Exhibit 4.1
EXECUTION COPY
TRUST INDENTURE
among
TENASKA GEORGIA PARTNERS, L.P.,
as Issuer,
THE CHASE MANHATTAN BANK,
as Depositary Bank,
and
THE CHASE MANHATTAN BANK,
as Trustee
---------------------------------------------
Dated as of November 1, 1999
---------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND CONSTRUCTION;
INDENTURE TO CONSTITUTE CONTRACT; AGENCY
Section 1.1 Defined Terms..................................................................................2
Section 1.2 Principles of Construction.....................................................................6
Section 1.3 Indenture to Constitute Contract...............................................................6
Section 1.4 Conflict with Trust Indenture Act..............................................................6
ARTICLE II
THE BONDS
Section 2.1 Authorization, Amount, Terms and Issuance of Bonds.............................................6
Section 2.2 Authorization and Terms of the Initial Bonds...................................................6
Section 2.3 Additional Bonds...............................................................................8
Section 2.4 Record Dates..................................................................................10
Section 2.5 Form of Bonds.................................................................................10
Section 2.6 Maintenance of Offices and Agencies...........................................................12
Section 2.7 Transfer and Exchange of Bonds................................................................14
Section 2.8 Execution.....................................................................................20
Section 2.9 Authentication and Delivery...................................................................21
Section 2.10 Mutilated, Destroyed, Lost or Stolen Bonds....................................................21
Section 2.11 Temporary Bonds...............................................................................22
Section 2.12 Cancellation and Destruction of Surrendered Bonds.............................................22
Section 2.13 Officers' Certificates and Opinions of Counsel................................................22
Section 2.14 Form of Certificates and Opinions Delivered to Trustee........................................23
Section 2.15 Delivery of Certificates to Rating Agencies...................................................23
ARTICLE III
REDEMPTION OF BONDS
Section 3.1 Redemption at the Option of the Partnership or the Holders....................................24
Section 3.2 Mandatory Redemption..........................................................................24
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Section 3.3 Redemption Account............................................................................25
Section 3.4 Notice of Redemption..........................................................................25
Section 3.5 Bonds Payable on Redemption Date..............................................................26
Section 3.6 Selection of Bonds to be Redeemed.............................................................27
Section 3.7 Bonds Redeemed in Part........................................................................27
ARTICLE IV
COVENANTS
Section 4.1 Covenants.....................................................................................28
ARTICLE V
ACCOUNTS AND PROJECT REVENUES
Section 5.1 Establishment of Indenture Accounts...........................................................28
Section 5.2 Payments into Construction Interest Account; Application of Monies in
Construction Interest Account.................................................................28
Section 5.3 Payments into Bond Payment Account............................................................28
Section 5.4 Application of Funds in Interest Sub-Account and Principal Sub-Account........................29
Section 5.5 Investment of Monies in the Accounts..........................................................29
Section 5.6 Monies to be Held in Trust....................................................................29
Section 5.7 Dominion and Control..........................................................................29
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties................................................................30
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
Section 7.1 Events of Default.............................................................................30
Section 7.2 Remedies Upon an Event of Default.............................................................30
Section 7.3 Judicial Proceedings Instituted by Trustee....................................................32
Section 7.4 Control by Holders............................................................................34
Section 7.5 Waiver of Defaults and Events of Default......................................................34
Section 7.6 Limitation on Suits by Holders................................................................34
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Section 7.7 Undertaking to Pay-Court Costs................................................................35
Section 7.8 Unconditional Right to Receive Payment........................................................35
Section 7.9 Application of Monies Collected by Trustee....................................................35
Section 7.10 Waiver of Appraisement, Valuation, Stay and Right to Marshalling..............................36
Section 7.11 Remedies Cumulative; Delay or Omission Not Waiver.............................................37
Section 7.12 The Collateral Agency Agreement...............................................................37
ARTICLE VIII
ACTS OF HOLDERS
Section 8.1 Acts of Holders...............................................................................37
Section 8.2 Purposes for Which Holders' Meeting May Be Called.............................................39
Section 8.3 Call of Meetings by Trustee...................................................................39
Section 8.4 The Partnership and Holders May Call Meeting..................................................40
Section 8.5 Persons Entitled to Vote at Meeting...........................................................40
Section 8.6 Determination of Voting Rights: Conduct and Adjournment of Meeting............................40
Section 8.7 Counting Votes and Recording Action of Meeting................................................41
Section 8.8 Bonds Owned by Certain Persons Deemed Not Outstanding.........................................41
Section 8.9 Right of Revocation of Action Taken; Acts of Holders Binding..................................42
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Amendments and Supplements to Indenture Without Consent of Holders............................42
Section 9.2 Amendments and Supplements to Indenture With Consent of Holders...............................43
Section 9.3 Trustee Authorized to Join in Amendments and Supplements; Reliance on Counsel.................43
Section 9.4 Effect of Supplemental Indentures.............................................................43
Section 9.5 Reference in Bonds to Supplemental Indentures.................................................43
ARTICLE X
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 10.1 Satisfaction and Discharge of Indenture.......................................................44
Section 10.2 Defeasance....................................................................................44
Section 10.3 Survival of Obligations.......................................................................47
Section 10.4 Application of Trust Money....................................................................47
Section 10.5 Unclaimed Monies..............................................................................47
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Section 10.6 Indemnity for US Government Obligations.......................................................47
Section 10.7 Reinstatement.................................................................................47
ARTICLE XI
THE TRUSTEE
Section 11.1 Certain Duties and Responsibilities of Trustee................................................48
Section 11.2 Certain Rights of Trustee.....................................................................49
Section 11.3 Notice of Default.............................................................................50
Section 11.4 Not Responsible for Recitals or Issuance of Bonds.............................................50
Section 11.5 May Hold Bonds................................................................................51
Section 11.6 Monies Held in Trust..........................................................................51
Section 11.7 Compensation; Reimbursement; Indemnification..................................................51
Section 11.8 Eligibility...................................................................................51
Section 11.9 Resignation and Removal; Appointment of Successor.............................................52
Section 11.10 Acceptance of Appointment by Successor Trustee................................................53
Section 11.11 Merger Conversion or Succession to Business...................................................53
Section 11.12 Authorization.................................................................................54
Section 11.13 Consequential Damages.........................................................................54
ARTICLE XII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 12.1 Names and Addresses of Holders................................................................54
ARTICLE XIII
THE DEPOSITARY BANK
Section 13.1 Procedures Governing Indenture Accounts.......................................................54
Section 13.2 Appointment of Depositary Bank; Powers and Immunities.........................................55
Section 13.3 Reliance by Depositary Bank...................................................................56
Section 13.4 Court Orders..................................................................................57
Section 13.5 Resignation or Removal........................................................................57
Section 13.6 Expenses; Indemnification; Fees...............................................................58
ARTICLE XIV
MISCELLANEOUS PROVISIONS
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Section 14.1 Third Party Beneficiaries.....................................................................58
Section 14.2 Severability..................................................................................58
Section 14.3 Substitute Notice.............................................................................58
Section 14.4 Notice to Rating Agencies.....................................................................58
Section 14.5 Notices.......................................................................................58
Section 14.6 Successors and Assigns........................................................................59
Section 14.7 Section Headings..............................................................................59
Section 14.8 Counterparts..................................................................................59
Section 14.9 Governing Laws; Submission to Jurisdiction....................................................59
Section 14.10 Legal Holidays................................................................................60
Section 14.11 Limitation of Liability.......................................................................60
Section 14.12 Entire Agreement..............................................................................60
Section 14.13 Survival......................................................................................61
Section 14.14 All Payments in US Dollars....................................................................61
SCHEDULE I AMORTIZATION OF PRINCIPAL
SCHEDULE II ACCOUNT INFORMATION
SCHEDULE III NOTICE ADDRESSES
EXHIBIT A FORM OF FACE OF SECURITY
EXHIBIT B FORM OF TERMS AND CONDITIONS OF BONDS
EXHIBIT C FORM OF TRANSFER
EXHIBIT D FORM OF TRANSFER RESTRICTION LEGEND
EXHIBIT E FORM OF RULE 144A TRANSFER CERTIFICATE
EXHIBIT F FORM OF RULE 144A EXCHANGE CERTIFICATE
EXHIBIT G FORM OF REGULATION S TRANSFER CERTIFICATE
EXHIBIT H FORM OF RULE 144 TRANSFER CERTIFICATE
EXHIBIT I FORM OF ACCREDITED INVESTOR TRANSFER CERTIFICATE
EXHIBIT J FORM OF REGULATION S EXCHANGE CERTIFICATE
EXHIBIT K FORM OF ACCREDITED INVESTOR EXCHANGE CERTIFICATE
TRUST INDENTURE
This TRUST INDENTURE, dated as of November 1, 1999 (this "Indenture"),
among TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"Partnership"), The Chase Manhattan Bank, a bank organized and duly existing
under the laws of New York, as trustee (in such capacity, together with its
successors in such capacity, the "Trustee"), and The Chase Manhattan Bank, a
bank organized and duly existing under the laws of New York, as depositary bank
(in such capacity, together with its successors in such capacity, the
"Depositary Bank").
W I T N E S S E T H:
WHEREAS, the Partnership proposes to develop, construct and operate a
nominally rated 936 MW natural gas fired simple-cycle electric generating plant
in Heard County, Georgia (the "Project");
WHEREAS, the Partnership has duly authorized the creation of bonds,
debentures, promissory notes or other evidences of indebtedness to be issued in
one or more series (the "Bonds") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture;
and the Partnership has duly authorized the execution and delivery of this
Indenture to secure the Bonds and to provide for the authentication and delivery
thereof by the Trustee;
WHEREAS, the Partnership wishes to secure the payment of the principal
of, premium, if any, and interest on all the Bonds authenticated and delivered
under this Indenture and issued by the Partnership and the performance of the
covenants therein and herein contained and to mortgage, pledge and assign
substantially all of its assets, including the proceeds of the sale of the Bonds
to the Trustee pursuant to this Indenture;
WHEREAS, all obligations of the Partnership under this Indenture shall
be secured as set forth in this Indenture and the other Security Documents; and
WHEREAS, all acts necessary to make this Indenture and the other
Security Documents valid instruments, in accordance with its and their terms,
have been done.
