., Rosebud County, Montana
Section 20: All
EASEMENT: Easement for utilities reserved by Montana Power Company and Puget
Sound Power & Light Company in Deed dated April 1, 1983, recorded
May 2, 1983 in
A-1
107
Book 79 Deeds, page 648, over and across a part of the following
described real property:
That portion of Sections 34 and 35 in Township 2 North, Range 41
East, P.M.M., described as Parcel 3 Amended Certificate of Survey
No. 85124 filed December 30, 1998 in the Office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 85124.
(2) Common Facilities 1-2 Site
Parcel 12A That portion of Sections-34 & 35. Township 2 North, Range 41
East, PMM, described as an 80-foot wide easement, being the
northerly 8O feet of Parcel 3 depicted on Certificate of Survey No.
34152, on file in the office of the Clerk and Recorder of Rosebud
County, Montana, and running between ▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇
of said Parcel 3, for utilities (including, but not limited to,
electrical conduit, water lines, conveyor systems and related
facilities), right-of-way and access; and
Parcel 12B That portion of Sections 34 & 35, Township 2 North, Range 41
East, PMM, described as a 30-foot wide easement being the northerly
30 feet of Parcel 3 depicted on Certificate of Survey No. 34152, on
file in the office of the Clerk and Recorder of Rosebud County,
Montana, and running between ▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇▇▇▇
3, for utilities (including, but not limited to electrical conduit,
water lines, conveyor systems and related facilities), right-of-way
and access.
Both reserved in a deed dated April 1, 1983, recorded in Book 79
Deeds, page 648, records in the office of the Clerk and Recorder of
Rosebud County, Montana.
(3) [Common Facilities 1-2-3-4 Site]
Parcel 35 That portion of Sections 34 and 35 in Township 2 North, Range 41
East, PMM, described as Parcel B Certificate of Survey No. 34152
filed January 8, 1981 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 34152.
Parcel 36 That portion of Sections 27 and 34 in Township 2 North, Range 41
East, PMM, described as Parcel C of Certificate of Survey No. 34153
filed January 8, 1981 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 34153.
Parcel 37 That portion of Section 35 in Township 2 North, Range 41 East &
Section 2 in Township 1 North, Range 41 East, PMM, described as
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ of Certificate of Survey No. 34995
filed March 25, 1982 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 34995.
▇-▇
▇▇▇
▇▇▇▇▇▇ 38 That portion of Section 3 in Township 1 North, Range 41 East, PMM,
described as Parcel G of Certificate of Survey No. 34996 filed March
25, 1982 for record in the office of the Clerk and Recorder of
Rosebud County, Montana as Document No. 34996.
Parcel 39 That portion of Section 34 in Township 2 North, Range 41 East, PMM,
described as Parcel ▇-▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇,
filed March 17, 1999 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 85561, excluding
therefrom a tract of land described as Parcel A-1-B of Certificate
of Survey 85561
Parcel 40 That portion of Sections 28 and 33 in Township 2 North, Range 41
East, PMM, described as Parcel F-l Amended and Parcel F-2 Amended
of Certificate of Survey No. 85920 filed May 4, 1999 for record in
the office of the Clerk and Recorder of Rosebud County, Montana as
Document No. 85920.
Parcel 41 That portion of Section 34 in Township 2 North, Range 41 East, PMM,
described as Parcel D-l and Parcel ▇-▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ filed January 10, 1984 for record in the office of the Clerk
and Recorder of Rosebud County, Montana as Document No. 42210.
Parcel 42 That portion of Section 34 in Township 2 North, Range 41 East, PMM,
described as ▇▇▇▇▇ ▇-▇-▇, ▇▇▇▇▇ ▇-▇-▇ and Tract 1-A-3 of Certificate
of Survey No. 54257 amending Certificate of Survey No. 27875 (Tract
1), Certificate of Survey ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
and Dedication of ▇▇▇▇▇▇ ▇-▇-▇, ▇-▇-▇, ▇-▇ and 1-D, filed July 30,
1986 for record in the office of the Clerk and Recorder of Rosebud
County, Montana as Document No. 54257, subject to dedication of
Tract 1-A-2 (Willow Avenue) as a public road.
Parcel 43 That portion of Section 24 in Township 6 North, Range 39 East, PMM,
described as Tract A and Tract C of Certificate of Survey No. 6100
filed February 13, 1974 for record in the office of the Clerk and
Recorder of Rosebud County, Montana as Document No. 6100.
Parcel 44 That parcel commencing at the section corner common Sections
Thirteen (13), Fourteen (14), Twenty-three (23) and Twenty-four
(24), Township Six (6) North, of Range Thirty-nine (39) East,
M.P.M., Rosebud County, Montana, running thence northerly along the
section line common to Sections Fourteen (14) and Thirteen (13) to
the Yellowstone River; running thence southeasterly along the
Yellowstone River to a point where the south boundary line of
Section Thirteen (13) meets the Yellowstone River; thence westerly
along the south boundary line of the said Section Thirteen (13) to
the point of beginning, containing in all approximately 17 acres as
described in deed dated December 7, 1973, recorded December 12, 1973
in Book 73, Page 127 and confirmed in Judgment and Decree dated
March 21, 1975 by The District Court of the Sixteenth Judicial
District, in and for the County of Rosebud, recorded March 21, 1975
in Book 19 Orders and
A-3
109
Decree, page 996, records of the County Clerk and Recorder of
Rosebud County, Montana.
Parcel 45 Easements and rights-of-way more particularly described in documents
recorded in the office of the Clerk and Recorder of Rosebud County.
Montana, under the following Book and Page numbers; which documents
are incorporated herein by this reference and made a part hereof:
Book 77 Deeds, page 29
Book 75 Deeds, page 306
Book 73 Deeds, page 430
Book 73 Deeds, page 466
Book 74 Deeds, page 245
Book 78 Deeds, page 782
Book 78 Deeds, page 838
Book 74 Deeds, page 169
Book 74 Deeds, page 110
Book 74 Deeds, page 70
Book 77 Deeds, page 941
Book 78 Deeds, page 134
Book 79 Deeds, page 238
Book 74 Deeds, page 14
Book 74 Deeds, page 65
Book 74 Deeds, page 112
Book 79 Deeds, page 240
Book 74 Deeds, page 62
Book 74 Deeds, page 67
Book 74 Deeds, page 242
Book 73 Deeds, page 891
Book 73 Deeds, page 893
Book 73 Deeds, page 284
Book 78 Deeds, page 131
Book 32 Misc., page 476
A-4
110
EXHIBIT B
to
Lease Indenture
---------------
FORM OF LESSOR NOTE
B-1
111
EXHIBIT B
MONTANA 0L3 LLC
NONRECOURSE PROMISSORY NOTE DUE IN
A SERIES OF INSTALLMENTS OF PRINCIPAL
WITH FINAL PAYMENT DATE
OF JULY 2, 2020
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
No. BA1/2 Issued at: New York, New York
Issue Date: July 20, 2000
$146,237,669.38
MONTANA 0L3 LLC, a Delaware limited liability company (herein called the
"Owner Lessor", which term includes any successor person under the Lease
Indenture hereinafter referred to), hereby promises to pay to The Chase
Manhattan Bank, in its capacity as trustee of the Colstrip 2000 Pass Through
Trust, or its registered assigns, the principal sum of ONE HUNDRED FORTY SIX
MILLION TWO HUNDRED THIRTY SEVEN THOUSAND SIX HUNDRED SIXTY-NINE DOLLARS 38/100
($146,237,669.38), which is due and payable in a series of installments of
principal with a final payment date of July 20, 2020, as provided below,
together with interest at the rate of 8.903% 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
January 2, 2001, and on each July 2nd and January 2nd 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 and 2 hereto. The installment of
principal payable on any such date shall be in an aggregate amount equal to the
sum of (x) unless the Unit 1 Principal Portion has been prepaid, the product of
the Unit 1 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, and (y) unless the Unit 2 Principal Portion has been
prepaid, the product of the Unit 2 Principal Portion set forth on Schedule 2
multiplied by the percentage set forth on Schedule 2 under the column headed
"Principal Amount Payable" for such date; provided that the final installment of
principal shall be equal to the then unpaid principal balance of this Note.
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
112
Agreement (BA1/2) dated as of July 20, 2000 (the "Lease Indenture"), between
the Owner Lessor and The Chase Manhattan Bank, as trustee (the "Lease 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 Lease 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 Lease Indenture shall be made only from the Indenture Estate, and the
Lease Indenture Trustee shall have no obligation for the payment thereof except
to the extent that the Lease 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 Lease 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 Lease Indenture Trustee is or shall be personally liable to the
holder hereof for any amounts payable under this Note or under the Lease
Indenture, or, except as expressly provided in the Lease Indenture or, in the
case of the Owner Participant and the Owner Lessor, the Participation Agreement
for any performance to be rendered under the Lease Indenture or any Assigned
Document or for any liability under the Lease Indenture or any Assigned
Document.