NOW, THEREFORE, in consideration of the premises and of the purchase of
the Bonds by the Holders thereof, and in order to secure the payment of the
principal of and premium, if any, and interest on all the Bonds from time to
time Outstanding and the performance of the covenants therein and herein
contained and to declare the terms and conditions on which such Bonds are
secured, the Partnership has granted certain security interests as provided in
the other Security Documents and hereby grants, bargains, mortgages, sells,
releases, conveys, assigns, transfers, pledges, sets over and confirms to the
Trustee, and grants to the Trustee a security interest in, all right, title and
interest of the Partnership in and to the Indenture Accounts (including any and
all funds contained therein or hereafter delivered to the Trustee for deposit
therein), including, in each case, all funds received and the right to receive
funds thereunder;
TO HAVE AND TO HOLD all the same with all privileges and appurtenances
hereby given, granted, pledged and assigned or agreed or intended so to be, unto
the Trustee, and its successors in such trust and to it and its assigns forever;
IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Bonds;
PROVIDED, HOWEVER, that if the right, title and interest of the Trustee
in and to the Indenture Accounts shall have ceased, terminated and become void
in accordance with Article X hereof, then and in that case, subject to the
provisions of Article X, this Indenture and the estate and rights hereby granted
shall cease, terminate and be void, and the Trustee shall cancel and discharge
this Indenture and execute and deliver to the Partnership such instruments as
the Partnership shall require to evidence the discharge hereof; otherwise this
Indenture shall be and remain in full force and effect; and
THE PARTIES HEREBY COVENANT AND AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS AND CONSTRUCTION;
INDENTURE TO CONSTITUTE CONTRACT; AGENCY
Section 1.1 Defined Terms. (a) For all purposes of this Agreement,
capitalized terms used but not otherwise defined herein shall have the meaning
set forth in Appendix A to the Common Agreement.
(b) The following terms shall have the following respective
meanings:
"Act" when used with respect to any Holder, shall have the meaning
given that term in Section 8.1 (Acts of Holders).
"Accredited Investors" shall have the meaning given to that term in
Section 2.5.4 (Bonds Sold to Institutional Accredited Investors).
"Additional Bonds" shall mean Bonds issued, authenticated and delivered
in accordance with the provisions of Section 2.3 hereof.
"Agent Members" shall have the meaning given to that term in Section
2.5.5(a) (Depositary).
"Applicable Procedures" shall have the meaning given to that term in
Section 2.7.2(a) (Transfers and Exchanges of Global Bonds and Beneficial
Interests Therein).
"Authenticating Agent" shall have the meaning given to that term in
Section 2.6.2 (Authenticating Agent).
"Authorized Agent" shall have the meaning given to that term in Section
2.6.3(a) (Authorized Agents Generally).
2
"Bond Register" shall have the meaning given to that term in Section
2.6.1(a) (Registrar and Paying Agent).
"Certificated Bonds" shall mean a Bond issued in certificated form to a
Person other than the Depositary.
"Covenant Defeasance Option" shall have the meaning given to that term
in Section 10.2(a)(ii) (Defeasance).
"Defeasance Deposit" shall have the meaning given to that term in
Section 10.2(d) (Defeasance).
"Depositary Bank" shall have the meaning given to that term in the
preamble to this Indenture.
"DTC Letter of Representations" shall mean the Letter of
Representations, dated the date hereof, among the Partnership, DTC and the
Trustee.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated November 10, 1999, between the Partnership
and the Initial Purchasers.
"Executive Review Committee" shall mean the executive review committee
of the Partnership.
"Federal Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended from time to time.
"Global Bonds" shall have the meaning given to such term in Section
2.5.3 (Bonds Sold Pursuant to Regulation S).
"Indenture Accounts" shall have the meaning given to that term in
Section 5.1 (Establishment of Indenture Accounts).
"Indenture Collateral" shall have the meaning given to that term in
Section 7.2 (Remedies Upon an Event of Default).
"Initial Bond" or "Initial Bonds" shall mean any of the $275,000,000
Tenaska Georgia Partners, L.P. 9.50% Senior Secured Bonds Due 2030, issued by
the Partnership.
"Involuntary Buy-Out Event" shall mean any Energy Contract Buy-Out
which is provided for in the Purchase Agreement and any Energy Contract Buy-Out
which is certified by the Partnership as not voluntarily sought by the
Partnership, but into which the Partnership is legally or practically required
to enter by force of law or regulation, or by an actual or threatened
condemnation, expropriation or other taking of the Project, or by an actual or
threatened bankruptcy proceeding on the part of the purchaser of the electricity
or capacity under the subject contract or by an actual or threatened termination
of full performance on the part of such purchaser; provided that in the case of
a threatened (a) condemnation, expropriation or other taking, (b) bankruptcy
proceeding or (c) termination of full performance, such threat shall be
3
express and in writing, and the Partnership shall have certified that such
threat has resulted in the Bonds being placed on a negative credit watch or in a
Rating Downgrade by either Rating Agency, or, either Rating Agency shall have
indicated that any such threatened action should result in either the Bonds
being placed on a negative credit watch or a Rating Downgrade.
"Legal Defeasance Option" shall have the meaning given to that term in
Section 10.2(a)(i) (Defeasance).
"Make-Whole Premium" shall mean an amount equal to the Discounted
Present Value calculated for any Initial Bond subject to redemption pursuant to
Article 3 (Redemption of Bonds) less the unpaid principal amount of such Initial
Bond; provided that the Make-Whole Premium shall not be less than zero. For
purposes of this definition, the "Discounted Present Value" of any Initial Bond
subject to redemption pursuant to Article 3 (Redemption of Bonds) shall be equal
to the discounted present value of all principal and interest payments scheduled
to become due in respect of such Initial Bond after the date of such redemption,
calculated using a discount rate equal to the sum of (i) the yield to maturity
on the United States treasury security having an average life equal to the
remaining average life of such Initial Bond and trading in the secondary market
at the price closest to par and (ii) 50 basis points; provided, however, that if
there is no United States treasury security having an average life equal to the
remaining average life of such Initial Bond, such discount rate shall be
calculated using a yield to maturity interpolated or extrapolated on a
straight-line basis (rounding to the nearest month, if necessary) from the
yields to maturity for two (2) United States treasury Bonds having average lives
most closely corresponding to the remaining average life of such Initial Bond
and trading in the secondary market at the price closest to par.
"Majority Holders" shall mean Holders holding greater than fifty
percent (50%) in aggregate principal amount of the Outstanding Bonds.
"Non-Recourse Person" shall have the meaning given to that term in
Section 14.11 (Limitation of Liability).
"One Hundred Percent Holders" shall mean Holders holding one hundred
percent (100%) in aggregate principal amount of the Outstanding Bonds.
"One-Quarter Holders" shall mean Holders holding greater than
twenty-five percent (25%) in aggregate principal amount of the Outstanding
Bonds.
"Paying Agent" shall have the meaning given to that term in Section
2.6.1(b) (Registrar and Paying Agent).
"Proceeding" shall have the meaning given to that term in Section 7.3.4
(Trustee May File Proofs of Claim; Appointment of Trustee as Attorney-in-Fact in
Judicial Proceedings).
"Qualified Institutional Buyer" shall mean a "qualified institutional
buyer" within the meaning of Rule 144A.
"Redemption Date" shall mean any date for redemption of Bonds
established pursuant to Article 3 (Redemption of Bonds).
4
"Redemption Account" shall have the meaning given to that term in
Section 3.3 (Redemption Account).
"Redemption Price" shall mean an amount equal to the sum of (i) the
principal amount of Bonds being redeemed pursuant to Article 3 (Redemption of
Bonds) and (ii) all interest accrued thereon to the Redemption Date.
"Registrar" shall have the meaning given to that term in Section
2.6.1(a) (Registrar and Paying Agent).
"Regular Record Date" shall mean, (i) with respect to each Scheduled
Payment Date except a Scheduled Payment Date in connection with an optional or
mandatory redemption, the fifteenth (15th) day of the month, whether or not a
Business Day, immediately preceding such Scheduled Payment Date, and (ii) with
respect to each Scheduled Payment Date in connection with an optional or
mandatory redemption, the fifteenth (15th) day, whether or not a Business Day,
preceding such Scheduled Payment Date.
"Regulation S Restricted Period" shall mean, with respect to any Bond,
the period of forty (40) consecutive days beginning on and including the first
day after the later of (i) the day on which such Bond is first offered to
Persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the closing date of the offering of such Bond.
"Restricted Global Bond" shall have the meaning given to that term in
Section 2.5.2 (Bonds Sold Pursuant to Rule 144A).
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Special Record Date" shall have the meaning given to that term in
Section 2.4 (Record Dates).
"Supplemental Indenture" shall mean an indenture supplemental to this
Indenture entered into by the Partnership and the Trustee for the purpose of
establishing, in accordance with this Indenture, the title, form and terms of
Additional Bonds.
"Transfer Restriction Legend" shall mean a legend substantially in the
form of Exhibit D.
"Trustee" shall mean The Chase Manhattan Bank, its successors and
assigns, in its capacity as trustee under the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"US Government Obligations" shall mean direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States is pledged and which are
not callable at the issuer's option.
5
All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meaning assigned to them
therein.
Section 1.2 Principles of Construction. For all purposes of this
Agreement, the principles of construction set forth in Section 1.1 (Definitions
and Principles of Construction) of the Common Agreement shall apply.
Section 1.3 Indenture to Constitute Contract. In consideration of the
purchase and acceptance of any or all of the Bonds by those who shall hold the
same from time to time, the provisions of this Indenture shall be part of the
contract of the Partnership with the Holders of the Bonds, and shall be deemed
to be and shall constitute contracts between the Partnership, the Trustee and
the Holders from time to time of the Bonds. The provisions, covenants and
agreements herein set forth to be performed by or on behalf of the Partnership
shall be for the equal and ratable benefit, protection and security of the
Holders of any and all of the Bonds. All of the Bonds, regardless of the time or
times of their issuance or maturity, shall be of equal rank without preference,
priority or distinction of any of the Bonds over any other except as expressly
provided in or pursuant to this Indenture.
Section 1.4 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply in this
Indenture as so modified or to be excluded, as the case may be.
ARTICLE II
THE BONDS
Section 2.1 Authorization, Amount, Terms and Issuance of Bonds. (a)
Bonds may be issued hereunder from time to time. No Bonds may be issued under
this Indenture except in accordance with this Article 2. The maximum principal
amount of Bonds which may be issued hereunder is not limited. The Bonds shall be
issued in denominations of $100,000 or any amount in excess thereof that is an
integral multiple of $1,000.
(b) "CUSIP" or "ISIN" numbers (if then generally in use) may
be printed on the Bonds and, if so, the Trustee shall use CUSIP or ISIN numbers
in notices of redemption as a convenience to Holders. Neither the Partnership
nor the Trustee shall have any responsibility for any defect in the CUSIP or
ISIN number that appears on any bond, check, advice of payment or redemption
notice, and any such document may contain a statement to the effect that CUSIP
or ISIN numbers have been assigned by an independent service for convenience of
reference and that neither the Partnership nor the Trustee shall be liable for
any inaccuracy in such numbers. The Partnership shall promptly notify the
Trustee of any change in CUSIP or ISIN numbers with respect to the Bonds.
Section 2.2 Authorization and Terms of the Initial Bonds. (a) The
Initial Bonds to be issued under this Indenture are hereby created and the
Partnership may issue the Initial Bonds
6
upon execution of this Indenture. The Initial Bonds shall (i) be known and
designated as the "Tenaska Georgia Partners, L.P. 9.50% Senior Secured Bonds
Due 2030", (ii) be substantially in the form set forth in Exhibit A and (iii)
contain substantially the terms and conditions set forth in Exhibit B. The
Trustee shall, at the Partnership's written request, authenticate the Initial
Bonds and deliver them as specified in such request.