The principal of and premium, if any, and interest on this Note shall be
paid by the Lease 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 Lease 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 Lease Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Lease Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Lease 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 distributed by the Lease Indenture Trustee are actually received
by the Lease Indenture Trustee if such
2
113
amounts are received by 11:00 a.m.. 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 Lease 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 Lease 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 Lease 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 Lease 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 Lease 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 Lease Indenture as the "Lessor
Note". The Lease Indenture permits the issuance of additional notes ("Additional
Lessor Notes"), as provided in Section 2.12 of the Lease 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 Lease Indenture Trustee to the extent provided in the Lease
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 Lease Indenture.
Reference is hereby made to the Lease 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 Lease 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
Lease Indenture, as follows: (x) in the case of redemptions under the
circumstances set forth in Section 2.10(a) of the Lease Indenture, at a price
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 Lease
Indenture, at a price equal to the principal amount of this
3
114
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
Lease Indenture Trustee to the holder hereof as provided in the Lease 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 Lease 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 Lease 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 Lease Indenture, be
declared or may become due and payable in the manner and with the effect
provided in the Lease Indenture.
There shall be maintained at the Lease Indenture Trustee Office a register
for the purpose of registering transfers and exchanges of Notes in the manner
provided in the Lease Indenture. The transfer of this Note is registrable. as
provided in the Lease 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 Wilmington Trust Company' ("Wilmington"),
not individually or personally but solely as manager of the Owner Lessor under
the LLC Agreement, 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 Wilmington 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 Wilmington 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 Wilmington, 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 Note.
This Note shall be governed by the laws of the State of New York.
4
115
IN WITNESS WHEREOF, the Owner Lessor has caused this Note to be duly
executed as of the date hereof.
MONTANA 0L3 LLC
By: Wilmington Trust Company,
not in its individual capacity, but solely as
the Lessor Manager under the LLC Agreement
By: _________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
116
This is the Lessor Note referred to in the within-mentioned Lease
Indenture.
The Chase Manhattan Bank,
not in its individual capacity, but solely as the
Lease Indenture Trustee
By: ______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
117
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.
118
SCHEDULE 1
TO NOTE
Schedule Of Principal Amortization For ▇▇▇▇ ▇
▇▇▇▇ ▇ Principal Portion: $[_________________]
Principal Amount Payable
Payment Date (% of Unit 1 Principal Portion)
------------------- --------------------------------------
S-1-1
119
SCHEDULE 2
TO NOTE
Schedule Of Principal Amortization For ▇▇▇▇ ▇
▇▇▇▇ ▇ Principal Portion: $[________________]
Principal Amount Payable
Payment Date (% of Unit 2 Principal Portion)
------------------- --------------------------------------
S-2-1
120
EXHIBIT C
to
Lease Indenture
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Lease Indenture.
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as the Lease Indenture Trustee
By:______________________________________
Name:
Title:
C-1
121
EXHIBIT D
to
Lease Indenture
DESCRIPTION OF FACILITY
▇▇▇▇ ▇
▇▇▇▇ ▇ consists of Colstrip Unit No. 1, a 333 MW (gross capacity)
coal-fired steam electric generating unit, located on the Units 1 and 2 Site in
Rosebud County, Montana, including, without limitation, the assets described in
Schedule D-I hereto, but excluding the Common Facilities.
▇▇▇▇ ▇
▇▇▇▇ ▇ consists of Colstrip Unit No. 2, a 333 MW (gross capacity)
coal-fired steam electric generating unit, located on the Units 1 and 2 Site in
Rosebud County, Montana, including, without limitation, the assets described in
Schedule D-2 hereto, but excluding the Common Facilities.
Common Facilities 1-2
The Common Facilities 1-2 consists of all items of property, constructed
or installed for use by Units 1 and 2 in common pursuant to the Ownership and
Operating Agreements 1-2, and shall include, without limitation, the assets
described in Schedule D-3 hereto, other than those items listed on such schedule
that are required for use by Units 1and 2 and Units 3 and 4 in common pursuant
to the Common Facilities Agreement.
Common Facilities 1-2-3-4
The Common Facilities 1-2-3-4 consists of all items of property,
constructed or installed for use by both of Units 1 and 2 and Units 3 and 4 in
common pursuant to the Common Facilities Agreement, and shall include, without
limitation, the Yellowstone river pumping plant, the surge pond, the
environmental building, the warehouse, the machine shop, the auto shop, the
training center, the administration building, the auxiliary services building,
the garage/warehouse, the meteorological and air quality monitoring structures,
and each of the other assets described in Schedule D-3 hereto to be used by both
of Units 1 and 2 and Units 3 and 4 in common pursuant to the Common Facilities
Agreement.
D-1
122
SCHEDULE D-1
Unit 1
--------------------------------------------------------------------------------
FERC Account 311
Structures and Improvements
Other Facilities
Brine Concentrator, Wash Tray, Pump Building
Station Building
--------------------------------------------------------------------------------
FERC Account 311.2
Pollution Control Equipment
Ash Water Handling
Ash Handling Facilities
--------------------------------------------------------------------------------
FERC Account 312
Boiler Plant Equipment
Boiler Supporting Structures
Boiler Pressure Parts
Boiler Non-Pressure Parts
Soot Blower Equipment
Forced Draft Fans
Combustion Air Ducts
Main Combustion Air Heaters
Steam Supplied Combustion Air Preheaters
Coal Handling Equipment
Coal Feeders
Pulverized Fuel Equipment
Gas Fuel Equipment
Bottom Ash, Economizer Ash and Pyrite Handling System
Boiler Blowoff Tank
Deaerator Feedwater Heater with Storage Tank
Feedwater Heater #1-1
Feedwater Heater #1-2
Booster Pumps
Feedwater Heater #1-4
Feedwater Heater #1-5
Boiler Feed Pumps
Feedwater Heater #1-6
Boiler Plant Piping
Piping Labor Operations
Auxiliary Steam System
Boiler Water Treating Equipment
Condensate Storage Tanks
Stack
Induced Draft Fans
Other Auxiliary Equipment
--------------------------------------------------------------------------------
FERC Account 312.2
Pollution Control Equipment
Air Quality Control System
Scrubber
-------------------------------------
123
Unit 1
--------------------------------------------------------------------------------
FERC Account 314
Turbogenerator Units
Pedestal Substructures
Turbine Generator
Excitation and Voltage Regulation Systems
Lubricating Oil Systems
Stator Cooling Water System
Hydrogen Gas System
Bearing Cooling Water System
Condenser and Accessories
Condensate Pumps
Cooling Tower
Circulating Water Pumps
Lubricating Oil
--------------------------------------------------------------------------------
FERC Account 315
Accessory Electric Equipment
Conduits and Trays
Station Service and Startup Transformers
Generation Main Bus
Station Service Busways
Motor Control Centers
Local Control Stations and Receptacles
Wire and Cable
Switch Gear Control and Protective Equipment
Storage Battery Equipment
Misc. Electrical Material and Labor
Digital / Analog Control System
Control Boards
Miscellaneous Costs
--------------------------------------------------------------------------------
FERC Account 316
Miscellaneous Power Plant Equipment
Air Compressor Equipment
124
Unit 2
FERC
Account
--------------------------------------------------------------------------------
311 Structures and Improvements
311-14 Other Facilities
311-17 Brine Concentrator, Wash Tray, Pump Building
311-18 Station Building
--------------------------------------------------------------------------------
311.2 Pollution Control Equipment
311.2-16 Ash Water Handling
311.2-17 Ash Handling Facilities
--------------------------------------------------------------------------------
312 Boiler Plant Equipment
312-11 Boiler Supporting Structures
312-12 Boiler Pressure Parts
312-13 Boiler Non-Pressure Parts
312-14 Soot Blower Equipment
312-15 Forced Draft Fans
312-16 Combustion Air Ducts
312-17 Main Combustion Air Heaters
312-18 Steam Supplied Combustion Air Preheaters
312-20 Coal Handling Equipment
312-21 Coal Feeders
312-22 Pulverized Fuel Equipment
312-26 Bottom Ash, Economizer Ash and Pyrite Handling System
312-27 Boiler Blowoff Tank
312-39 Deaerator Feedwater Heater with Storage Tank
312-30 Feedwater Heater #1-1