(b) The Initial Bonds shall be dated as of the Closing Date, shall be
issued in the aggregate principal amount set forth below and shall have a stated
maturity date and bear interest as set forth below; provided that the interest
rate of the Initial Bonds that are not transferable without restriction under
the Securities Act may be increased pursuant to the terms and provisions of the
Exchange and Registration Rights Agreement. To the extent there is an interest
rate increase pursuant to the immediately preceding sentence, such increased
rate shall cease to accrue according to the terms and provisions of the Exchange
and Registration Rights Agreement. Notice of the occurrence and cessation of any
increased interest rate and the date, if any, that a Registration Statement is
declared effective shall be set forth in an Officer's Certificate of the
Partnership delivered to the Trustee and the Depositary Bank within ten (10)
Business Days after the Partnership has obtained knowledge of such event.
Initial Bonds subsequently issued pursuant to Section 2.7 (Transfer and Exchange
of Bonds) shall be dated as of the date of authentication thereof.
Interest Rate Stated Maturity Date Principal Amount
--------------------- ---------------------------- -------------------------
9.50% February 1, 2030 $275,000,000
(c) Interest on the Initial Bonds shall accrue from the
Closing Date and shall be paid semi-annually in arrears on each February 1 and
August 1, commencing August 1, 2000 and concluding on the final Maturity Date
for the Initial Bonds. Interest on the Initial Bonds shall be computed on the
basis of a three hundred sixty (360) day year consisting of twelve (12) thirty
(30) day months.
(d) Principal of the Initial Bonds shall be paid in an amount,
and on the Scheduled Payment Dates, as set forth on Schedule I hereto.
(e) The principal of, premium (if any) and interest on the
Initial Bonds shall be payable in immediately available funds and in such coin
or currency of the United States which, at the respective dates of payment
thereof, is legal tender for the payment of public and private debts. Payment of
principal of, premium (if any) and interest on any Initial Security shall be
made (i) by check or draft drawn on a bank having an office located in the
United States and mailed on the relevant Scheduled Payment Date to the Person in
whose name such Initial Bond is registered at the close of business on the
Regular Record Date immediately preceding such Scheduled Payment Date, at such
Person's address as it appears on the Bond Register, or (ii) by wire transfer to
an account maintained by such Person in the continental United States if the
Trustee shall have received written notice from such Person requesting such wire
transfer and providing the appropriate wire transfer information at least
fifteen (15) days prior to the relevant Regular Record Date; provided, however,
that if and to the extent there shall be a default in the payment of principal,
premium (if any) or interest due with respect to any Initial Bond on any
Scheduled Payment Date, such defaulted interest and/or principal shall be paid
to the Holder in whose name such Initial Bond is registered at the close of
business on the Special Record Date
7
determined by the Trustee as provided in Section 2.4 (Record Dates). The
Partnership shall pay any administrative costs imposed by banks in connection
with the making of payments by wire transfer.
Section 2.3 Additional Bonds. (a) Additional Bonds may, upon
satisfaction of the conditions set forth in this Section 2.3, be issued in the
amounts and for the purposes permitted herein. All Additional Bonds shall (i)
rank pari passu with the Initial Bonds in all respects (except, with respect to
allocation of funds received in connection with any mandatory redemption under
Section 3.2(a)(iii) (Mandatory Redemption) to the extent the funds received by
the Trustee represent PECO Buy-Out Proceeds, which proceeds shall be applied to
the redemption of the Initial Bonds prior to being applied to the redemption of
any Additional Bonds), (ii) be secured by the Collateral as set forth in the
Security Documents and (iii) be secured by the Indenture Collateral as set forth
herein. All Additional Bonds shall bear such date or dates, bear such interest
rate or rates, have such maturity dates, redemption dates and redemption
premiums, be in such form and be issued at such prices as approved in writing by
the Partnership.
(b) Upon (i) satisfaction of the applicable conditions set
forth in this Section 2.3, (ii) the execution and delivery of an appropriate
Supplemental Indenture in compliance with clause (d) of this Section 2.3, (iii)
the execution and delivery of appropriate supplements, amendments or
modifications to or of the Financing Documents (in respect of which the consent
of the Trustee and the Holders shall not be required; provided, however, if such
supplements, amendments or modifications change the rights or obligations of the
Trustee, as determined by the Trustee in its sole discretion, the prior written
consent of the Trustee shall be required in connection with any such
supplements, amendments or modifications) and (iv) receipt by the Trustee of an
Officer's Certificate from the Partnership confirming that all conditions
precedent to the issuance of Additional Bonds or incurrence of Permitted
Indebtedness, as applicable, set forth in this Agreement and the Common
Agreement have been satisfied or waived, the Partnership shall execute
Additional Bonds and deliver them to the Trustee, and the Trustee, upon the
written request of the Partnership, shall authenticate such Additional Bonds and
deliver them to the purchasers thereof as may be directed by the Partnership in
writing; provided, however, that, notwithstanding anything to the contrary
contained herein, no Additional Bonds shall be issued hereunder without the
written consent of the Partnership.
(c) Upon the issuance of any Additional Bonds, the Partnership
shall promptly provide the Trustee with a revised Schedule I to this Indenture
that will provide for the payment of principal on such Additional Bonds.
(d) Prior to the issuance of Additional Bonds hereunder, the
following shall be established in one or more Supplemental Indentures:
(i) the title of the Additional Bonds (which shall
distinguish the Additional Bonds from all other Bonds) and the form or
forms of such Bonds;
(ii) any limit upon the aggregate principal amount of
the Additional Bonds that may be authenticated and delivered under this
Indenture (except for Additional Bonds authenticated and delivered upon
registration of transfer of, or in
8
exchange for, or in lieu of, other Bonds and except for Additional
Bonds that are deemed never to have been authenticated and delivered
hereunder);
(iii) the date or dates on or as of which the
Additional Bonds shall be dated;
(iv) the date or dates on which the principal of the
Additional Bonds is payable the amounts of principal payable on such
date or dates and the Regular Record Date for the determination of
Holders to whom principal is payable;
(v) the rate or rates at which the Additional Bonds
shall bear interest or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue,
the scheduled payment dates on which such interest shall be payable
(which shall correspond to the Scheduled Payment Dates set forth
herein) and the Regular Record Date for the determination of Holders to
whom interest is payable;
(vi) the place or places where (A) the principal of,
premium (if any), and interest on the Additional Bonds shall be
payable, (B) Additional Bonds may be surrendered for registration of
transfer or exchange and (C) notices and demands to or upon the
Partnership in respect of the Additional Bonds and this Indenture may
be served;
(vii) the price or prices at which, the period or
periods within which and the terms and conditions upon which the
Additional Bonds may be redeemed, in whole or in part, at the option of
the Partnership;
(viii) the obligation (if any) of the Partnership to
redeem, purchase or repay Additional Bonds pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof and the
price or prices at which, the period or periods within which and the
terms and conditions upon which Additional Bonds shall he redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(ix) if other than denominations of $100,000 and any
integral multiple of $1,000 in excess thereof, the denominations in
which Additional Bonds shall be issuable;
(x) the restrictions or limitations (if any) on the
transfer or exchange of the Additional Bonds;
(xi) the obligation (if any) of the Partnership to
file a registration statement with respect to the Additional Bonds or
to exchange the Additional Bonds for Bonds registered pursuant to the
Securities Act;
(xii) any trustees, authenticating agents, paying
agents, warrant agents, transfer agents or registrars with respect to
the Additional Bonds; and
(xiii) any other terms of the Additional Bonds (which
terms shall not contravene the provisions of this Indenture) including
any terms related to the redemption
9
of the Additional Bonds; provided that such terms shall be no more
favorable to the Holders of Additional Bonds than the corresponding
terms contained herein.
Section 2.4 Record Dates. The Person in whose name any Bond is
registered at the close of business on any Regular Record Date with respect to
any Scheduled Payment Date shall be entitled to receive the principal, premium
(if any) and/or interest payable on such Scheduled Payment Date notwithstanding
the cancellation of such Bond upon any transfer or exchange thereof subsequent
to such Regular Record Date and prior to such Scheduled Payment Date; provided,
however, that if and to the extent there is a default in the payment of the
principal, premium (if any) and/or interest due on such Scheduled Payment Date,
such defaulted principal, premium (if any) and/or interest shall be paid to the
Persons in whose names Outstanding Bonds are registered at the close of business
on a subsequent date (each such date, a "Special Record Date"), which shall not
be less than five (5) days preceding the date of payment of such defaulted
principal, premium (if any) and/or interest, established by a notice mailed by
the Trustee to the registered owners of the Bonds in accordance with Section
14.5(b) (Notices) not less than fifteen (15) days prior to the Special Record
Date or, if the Special Record Date is less than fifteen (15) days after die
applicable Scheduled Payment Date, such shorter period.
Section 2.5 Form of Bonds.
2.5.1 Form Generally. The Initial Bonds and the Trustee's
certificate of authentication thereon shall be substantially in the form set
forth in Exhibit A and shall contain substantially the terms and conditions set
forth in Exhibit B, which exhibits are hereby incorporated in and expressly made
a part of this Indenture. The Initial Bonds shall be issued in fully registered
form, without interest coupons. Additional Bonds shall be in the form and shall
contain the terms established in one or more Supplemental Indentures. Any Bond
may have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have imprinted
or otherwise reproduced thereon such legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to comply with
Applicable Law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Bond with the approval of the Trustee,
such determination and approval to be evidenced by the execution and
authentication thereof. The Bonds shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers
executing the Bonds may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof. Certificated Bonds may be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Certificated
Bonds with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
2.5.2 Bonds Sold Pursuant to Rule 144A. The Bonds offered and
sold in their initial distribution in reliance on Rule 144A to Qualified
Institutional Buyers shall be issued in the form of a permanent global bond (the
"Restricted Global Bond") (which may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate), duly executed by
the Partnership and authenticated by the Trustee as hereinafter provided. The
Restricted Global Bond shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, at its
10
principal corporate trust office, as custodian for the Depositary on behalf of
the purchasers of the Bonds represented thereby.
2.5.3 Bonds Sold Pursuant to Regulation S. The Bonds offered
and sold in their initial distribution in reliance on Regulation S shall be
issued in the form of a permanent global bond (the "Regulation S Global Bond"
and, together with the Restricted Global Bond, the "Global Bonds") (which may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate), duly executed by the Partnership and authenticated by the Trustee
as hereinafter provided. The Regulation S Global Bond shall be registered in the
name of the Depositary or its nominee and deposited with the Trustee, at its
corporate trust office, as custodian for the Depositary for credit to the
respective accounts of The Euroclear System ("Euroclear") and Cedel Bank, S.A.
("Cedel"). Prior to the termination of the Regulation S Restricted Period,
beneficial interests in the Regulation S Global Bond may be held only through
Euroclear and Cedel.
2.5.4 Bonds Sold to Institutional Accredited Investors. The
Bonds offered and sold in their initial distribution in reliance on an exemption
from registration under the Securities Act (other than Rule 144A or Regulation
S) to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors") shall be issued in
certificated, fully registered form without coupons and in denominations of
$100,000 and integral multiples of $1,000 in excess thereof (the "Certificated
Bonds"), duly executed by the Partnership and authenticated by the Trustee as
hereinafter provided.
2.5.5 Depository. (a) The Partnership hereby appoints DTC to
act as depositary (in such capacity, together with its successors in such
capacity, the "Depositary") with respect to the Global Bonds. The Trustee shall
act as custodian of the Global Bonds for the Depositary. So long as the
Depositary or its nominee, Cede & Co., is the registered owner of the Global
Bonds, it shall be considered the Holder of the Bonds represented thereby for
all purposes hereunder and under the Global Bonds, and neither any members of,
or participants in the Depositary ("Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights hereunder with respect
to the Global Bonds or under the Global Bonds. Notwithstanding the foregoing,
nothing herein shall prevent the Partnership, the Trustee or any agent of the
Partnership or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or its nominee, as the
case may be, or impair, as between the Depositary, its Agent Members and any
other Person on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a Holder of
any Bond.
(b) The Partnership may remove or replace DTC or any successor
as Depositary for any reason upon thirty (30) days' notice to DTC or such
successor. The Holders shall have no right to a depositary for the Bonds.
(c) Notwithstanding any other provision of this Indenture or
the Bonds, so long as DTC or its nominee is the registered owner of the Bonds:
11
(i) the provisions of the DTC Letter of
Representations shall control over the provisions of this Indenture
with respect to the matters covered thereby;
(ii) presentation of Bonds to the Trustee at redemption
or at maturity shall be deemed made to the Trustee when the right to
exercise ownership rights in the Bonds through DTC or Agent Members is
transferred by DTC on its books; and
(iii) DTC may present notices, approvals, waivers or
other communications required or permitted to be made by Holders under
this Indenture on a fractionalized basis on behalf of some or all of
those Persons entitled to exercise ownership rights in the Bonds
through DTC or Agent Members.
Section 2.6 Maintenance of Offices and Agencies.
2.6.1 Registrar and Paying Agent. (a) The Partnership shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
(the "Registrar") where Bonds may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Partnership in respect of
the Bonds or under this Indenture may be served. The Partnership shall cause a
register for the registration of the Bonds and of their transfer and exchange
(the "Bond Register") to be kept at the office of the Registrar. The Partnership
hereby initially appoints the Trustee at its principal corporate trust office as
Registrar, and the Trustee hereby accepts such appointment.
(b) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, and in such other places of payment, if any, as
shall be specified for the Bonds in a related Supplemental Indenture, an office
or agency (the "Paying Agent") where Bonds may be presented for payment of
principal, premium (if any) and interest. The Partnership hereby initially
appoints the Trustee at its principal corporate trust office as Paying Agent,
and the Trustee hereby accepts such appointment.
(c) Whenever the Partnership shall appoint a Paying Agent
other than the Trustee, it shall cause, prior to such appointment, each such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 2.6.1, that such Paying Agent shall:
(i) hold all sums held by such Paying Agent for the
payment of the principal of, premium (if any) or interest on the Bonds
in trust for the benefit of the Holders or the Trustee,
(ii) give the Trustee within five (5) days thereafter
written notice of any default by the Partnership (or any other obligor
upon the Bonds) in the making of any such payment of principal, premium
(if any) or interest; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
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(d) Notwithstanding any other provision this Indenture, any
payment required to be made to or received or held by the Trustee may, to the
extent authorized by written instructions of the Trustee, be made to or received
or held by any Paying Agent for the account of the Trustee.
(e) The Partnership shall give prompt written notice to the
Trustee of the location, and any change in the location, of the Registrar and
Paying Agent. If at any time the Partnership shall fail to maintain a Registrar
and/or Paying Agent or shall fail to furnish the Trustee with the location
thereof, presentation or surrender of Bonds for registration of transfer or
exchange or for payment may be made or served at the principal corporate trust
office of the Trustee.
2.6.2 Authenticating Agent. At any time when any Bonds remain
Outstanding, the Trustee may appoint an authenticating agent or agents (each an
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Bonds issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.10 (Mutilated, Destroyed, Lost or Stolen Bonds), and Bonds so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder (it
being understood that wherever reference is made in this Indenture to the
authentication and delivery of Bonds by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent).
If an appointment of an Authenticating Agent shall be made pursuant to this
Section 2.6.2, the Bonds may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
This Bond is one of the Bonds referred to in the within-mentioned
Indenture.
Trustee
By:
Authorized Officer
2.6.3 Authorized Agents Generally. (a) Any Registrar, Paying
Agent or Authenticating Agent (each an "Authorized Agent") shall (i) be a
corporation organized and doing business under the laws of the United States, of
any state or territory thereof or of the District of Columbia, (ii) be
authorized under such laws to act as Registrar, Paying Agent or Authenticating
Agent, as the case may be, (iii) be subject to supervision or examination by
federal, state, territorial or District of Columbia authority and (iv) either
(A) have a combined capital and surplus of at least $50,000,000 or (B) have a
combined capital and surplus of at least $10,000,000 and be a wholly-owned
subsidiary of a corporation having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to Applicable Law or to the requirements of said supervising
or examining authority, then for purposes of this Section 2.6.3, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent
13
report of condition so published. If at any tune an Authorized Agent shall cease
to be eligible in accordance with the provisions of this Section 2.6.3, it shall
resign immediately in the manner and with the effect hereinafter specified in
clause (c) of this Section 2.6.3.
(b) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any Authorized
Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate agency or corporate trust business of any Authorized Agent,
shall be the successor of such Authorized Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Section 2.6.3,
without the execution and filing of any instrument or any further act on the
part of any of the parties hereto or such Authorized Agent or successor
corporation.
(c) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee and the Partnership. The
Partnership may, and at the request of the Trustee shall, terminate the agency
of any Authorized Agent by giving written notice of such termination to such
Authorized Agent and to the Trustee. Upon the resignation or termination of any
Authorized Agent or in case at any time any Authorized Agent shall cease to be
eligible to hold its position under this Section 2.6.3 (when, in either case, no
other Authorized Agent performing the functions of such former Authorized Agent
shall have been appointed), the Partnership (or the Trustee in the case of any
Authenticating Agent) shall promptly appoint one or more qualified successor
Authorized Agents approved by the Trustee to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section 2.6.3. The Partnership (or
the Trustee in the case of any Authenticating Agent) shall give written notice
of any such appointment to all Holders in the manner provided in Section 14.5(b)
(Notices).
(d) The Partnership shall pay to each Authorized Agent from
time to time reasonable compensation for its services hereunder.
Section 2.7 Transfer and Exchange of Bonds. Unless and until a Bond is
transferred or exchanged pursuant to an effective registration statement under
the Securities Act, the provisions set forth in this Section 2.7 shall apply to
the transfer and exchange of such Bond.
2.7.1 Transger and Exchange Generally. (a) The Bonds are
transferable only upon the surrender thereof for registration of transfer. When
a Bond is presented to the Registrar with a duly executed instrument of
assignment and transfer substantially in the form of Exhibit C, the Registrar
shall register the transfer as requested if such transfer complies with the
provisions hereof. Prior to the due presentation for registration of transfer of
any Bond, the Person in whose name such Bond is registered shall be treated as
the absolute owner of such Bond for the purpose of receiving payment of
principal of, premium (if any) and interest on such Bond (whether or not such
payment is overdue) and for all other purposes whatsoever, notwithstanding any
notice to the contrary. Registration of transfer of any Bond by the Registrar
shall be deemed to be an acknowledgment of such transfer by the Partnership.
(b) When Bonds are presented to the Registrar with a written
request to exchange such Bonds for Bonds of any authorized denominations and of
a like aggregate
14
principal amount, the Registrar shall make the exchange as requested if such
exchange complies with the provisions of this Section 2.7.1.
(c) Following any request for transfer or exchange of one or
more Bonds made in compliance with clause (a) or (b), as the case may be, of
this Section 2.7.1, the Partnership shall execute, and the Trustee shall
authenticate and deliver, one or more new Bonds of a like principal amount and
in such authorized denominations as may be requested. No service charge shall be
made for any registration of transfer or exchange of Bonds, but the Partnership
may require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges that may be imposed in connection with any transfer or
exchange of Bonds; provided, however, that no such requirement of payment shall
apply to exchanges made pursuant to Section 2.11 (Temporary Bonds) or Section
9.5 (Reference in Bonds to Supplemental Indentures).
(d) Transfers or exchanges of the Global Bonds and beneficial
interests therein shall be subject to the provisions of Section 2.7.2 (Transfers
and Exchanges of the Global Bonds and Beneficial Interests Therein) and the
rules of the Depositary. Transfers or exchanges of Certificated Bonds shall be
subject to the provisions of Section 2.7.3 (Transfers and Exchanges of
Certificated Bonds).
(e) Except as otherwise provided herein, the Global Bonds and
each Certificated Bond shall bear the Transfer Restriction Legend. By its
acceptance of any Bond bearing the Transfer Restriction Legend, whether upon
original issuance or subsequent transfer, each Holder of such a Bond
acknowledges the restrictions on transfer of such Bond set forth in this
Indenture and in the Transfer Restriction Legend and agrees that it will
transfer such Bond only as provided in this Indenture. Upon the specific written
request of a Holder to remove the Transfer Restriction Legend, the Registrar
shall authenticate and deliver a Bond with an equivalent principal amount not
bearing the Transfer Restriction Legend if there is provided to the Partnership
evidence reasonably satisfactory to the Partnership (which may, at the
Partnership's request, include an Opinion of Counsel) that neither the Transfer
Restriction Legend nor the restrictions on transfer set forth therein are
required to ensure compliance with the Securities Act. Upon a written request
for the registration of transfer or exchange of a Bond bearing the Transfer
Restriction Legend pursuant to an effective registration statement under the
Securities Act and in accordance with any applicable securities laws of any
state of the United States, the Registrar shall authenticate and deliver a Bond
with an equivalent principal amount not bearing the Transfer Restriction Legend.
If the Transfer Restriction Legend has been removed from a Bond as provided in
this clause (e), the transfer of such Bond shall not be subject to the
restrictions on transfer set forth in the Transfer Restriction Legend, and no
other Bond issued in exchange for all or any part of such Bond shall bear the
Transfer Restriction Legend unless the Partnership has reasonable cause to
believe that such other Bond is a "restricted security" within the meaning of
Rule 144 and instructs the Registrar in writing to cause the Transfer
Restriction Legend to appear thereon.
(f) All Bonds issued upon any transfer or exchange pursuant to
the terms hereof shall be the valid obligations of the Partnership, evidencing
the same debt, and shall be entitled to the same benefits under this Indenture
as the Bonds surrendered upon such transfer or exchange.
15
2.7.2 Transfers and Exchanges of the Global Bonds and
Beneficial Interests Therein (a) Subject to cluases (b) through (i) of this
Section 2.7.2, transfers of the Global Bonds shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. So long as the Global Bonds remain outstanding and are held by or on
behalf of the Depositary, transfers and exchanges of beneficial interests in the
Global Bonds shall be made in accordance with the provisions of this Section
2.7.2 and in accordance with the rules and procedures of the Depositary to the
extent applicable (the "Applicable Procedures").