312-31 Feedwater Heater #1-2
312-33 Booster Pumps
312-34 Feedwater Heater #1-4
312-35 Feedwater Heater #1-5
312-36 Boiler Peed Pumps
312-37 Feedwater Heater #1-6
312-38 Boiler Plant Piping
312-39 Miscellaneous Pumps and Drives
312-40 Piping Labor Operations
312-41 Auxiliary Steam System
312-46 Boiler Water Treating Equipment
312-47 Condensate Storage Tanks
312-51 Stack
312-52 Induced Draft Fans
312-87 Other Auxiliary Equipment
--------------------------------------------------------------------------------
312.2 Pollution Control Equipment
312.2-50 Air Quality Control System
125
Unit 2
FERC
Account
--------------------------------------------------------------------------------
312.2-52 Scrubber
--------------------------------------------------------------------------------
314 Turbogenerator Units
314-11 Pedestal Substructures
314-14 Turbine Generator
314-17 Excitation and Voltage Regulation Systems
314-20 Lubricating Oil Systems
314-21 Stator Cooling Water System
314-22 Hydrogen Gas System
314-24 Bearing Cooling Water System
314-35 Condenser and Accessories
314-36 Condensate Pumps
314-37 Cooling Tower
314-38 Circulating Water Pumps
314-39 Circulating Water Ducts
--------------------------------------------------------------------------------
315 Accessory Electric Equipment
315-15 Conduits and Trays
315-18 Station Service and Startup Transformers
315-19 Generation Main Bus
315-21 Motor Control Centers
315-22 Local Control Stations and Receptacles
315-26 Wire and Cable
315-30 Switch Gear Control and Protective Equipment
315-36 Storage Battery Equipment
315-49 Misc. Electrical Material and Labor
315-49 Misc. Electrical Material and Labor
315-60 Digital / Analog Control System
315-61 Control Boards
--------------------------------------------------------------------------------
316 Miscellaneous Power Plant Equipment
316-11 Air Compressor Equipment
126
SCHEDULE D-3
Common Facilities 1-2 and Common Facilities 1-2-3-4
FERC
Account
--------------------------------------------------------------------------------
311 Structures and Improvements
311-11 Site Preparation and Improvements
311-12 Site Facilities
311-14 Other Facilities
311-15 Water Supply System
311-17 Brine Concentrator, Wash Tray, Pump ▇▇▇▇▇▇▇▇
▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
311-19 Other Structures
311-21 Water Supply System - Common
311-22 Intake Structure Equipment
311-23 Surge Pond #1 Structures
311-24 Surge Pond #I
--------------------------------------------------------------------------------
311.2 Pollution Control
311.2-16 Ash Water Handling
311.2-17 Ash Handling Facilities
--------------------------------------------------------------------------------
312 Boiler Plant Equipment
312-19 Coal Delivery Facilities
312-23 Gas Fuel Equipment
312-38 Boiler Plant Piping
312-40 Piping Labor Operations
312-41 Auxiliary Steam System
312-45 Auxiliary Boilers
312-46 Boiler Water Treating Equipment
312-48 Water Management Costs
312-87 Other Auxiliary Equipment
--------------------------------------------------------------------------------
312.2 Pollution Control Equipment
312.2-50 Air Quality Control System
312.2-52 Scrubber
--------------------------------------------------------------------------------
314 Turbogenerator Units
314-20 Lubricating Oil Systems
314-22 Hydrogen Gas System
314-48 Brine Concentrator
314-49 Water Management Costs
Miscellaneous Costs
127
Common Facilities 1-2 and Common Facilities 1-2-3-4
FERC
Account
--------------------------------------------------------------------------------
315 Accessory Electric Equipment
315-15 Conduits and Trays
315-18 Station Service and Startup Transformers
315-21 Motor Control Centers
315-26 Wire and Cable
315-30 Switch Gear Control and Protective Equipment
315-49 Misc. Electrical Material and Labor
315-51 Emergency Generators
315-60 Digital / Analog Control System
315-61 Control Boards
315-62 Computer Data Logger
--------------------------------------------------------------------------------
316 Miscellaneous Power Plant Equipment
316-11 Air Compressor Equipment
316-12 Building Crane and Miscellaneous Hoists
316-13 Office Shop and Laboratory
316-14 Miscellaneous Equipment
316-15 Office Shop and Laboratory
Additional Equipment