(b) No restrictions shall apply with respect to the transfer
or registration of transfer of (i) a beneficial interest in the Restricted
Global Bond to a transferee that takes delivery in the form of a beneficial
interest in the Restricted Global Bond or (ii) a beneficial interest in the
Regulation S Global Bond to a transferee that takes delivery in the form of a
beneficial interest in the Regulation S Global Bond; provided that any transfer
described in this clause (b) shall be made in accordance with the Applicable
Procedures. The Trustee shall not be deemed to have knowledge of such transfers.
(c) Any transfer of a beneficial interest in the Restricted
Global Bond to a transferee that will take delivery in the form of a beneficial
interest in the Regulation S Global Bond prior to the termination of the
Regulation S Restricted Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (c). At any time prior to the
termination of the Regulation S Restricted Period, upon (i) receipt by the
Registrar of (A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a beneficial
interest in the Restricted Global Bond to transfer such beneficial interest to a
Person that will take delivery in the form of a beneficial interest in the
Regulation S Global Bond, (B) a written order of the Depositary or its nominee
given in accordance with the Applicable Procedures containing account and other
information with respect to such transfer and (C) a certificate of the
transferor of the beneficial interest in the Restricted Global Bond
substantially in the form of Exhibit G and (ii) satisfaction of all other
applicable conditions imposed by this Indenture and the Applicable Procedures,
the Registrar shall (1) reflect in the Bond Register a decrease in the principal
amount of the Restricted Global Bond and an increase in the principal amount of
the Regulation S Global Bond, each such adjustment to be equal to the beneficial
interest transferred pursuant to this clause (c) and (2) instruct the Depositary
to make the corresponding adjustment to its records and debit the account of the
appropriate Agent Members in accordance with the Applicable Procedures.
(d) Any transfer of a beneficial interest in the Restricted
Global Bond to a transferee that will take delivery in the form of a beneficial
interest in the Regulation S Global Bond subsequent to the termination of the
Regulation S Restricted Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (d). At any time subsequent to
the termination of the Regulation S Restricted Period, upon (i) receipt by the
Registrar of (A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a beneficial
interest in the Restricted Global Bond to transfer such beneficial interest to a
Person that will take delivery in the form of a beneficial interest in the
Regulation S Global Bond, (B) a written order of the Depositary or its nominee
given in accordance with the Applicable Procedures containing account and other
information with respect to such transfer and (C) a certificate of the
transferor of the beneficial
16
interest in the Restricted Global Bond substantially in the form of Exhibit G
(if transfer is made in reliance on Regulation S) or Exhibit H (if transfer is
made in reliance on Rule 144) and (ii) satisfaction of all other conditions
imposed by the Applicable Procedures, the Registrar shall (1) reflect in the
Bond Register a decrease in the principal amount of the Restricted Global Bond
and an increase in the principal amount of the Regulation S Global Bond, each
such adjustment to equal the principal amount of the beneficial interest
transferred pursuant to this clause (d), and (2) instruct the Depositary to make
the corresponding adjustment to its records and debit and credit the accounts of
the appropriate Agent Members in accordance with the Applicable Procedures.
(e) Any transfer of a beneficial interest in the Regulation S
Global Bond to a transferee that will take delivery in the form of a beneficial
interest in the Restricted Global Bond, either prior or subsequent to the
termination of the Regulation S Restricted Period, shall be registered, subject
to the Applicable Procedures, only in accordance with this clause (e). At any
time upon (i) receipt by the Registrar of (A) instructions given in accordance
with the Applicable Procedures from the Depositary or its nominee on behalf of
an owner of a beneficial interest in the Regulation S Global Bond to transfer
such beneficial interest to a Person that will take delivery in the form of a
beneficial interest in the Restricted Global Bond, (B) a written order of the
Depositary or its nominee given in accordance with the Applicable Procedures
containing account and other information with respect to such transfer and (C) a
certificate of the transferor of the beneficial interest in the Regulation S
Global Bond substantially in the form of Exhibit E and (ii) satisfaction of all
other conditions imposed by and the Applicable Procedures, the Registrar shall
(1) reflect in the Bond Register a decrease in the principal amount of the
Regulation S Global Bond and an increase in the principal amount of the
Restricted Global Bond, each such adjustment to equal the principal amount of
the beneficial interest transferred pursuant to this clause (e), and (2)
instruct the Depositary to make the corresponding adjustment to its records and
debit and credit the accounts of the appropriate Agent Members in accordance
with the Applicable Procedures.
(f) Any transfer of a beneficial interest in the Restricted
Global Bond to a transferee that will take delivery in the form of one or more
Certificated Bonds shall be registered, subject to the Applicable Procedures,
only in accordance with this clause (f). At any time upon (i) receipt by the
Registrar of (A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a beneficial
interest in the Restricted Global Bond to transfer such beneficial interest to a
Person that will take delivery in the form of one or more Certificated Bonds,
(B) a written order of the Depositary or its nominee given in accordance with
the Applicable Procedures containing account and other information with respect
to such transfer and (C) a certificate of such Person substantially in the form
of Exhibit I, and (ii) satisfaction of all other applicable conditions imposed
by this Indenture and the Applicable Procedures, (1) the Registrar shall (x)
reflect in the Bond Register a decrease in the principal amount of the
Restricted Global Bond in an amount equal to the beneficial interest transferred
pursuant to this clause (f) and (y) instruct the Depositary to make the
corresponding adjustment to its records and debit the account of the appropriate
Agent Member in accordance with the Applicable Procedures, and (2) the
Partnership shall execute and the Trustee shall authenticate and deliver to or
on behalf of such Person one or more Certificated Bonds of like tenor and amount
bearing the Transfer Restriction Legend.
17
(g) Any transfer of a beneficial interest in the Regulation S
Global Bond to a transferee that will take delivery in the form of one or more
Certificated Bonds prior to the termination of the Regulation S Restricted
Period shall be registered, subject to the Applicable Procedures, only in
accordance with this clause (g). At any time prior to the termination of the
Regulation S Restricted Period, upon (i) receipt by the Registrar of (A)
instructions given in accordance with the Applicable Procedures from the
Depositary or its nominee on behalf of an owner of a beneficial interest in the
Regulation S Global Bond to transfer such beneficial interest to a Person that
will take delivery in the form of one or more Certificated Bonds, (B) a written
order of the Depositary or its nominee given in accordance with the Applicable
Procedures containing account and other information with respect to such
transfer and (C) a certificate of such Person substantially in the form of
Exhibit I and (ii) satisfaction of all other conditions imposed by the
Applicable Procedures, (1) the Registrar shall (x) reflect in the Bond Register
a decrease in the principal amount of the Regulation S Global Bond in an amount
equal to the beneficial interest transferred pursuant to this clause (g) and (y)
instruct the Depositary to make the corresponding adjustment to its records and
debit the account of the appropriate Agent Member in accordance with the
Applicable Procedures, and (2) the Partnership shall execute and the Trustee
shall authenticate and deliver to or on behalf of such Person one or more
Certificated Bonds of like tenor and amount bearing the Transfer Restriction
Legend.
(h) At such time as all interests in the Restricted Global
Bond have been transferred for Certificated Bonds or interests in the Regulation
S Global Bond or cancelled, the Restricted Global Bond shall be cancelled by the
Trustee.
(i) Notwithstanding any contrary provision contained herein,
Certificated Bonds shall be issued in exchange for the beneficial interests in a
Global Bond if at any time: (i) the Partnership advises the Trustee in writing
that the Depositary is unwilling or unable to continue as depositary for such
Global Bond or is no longer eligible to act as such and in each case a successor
depositary is not appointed by the Partnership within ninety (90) days of
receipt by the Partnership of notice of such inability; (ii) the Partnership, at
its option, elects to terminate the book-entry system through the Depositary
with respect to such Global Bond; or (iii) after the occurrence of an Event of
Default, beneficial owners holding interests representing a majority of the
aggregate principal amount of Bonds represented by such Global Bond advise the
Trustee in writing through the Depositary that the continuation of a book-entry
system through the Depositary is no longer in such beneficial owners' best
interests. Upon the occurrence of any of the events set forth in clauses (i)
through (iii) immediately above, the Trustee, upon receipt of written notice
thereof and a list of all Persons that hold a beneficial interest in such Global
Bond, shall notify, through the appropriate Agent Members at the expense of the
Partnership, all Persons that hold a beneficial interest in such Global Bond of
the issuance of Certificated Bonds. Upon surrender by the Trustee, as custodian
for the Depositary, of such Global Bond and receipt from the Depositary of
instructions for re-registration, the Partnership shall execute and the Trustee,
upon the written instructions of (A) in the case of the events set forth in
clauses (i) and (ii) immediately above, the Partnership, or (B) in the case of
the events set forth in clause (iii) immediately above, beneficial owners
holding interests representing a majority of the aggregate principal amount of
Bonds represented by such Global Bond, authenticate and deliver Certificated
Bonds bearing the Transfer Restriction Legend. Certificated Bonds issued in
exchange for beneficial interests in such Global Bond pursuant to this clause
(i) shall be
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registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from Agent Members or otherwise, shall
instruct the Trustee.
2.7.3 Transfers and Exchanges of Certificated Bonds. (a)
Any transfer of a Certificated Bond bearing the Transfer Restriction Legend
to a transferee that takes delivery in the form of one or more Certificated
Bonds shall be registered only in accordance with this clause (a). Upon (i)
surrender of any Certificated Bond bearing the Transfer Restriction Legend at
the office of the Registrar, together with (A) an executed instrument of
assignment and transfer of such Certificated Bond substantially in the form
of Exhibit C and (B) a certificate of the transferee of such Certificated
Bond substantially in the form of Exhibit I and (ii) satisfaction of all
other applicable conditions imposed by this Indenture, (1) the Trustee shall
register such transfer and (2) the Partnership shall execute and the Trustee
shall authenticate and deliver in the name of the transferee one or more
Certificated Bonds of any authorized denomination in the same aggregate
principal amount and of the same maturity as the transferred Certificated
Bond, each such new Certificated Bond bearing the Transfer Restriction
Legend; provided, however, that Certificated Bonds so delivered shall not be
required to bear the Transfer Restriction Legend if there is provided to the
Partnership evidence reasonably satisfactory to the Partnership (which may,
at the Partnership's request, include an Opinion of Counsel) that neither the
Transfer Restriction Legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the Securities Act.
(b) Any transfer of a Certificated Bond not bearing the
Transfer Restriction Legend to a transferee that takes delivery in the form of
one or more Certificated Bonds shall be registered only in accordance with this
clause (b). Upon (i) surrender of any Certificated Bond not bearing the Transfer
Restriction Legend at the office of the Registrar, together with an executed
instrument of assignment and transfer of such Certificated Bond substantially in
the form of Exhibit C, and (ii) satisfaction of all other applicable conditions
imposed by this Indenture, (A) the Trustee shall register such transfer and (B)
the Partnership shall execute and the Trustee shall authenticate and deliver in
the name of the transferee one or more Certificated Bonds of any authorized
denomination in the same aggregate principal amount and of the same maturity as
the transferred Certificated Bond. Each such new Certificated Bond may at the
request of the transferee, but shall not be required to, bear the Transfer
Restriction Legend.
(c) Any transfer of a Certificated Bond bearing the Transfer
Restriction Legend to a transferee that takes delivery in the form of a
beneficial interest in a Global Bond shall be registered only in accordance with
this clause (c). Upon (i) surrender of any Certificated Bond bearing the
Transfer Restriction Legend at the office of the Registrar, together with (A) an
executed instrument of assignment and transfer of such Certificated Bond
substantially in the form of Exhibit C, (B) written instructions from the
transferor that such Certificated Bond shall be registered in the name of the
Depositary or its nominee and (C) a certificate of the transferor of such
Certificated Bond substantially in the form of Exhibit G (if the transferee will
take delivery in the form of a beneficial interest in the Regulation S Global
Bond) or Exhibit E (if the transferee will take delivery in the form of a
beneficial interest in the Restricted Global Bond), and (ii) satisfaction of all
other applicable conditions imposed by this Indenture and the Applicable
Procedures, the Registrar shall (x) register such transfer and cancel such
Certificated Bond, (y) reflect in the Bond Register an increase in the
appropriate Global Bond in an amount equal to the Certificated Bond transferred
pursuant to this clause (c) and (z) instruct the
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Depositary to make the corresponding adjustment to its records and credit the
account of the appropriate Agent Member in accordance with the Applicable
Procedures.
(d) Any transfer of a Certificated Bond not bearing the
Transfer Restriction Legend to a transferee that takes delivery in the form of a
beneficial interest in a Global Bond shall be registered only in accordance with
this clause (d). Upon (i) surrender of a Certificated Bond not bearing the
Transfer Restriction Legend at the office of the Registrar, together with (A) an
executed instrument of assignment and transfer of such Certificated Bond
substantially in the form of Exhibit C and (B) written instructions from the
transferor that such Certificated Bond shall be registered in the name of the
Depositary or its nominee, and (ii) satisfaction of all other applicable
conditions imposed by this Indenture and the Applicable Procedures, the
Registrar shall (x) register such transfer and cancel such Certificated Bond,
(y) reflect in the Bond Register an increase in the Global Bond in an amount
equal to the Certificated Bond transferred pursuant to this clause (d) and (z)
instruct the Depositary to make the corresponding adjustment to it's records and
credit the account of the appropriate Agent Member in accordance with the
Applicable Procedures.
(e) Any exchange of a Certificated Bond for one or more
Certificated Bonds in different authorized denominations shall be registered
only in accordance with this clause (e). Upon (i) surrender of a Certificated
Bond at the office of the Registrar, together with a written request to exchange
such Certificated Bond for one or more Certificated Bonds in different
authorized denominations, and (ii) satisfaction of all other applicable
conditions imposed by this Indenture, (A) the Registrar shall register such
exchange and (B) the Partnership shall execute and the Trustee shall
authenticate and deliver in the name of the registered owner one or more
Certificated Bonds in any authorized denomination with the same aggregate
principal amount and maturity date.
(f) Any exchange of a Certificated Bond for a beneficial
interest in a Global Bond shall be registered only in accordance with this
clause (f). Upon (i) surrender of a Certificated Bond at the office of the
Registrar, together with (A) a written request to exchange such Certificated
Bond for a beneficial interest in a Global Bond, (B) written instructions from
the registered owner that such Certificated Bond shall be registered in the name
of the Depositary or its nominee and (C) a certificate of the registered owner
of such Certificated Bond substantially in the form of Exhibit G (if the
Certificated Bond is being exchanged for a beneficial interest in the Regulation
S Global Bond) or Exhibit E (if the Certificated Bond is being exchanged for a
beneficial interest in the Restricted Global Bond) and (ii) satisfaction of all
other applicable conditions imposed by this Indenture and the Applicable
Procedures, the Registrar shall (x) register such exchange and cancel such
Certificated Bond, (y) reflect in the Bond Register an increase in the
Restricted Global Bond in an amount equal to the Certificated Bond exchanged
pursuant to this clause (f) and (z) instruct the Depositary to make the
corresponding adjustment to its records and credit the account of the
appropriate Agent Member in accordance with the Applicable Procedures.
Section 2.8 Execution. (a) The Bonds shall be executed by an Authorized
Officer of the Partnership and shall be attested by an Authorized Officer of the
Partnership. Typographical and other minor errors or defects in any signature
executing or purporting to execute the Bonds
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shall not affect the validity or enforceability of any Bond that has been duly
authenticated and delivered by the Trustee.
(b) Any Bond executed pursuant to clause (a) of this Section
2.8 may be issued and shall be authenticated by the Trustee, notwithstanding
that any officer signing such Bond or whose facsimile signature appears thereon
shall have ceased to hold office at the time of issuance or authentication or
shall not have held office at the date of such Bond.
Section 2.9 Authentication and Delivery. A Bond, or any exchange,
transfer or replacement thereof, shall not be valid for any purpose until an
Authorized Officer of the Trustee manually signs the certificate of
authentication on such Bond substantially in the form set forth in Exhibit A.
Subject to the requirements set forth in this Section 2.9, such authentication
shall be conclusive proof that such Bond has been duly authenticated and
delivered under this Indenture and that the Holder thereof is entitled to the
benefit of the trust hereby created. The Trustee shall, in accordance with a
written order of the Partnership signed by two Authorized Officers, authenticate
the Bonds at the initial issuance thereof and deliver them to the purchaser
thereof upon payment to the Trustee of the purchase price therefor. Any Bonds
subsequently issued under this Indenture may, in accordance with a written order
of the Partnership signed by two Authorized Officers, be authenticated by the
Trustee or any Authenticating Agent appointed by the Trustee, and such
authentication shall, for all purposes of this Indenture, be deemed to be the
authentication of and delivery by the Trustee.
Section 2.10 Mutilated, Destroyed, Lost or Stolen Bonds. (a) If any
Bond shall become mutilated, the Partnership shall execute, and the Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination in exchange and substitution for the Bond so mutilated, but only
upon surrender to the Trustee of such mutilated Bond for cancellation, and the
Partnership or the Trustee may require reasonable indemnity therefor. If any
Bond shall be reported lost, stolen or destroyed, evidence as to the ownership
and the loss, theft or destruction thereof shall be submitted to the Trustee. If
such evidence shall be satisfactory to both the Trustee and the Partnership and
indemnity satisfactory to both shall be given, the Partnership shall execute,
and thereupon the Trustee shall authenticate and deliver, a new Bond of like
tenor, maturity and denomination. The cost (including the reasonable and duly
documented fees and expenses of the Partnership and Trustee) of providing any
substitute Bond under the provisions of this Section 2.10 shall be borne by the
Holder for whose benefit such substitute Bond is provided. If any such
mutilated, lost, stolen or destroyed Bond shall have matured or be about to
mature, the Partnership may, with the consent of the Trustee, pay to the Holder
thereof the principal amount of such Bond upon the maturity thereof and
compliance with the aforesaid conditions by such Holder, without the issuance of
a substitute Bond therefor, and likewise pay to the Holder the amount of the
unpaid interest, if any, which would have been paid on a substitute Bond had one
been issued.
(b) Every substitute Bond issued pursuant to this Section 2.10
shall constitute an additional contractual obligation of the Partnership,
whether or not the Bond alleged to have been mutilated, destroyed, lost or
stolen shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionally with any and all other
Bonds duly issued hereunder.
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(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and all other
rights and remedies with respect thereto.
Section 2.11 Temporary Bonds. Pending preparation of definitive Bonds,
the Partnership may issue, and upon a written order of the Partnership signed by
two Authorized Officers the Trustee shall authenticate and deliver, in lieu of
definitive Bonds, one or more temporary printed or typewritten Bonds in the form
recited in this Indenture, in any authorized denomination. If temporary Bonds
are issued, the Partnership shall cause definitive Bonds to be prepared without
unreasonable delay. The Trustee shall, in accordance with a written order of the
Partnership signed by two Authorized Officers, authenticate and deliver
definitive Bonds in exchange for and upon surrender of an equal principal amount
of temporary Bonds, without charge to the Holder of such Bonds. Until so
exchanged, temporary Bonds shall in all respects be entitled to the same rights,
remedies, security and other benefits under this Indenture as definitive Bonds.
Sectin 2.12 Cancellation and Destruction of Surrendered Bonds. All
Bonds surrendered for payment, redemption or registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. The Partnership may at any time deliver to the Trustee
for cancellation any Bonds previously authenticated and delivered hereunder
which the Partnership may have acquired in any manner whatsoever. The Trustee
(and no one else) shall cancel all Bonds surrendered for payment, redemption or
registration of transfer or exchange, and all Bonds surrendered for cancellation
by the Partnership. All canceled Bonds held by the Trustee shall be disposed of
in accordance with the customary procedures of the Trustee in effect from time
to time. No Bonds shall be authenticated in lieu of or in exchange for any Bonds
canceled as provided in this Section 2.12, except as expressly permitted by this
Indenture.
Section 2.13 Officers' Certificates and Opinions of Counsel. (a) Except
as otherwise expressly provided in this Indenture, upon any application or
request by the Partnership to the Trustee that the Trustee take any action under
any provision of this Indenture, the Partnership shall furnish to the Trustee
(i) an Officer's Certificate stating that all conditions precedent (if any)
provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (if any) have been complied with;
provided, however, that, in the case of any particular application or request as
to which the furnishing of documents, certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each Authorized Representative
signing such certificate or opinion has read such covenant or
condition;
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(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
Authorized Representative, such examination or investigation has been
made as is necessary to enable each such individual to express an
informed opinion as to whether such covenant or condition has been
complied with;
(iv) a statement as to whether, in the opinion of each
such Authorized Representative, such condition or covenant has been
complied with; and
(v) in the case of an Officer's Certificate of the
Partnership, a statement that no Default or Event of Default has
occurred and is continuing (unless such Officer's Certificate relates
to a Default or Event of Default).
Section 2.14 Form of Certificates and Opinions Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons may certify or give an opinion as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but shall not be required to, be
consolidated and form one instrument.
(b) Any Officer's Certificate or opinion of an Authorized
Representative of the Partnership may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows or has reason to believe that the certificate or
opinion of or representations by such counsel with respect to the matters upon
which such Officer's Certificate or opinion of such officer is based are
erroneous.
(c) Any certificate of counsel or Opinion of Counsel may be
based, insofar as it relates to factual matters, information with respect to
which is in the possession of the Partnership, upon a certificate or opinion of,
or representations by, an Authorized Representative of the Partnership, unless
such counsel knows or in the exercise of reasonable care should know that the
certificate or opinion of or representations by such Authorized Representative
with respect to the matters upon which such certificate or such Opinion of
Counsel is based are erroneous. Any Opinion of Counsel stated to be based on
another Opinion of Counsel shall be accompanied by such other Opinion of
Counsel.
Section 2.15 Delivery of Certificates to Rating Agencies. The Trustee
shall deliver to the Rating Agencies copies of all certificates and opinions
delivered to the Trustee by the Partnership pursuant to this Indenture; provided
that the Trustee shall have no liability with respect to any information
contained therein or omitted therefrom.
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ARTICLE III
REDEMPTION OF BONDS
Section 3.1 Redemption at the Option of the Partnership or the Holders.
(a) The Bonds shall be redeemed at the option of the Partnership, in whole or in
part, at any time on any Business Day, at a price equal to the Redemption Price
plus the Make-Whole Premium.
(b) The Bonds shall be redeemed, in whole or in part, at any
time on any Business Day, at a price equal to the Redemption Price with monies
from the Distribution Suspense Account received by the Trustee from the
Collateral Agent, provided such receipt is in accordance with Section 3.9(b)
(Partnership Distribution Fund) of the Collateral Agency Agreement.
(c) If the Partnership elects to redeem the Bonds pursuant to
clause (a) of this Section 3.1 or is permitted to do so in accordance with
clause (b) of this Section 3.1, it shall deliver to the Trustee, at least thirty
(30) days prior to the date upon which notice of redemption is required to be
given to the Holders pursuant to Section 3.4 (Notice of Redemption) (unless a
shorter notice period shall be satisfactory to the Trustee), an Officer's
Certificate specifying the Redemption Date upon which such redemption shall
occur and the principal amount of Bonds to be redeemed.
Section 3.2 Mandatory Redemption. (a) (i) The Bonds shall be redeemed,
in whole or in part, at a price equal to the Redemption Price if the Partnership
or the Collateral Agent receives Loss Proceeds in connection with an Event of
Loss or an Event of Eminent Domain that has been determined in accordance with
Section 3.7(c) of the Collateral Agency Agreement to render all or a portion of
the Project incapable of being rebuilt, repaired or restored to permit operation
of the Project or a portion thereof on a commercially feasible basis. All Loss
Proceeds received by the Trustee from the Collateral Agent pursuant to Section
3.7(d) of the Collateral Agency Agreement with respect to such Event of Loss or
Event of Eminent Domain shall be applied by the Trustee to the redemption of the
Bonds in accordance with this Article 3.
(ii) The Bonds shall be redeemed, in whole or in
part, at a price equal to the Redemption Price if Excess Loss Proceeds in
excess of $1,000,000 remain in the Loss Proceeds Account. All Excess Loss
Proceeds received by the Trustee from the Collateral Agent pursuant to Section
3.7(d) of the Collateral Agency Agreement shall be applied by the Trustee to the
redemption of the Bonds in accordance with this Article 3.
(iii) The Initial Bonds shall be redeemed, in whole
or in part, at a price equal to the Redemption Price if an Energy Contract
Buy-Out occurs which is an Involuntary Buy-Out Event. All PECO Buy-Out Proceeds
(as defined in the Collateral Agency Agreement) received by the Trustee from the
Collateral Agent from the Energy Contract Buy-Out Proceeds Sub-account pursuant
to Section 3.7(e) of the Collateral Agency Agreement shall be applied by the
Trustee to the redemption of the Initial Bonds in accordance with this Article
3.
(iv) Except as provided in clause (iii) above, the
Bonds shall be redeemed, in whole or in part, at a price equal to the
Redemption Price if an Energy Contract
24
Buy-Out occurs which is an Involuntary Buy-Out Event. Except as provided in
clause (iii) above, all proceeds of an Energy Contract Buy-Out which is an
Involuntary Buy-Out Event received by the Trustee from the Collateral Agent from
the Energy Contract Buy-Out Proceeds Sub-account pursuant to Section 3.7(e) of
the Collateral Agency Agreement shall be applied by the Trustee to the
redemption of the Bonds in accordance with this Article 3.
(v) The Bonds shall be redeemed, in whole or in part,
at a price equal to the Redemption Price with amounts received by the
Trustee from the Collateral Agent from the EPC Buy-Down Proceeds Sub-account
pursuant to Section 3.7(f) of the Collateral Agency Agreement in connection with
an EPC Buy-Down that has been determined in accordance with Section 3.18 of the
Collateral Agency Agreement to render the Project incapable of being rebuilt,
repaired or restored in order to remedy the circumstances giving rise to the
obligation of the EPC Contractor to pay such EPC Buy-Down. All proceeds of an
EPC Buy-Down received by the Trustee from the Collateral Agent from the EPC
Buy-Down Proceeds Sub-account pursuant to Section 3.7(f) of the Collateral
Agency Agreement in connection with an EPC Buy-Down shall be applied by the
Trustee to the redemption of the Bonds in accordance with this Article 3.
Except as provided in clause (iii) above, the Initial Bonds and any Additional
Bonds shall be redeemed on a pro rata basis in accordance with the aggregate
amount of principal outstanding on such Bonds (except to the extent that the
Supplemental Indenture providing for the issuance of Additional Bonds provides
that such Additional Bonds are to be redeemed on less than a pro rata basis).
(b) If the Partnership is required to redeem the Bonds in
accordance with this Section 3.2, it shall deliver to the Trustee, immediately
upon the occurrence of the event resulting in such obligation to redeem, an
Officer's Certificate specifying the principal amount of Bonds to be redeemed.
Upon receipt of such Officer's Certificate, the Trustee shall determine the
Redemption Date for such redemption, which Redemption Date shall be within
ninety (90) days following its receipt of monies from the Collateral Agent in
respect of the event giving rise to the Bonds being subject to redemption.
Section 3.3 Redemption Account. Upon receipt from the Partnership of an
Officer's Certificate in respect of a redemption of Bonds pursuant to this
Article 3, the Trustee shall establish a non-interest bearing special purpose
trust fund (the "Redemption Account"), which shall at all times be in the
exclusive possession of, and under the exclusive dominion and control of, the
Trustee. At least one Business Day prior to the Redemption Date for any
redemption of Bonds pursuant to this Article 3, the Partnership shall deposit or
cause to be deposited in the Redemption Account an amount (in immediately
available funds) sufficient to redeem on such Redemption Date the Bonds called
for redemption in accordance with this Article 3.
Section 3.4 Notice of Redemption. (a) Notice of redemption shall be
given in the manner provided in Section 14.5(b) (Notices) to the Holders of any
Bonds to be redeemed pursuant to this Article 3 at least thirty (30) days but
not more than sixty (60) days prior to the Redemption Date for such redemption.
All notices of redemption shall state the following:
(i) the Redemption Date;
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(ii) the Redemption Price and any applicable Make-Whole
Premium;
(iii) if less than all Outstanding Bonds are to be
redeemed, the identification of the particular Bonds to be redeemed and
the aggregate principal amount of Bonds to be redeemed;
(iv) in the case of Bonds to be redeemed in part, the
principal amount of such Bonds to be redeemed and a statement to the
effect that after the Redemption Date, upon surrender of such Bonds,
new Bonds in the aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(v) the name and address of the Paying Agent;
(vi) that Bonds called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and any
applicable Make-Whole Premium;
(vii) that on the Redemption Date the Redemption Price
and any applicable Make-Whole Premium will become due and payable upon
each Bond to be redeemed or portion thereof, and that (unless the
Partnership shall default in the payment of the Redemption Price and
such Make-Whole Premium) interest thereon shall cease to accrue on and
after said date;
(viii) a statement to the effect that the availability in
the Redemption Account on the Redemption Date of an amount of
immediately available funds to pay the Redemption Price and any
applicable Make-Whole Premium in full is a condition precedent to the
redemption;
(ix) the record date;
(x) the paragraph of the Bonds pursuant to which the
Bonds are being redeemed; and
(xi) the CUSIP number, if any, relating to the Bonds
being redeemed.
(b) Notice of redemption of Bonds to be redeemed at the
election of the Partnership pursuant to Section 3.1 (Redemption at the Option of
the Partnership) shall be given by the Partnership or, at the Partnership's
written request by the Trustee, by the Trustee in the name and at the expense of
the Partnership. Notice of a mandatory redemption pursuant to Section 3.2
(Mandatory Redemption) shall be given by the Trustee in the name and at the
expense of the Partnership. Any notice of redemption given in accordance with
this Section 3.4 shall be conclusively presumed to have been duly given whether
or not the Holder actually receives such notice. In any case, failure to give
such notice as herein provided or any defect in the notice given to a Holder of
any Bond designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Bonds.
Section 3.5 Bonds Payable on Redemption Date. Upon the giving of notice
pursuant to Section 3.4 (Notice of Redemption) and the satisfaction of the
conditions, if any, set forth in such notice, the Bonds or portions thereof
called for redemption in such notice shall become due
26
and payable on the Redemption Date and at the Redemption Price (plus any
applicable Make-Whole Premium) specified in such notice, and from and after the
Redemption Date (unless the Partnership shall default in the payment of such
Bonds at the Redemption Price plus any applicable Make-Whole Premium) such Bonds
or portions thereof shall cease to bear interest. Upon surrender of any such
Bond for redemption in accordance with such notice, such Bond or portions
thereof shall be paid and redeemed by the Partnership at the Redemption Price
therefor plus any applicable Make-Whole Premium; provided, however, that any
payment of interest on any Bond, the Scheduled Payment Date of which is on or
prior to the Redemption Date shall be payable to the Holder of such Bond
registered as such at the close of business on the relevant Regular Record Date
in accordance with the terms of this Indenture and such Bond.
Section 3.6 Selection of Bonds to be Redeemed. If less than all the
Bonds are to be redeemed pursuant to this Article 3, the Trustee shall, subject
to Section 3.2(a)(iii), redeem the Bonds on a pro rata basis among the
Outstanding Bonds not previously called for redemption in whole. The Trustee
shall notify the Partnership promptly of the Bonds selected for redemption and,
in the case of any Bonds selected for partial redemption, the principal amount
thereof to be redeemed.
Section 3.7 Bonds Redeemed in Part. (a) For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Bonds shall relate, in the case of any Bonds redeemed or to be
redeemed only in part, to the portion of the principal amount of such Bonds that
has been, or is to be, redeemed.
(b) Any Bond that is to be redeemed only in part shall be
surrendered at the place of payment therefor and, upon such surrender, the
Partnership shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Bond (at the expense of the Partnership), a
new Bond, of any authorized denomination requested by such Holder and of like
tenor and in aggregate principal amount equal to and in exchange for the
remaining unpaid principal amount of the surrendered Bond.
(c) Upon any partial redemption of Bonds in accordance with
this Article 3, the scheduled principal amortization of the Bonds as set forth
on Schedule I shall be reduced by an amount equal to the product of (i) the
scheduled principal amortization of the Bonds then in effect and (ii) a
fraction, the numerator of which is equal to the principal amount of the
Outstanding Bonds to be redeemed and the denominator of which is the principal
amount of the Outstanding Bonds immediately prior to such redemption. In
connection with any such partial redemption, the Partnership shall furnish the
Trustee with an Officer's Certificate setting forth the amortization schedule
for the remaining Bonds after giving effect to such redemption. Notwithstanding
any other provision of this Indenture, if any Bond called for redemption shall
not be paid upon surrender thereof for redemption, the principal of such Bond
shall, until paid or provided for, bear interest from the date fixed for
redemption at the interest rate specified in such Bond.
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ARTICLE IV
COVENANTS
Section 4.1 Covenants. The Partnership hereby covenants and agrees that
for so long as any Bonds are outstanding hereunder, the Partnership shall
observe and perform all of the covenants of the Partnership contained in Article
V of the Common Agreement (which covenants are incorporated herein by reference
as if fully set forth herein).
ARTICLE V
ACCOUNTS AND PROJECT REVENUES
Section 5.1 Establishment of Indenture Accounts. The following accounts
(collectively, together with the Redemption Account, the "Indenture Accounts")
are hereby established and created by the Partnership in the name of the
Trustee:
(a) the Bond Payment Account; and
(b) the Construction Interest Account.
The following subaccounts of the Bond Payment Account are hereby
established and created with the Trustee:
(i) the Interest Sub-Account;
(ii) the Principal Sub-Account.
Section 5.2 Payments into Construction Interest Account; Application of
Monies in Construction Interest Account. (a) The Construction Interest Account
shall be funded with monies transferred by the Collateral Agent pursuant to
Section 3.1 of the Collateral Agency Agreement to the Trustee for deposit in the
Construction Interest Account.
(b) The Trustee is hereby authorized and directed to disburse
from the Construction Interest Account the amount required to pay interest on
the Bonds when due (whether on a Scheduled Payment Date or otherwise).
(c) On the Date of Commercial Operation of the Final Units and
upon the Partnership's delivery to the Collateral Agent and the Trustee of the
Commercial Operation Certificate specified in Section 3.2 of the Collateral
Agency Agreement, the Trustee shall transfer all monies remaining in the
Construction Interest Account to the Bond Payment Account for deposit in the
Interest Sub-Account of such Bond Payment Account.
Section 5.3 Payments into Bond Payment Account. The Bond Payment
Account shall be funded (i) on the Date of Commercial Operation of the Final
Units from monies transferred by the Trustee from the Construction Interest
Account pursuant to Section 5.2 of this Indenture, (ii) on the Date of
Commercial Operation of the Final Units, from monies transferred to the Trustee
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from the Construction Fund pursuant to Section 3.2 of the Collateral Agency
Agreement, (iii) following the Date of Commercial Operation of the Final Units,
from monies transferred by the Collateral Agent from the Debt Service Fund
pursuant to Section 3.5 of the Collateral Agency Agreement, and (iv) as and when
required, after taking into account the transfers referred to in (i), (ii) and
(iii) above, from monies transferred by the Collateral Agent from the Debt
Service Reserve Account pursuant to the Collateral Agency Agreement. The Trustee
shall (x) deposit all monies received by it for the payment of interest on the
Bonds into the Interest Sub-Account for disbursement in accordance with Section
5.4 of this Indenture and (y) deposit all monies received by it for the payment
of principal on the Bonds into the Principal Sub-Account for disbursement in
accordance with Section 5.4 of this Indenture.
Section 5.4 Application of Funds in Interest Sub-Account and Principal
Sub-Account. The Trustee is hereby authorized and directed to disburse from (i)
the Interest Sub-Account of the Bond Payment Account, the amount required to pay
interest on the Bonds when due (whether on a Scheduled Payment Date or
otherwise) and (ii) the Principal Sub-Account of the Bond Payment Account, the
amount required to pay principal on the Bonds when due (whether on a Scheduled
Payment Date or otherwise).
Section 5.5 Investment of Monies in the Accounts. (a) Amounts deposited
in the Bond Payment Account (and each subaccount thereof), and the Construction
Interest Account, at the written request and direction of the Partnership, shall
be invested by the Trustee in Permitted Investments. Such investments shall
mature in such amounts and not later than such times as may be necessary to
provide monies when needed to make payments from such monies as provided in this
Indenture. Net interest or gain received from such investments shall remain in
the Construction Interest Account or the Bond Payment Account, as the case may
be, pending application as provided in this Indenture. Absent written
instructions from the Partnership, the Trustee shall invest the amounts held in
the Bond Payment Account (and each Sub-Account thereof), and the Construction
Interest Account in Permitted Investments described in clause (a) of such
definition.
(b) So long as an outstanding balance shall remain in the
Construction Interest Account, the Trustee shall provide the Partnership and the
Independent Engineer with monthly statements showing the amount of all receipts,
the net investment income or gain received and collected, all disbursements and
the amount then available in the Construction Interest Account.
Section 5.6 Monies to be Held in Trust. All monies required to be
deposited with or paid to the Trustee for the account of the Indenture Accounts
under any provision of this Indenture and all investments made therewith, and
all monies of this Indenture and all investments made therewith, and all monies
withdrawn from the Indenture Accounts and held by the Trustee or any Paying
Agent, shall be held in the name of the Trustee subject to the lien and security
interest granted under this Indenture and in the custody of the Depositary Bank
on behalf of the Trustee.
Section 5.7 Dominion and Control. The Partnership hereby transfers,
assigns and sets over all of its right, title and interest in and to all amounts
deposited or held in any Indenture Account under this Indenture and grants the
Trustee (acting on behalf of the Holders of the Bonds) a continuing security
interest in, a continuing lien upon and sole dominion and control over such
Indenture Accounts. The Partnership shall not have the right to withdraw monies
from any Indenture Account hereunder.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties. The Partnership hereby
makes for the benefit of the Trustee all of the representations and warranties
of the Partnership contained in Article IV of the Common Agreement (which
covenants are incorporated herein by reference as if fully set forth herein).
ARTICLE VII
EVENTS OF DEFAULT; REMEDIES
Section 7.1 Events of Default. The term "Event of Default," whenever
used herein, shall mean any of the following events (whatever the reason for
such event and whether it shall be voluntary or involuntary or shall come about
or be affected by operation of law, or be pursuant to or in compliance with any
Applicable Law), and any such event shall continue to be an Event of Default if
and for so long as it shall not have been remedied:
(a) the Partnership shall fail to pay any principal of,
premium (if any) or interest on any Bond when the same becomes due and payable,
whether by scheduled maturity or required prepayment or redemption or by
acceleration or otherwise and such failure continues for (i) more than five (5)
days following the due date for payment in the case of principal or (ii) more
than fifteen (15) days following the due date for payment in the case of
interest or premium; or
(b) an Event of Default under the Common Agreement shall occur
and be continuing.
Section 7.2 Remedies Upon an Event of Default. (a) Subject to the
Collateral Agency Agreement, if one or more Events of Default shall have
occurred and be continuing, then:
(i) in the case of an Event of Default described in
Section 7.1(a) (Events of Default), (A) the One-Quarter Holders may, by
written notice to the Trustee and the Partnership or (B) the Trustee
may, by written notice to the Partnership, notwithstanding the absence
of direction from the One-Quarter Holders if in the good faith exercise
of its discretion the Trustee determines that such action is necessary
to protect the interests of the Holders, declare a principal amount of
Outstanding Bonds, all interest accrued and unpaid thereon, all premium
(if any) and other amounts payable in respect thereof, to be due and
payable, whereupon the same shall become immediately due and payable
without presentment, demand, protest or further notice of any kind, all
of which are hereby waived;
(ii) subject to clause (iii) below, in the case of all other
Events of Default described in Section 7.1 (Events of Default), (A) the
Majority Holders may, by written notice to the Trustee and the
Partnership, or (B) the Trustee may, by written notice to the
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Partnership, notwithstanding the absence of direction from the Majority
Holders, unless the Majority Holders direct the Trustee not to exercise
remedies under this clause (ii), if in the good faith exercise of its
discretion the Trustee determines that such action is necessary to
protect the interests of the Holders, declare the entire principal
amount of the Outstanding Bonds, all interest accrued and unpaid
thereon, all premium (if any) and all other amounts payable in respect
thereof, to be due and payable, whereupon the same shall become
immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived;
(iii) in the case of an Event of Default described in
clause (e) or (f) of Section 6.1 (Events of Default) of the Common
Agreement, the entire principal amount of the Outstanding Bonds, all
interest accrued and unpaid thereon, all premium (if any) and all other
amounts payable in respect thereof shall automatically become due and
payable without presentment, demand, protest or notice of any kind, all
of which are hereby waived.
(b) Subject to the Collateral Agency Agreement, at any time
after the principal of all or a portion of the Bonds shall have become due and
payable upon a declared acceleration as provided in this Section 7.2, and before
any judgment or decree for the payment of the money so due, or any portion
thereof, shall be entered, the Majority Holders, by written notice to the
Trustee and the Partnership, may rescind and annul such declaration and its
consequences if:
(i) there shall have been paid to or deposited with
the Trustee a sum sufficient to pay:
(A) all overdue interest on such Bonds;
(B) the principal of and premium (if any) on the
Bonds that have become due other than by such declaration of
acceleration; and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and
counsel; and
(ii) all Events of Default, other than the nonpayment
of principal of the Bonds that has become due solely by such
acceleration, have been cured or waived as provided in Section 7.5
(Waiver of Past Defaults and Events of Default), provided that no such
rescission shall affect any subsequent Default or Event of Default or
impair any right consequent thereon.
If any Event of Default shall have occurred and be continuing
and an acceleration shall have occurred pursuant to Section 7.2,
subject to the provisions of Sections 7.2, 7.4, 7.12, 11.2, and 11.7,
the Trustee may sell, without recourse, for cash, or credit or for
other property, for immediate or future delivery, and for such price or
prices and on such terms as the Trustee in its discretion may
determine, the collateral securing the Bonds referred to in the
Granting Clause (for the purposes of Article VII, Article IX and
Article XI, the "Indenture Collateral") as an entirety, or in such
portions as the Holders of a
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majority in aggregate principal amount of the Bonds then Outstanding
shall request by an Act of Holders, or, in the absence of such request,
as the Trustee in its discretion shall deem expedient in the interest
of the Holders, at public or private sale.
Section 7.3 Judicial Proceedings Instituted by Trustee.
7.3.1 Collection of Indebtedness; Trustee Entitled to Bring
Suit. Subject to the Collateral Agency Agreement, if an Event of Default shall
have occurred and be continuing, then the Trustee, in its own name and as
trustee of an express trust, subject to Section 5.2 (Remedies Upon Event of
Default), shall be entitled and empowered to institute any suits, actions or
other proceedings at law and in equity or otherwise for the collection of the
sums due and unpaid in respect of the Bonds, and may prosecute such claim or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree and collect the monies adjudged or decreed to be payable in any
manner provided by Applicable Law, whether before or after or during the
pendency of any proceedings for the enforcement of any of the Trustee's rights
or the rights of the Holders under this Indenture, and such power of the Trustee
shall not be affected by any sale hereunder or by the exercise of any other
right, power or remedy for the enforcement of the provisions of this Indenture.
7.3.2 Trustee May Recover Unpaid Debt After Sale of Indenture
Collateral. In the case of a sale of the Collateral and the application of the
proceeds of such sale to the payment of Indebtedness under this Indenture, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any suits, actions or other proceedings at law and in
equity or otherwise to enforce payment of, and to receive all amounts remaining
due and unpaid upon, all or any of the Bonds for the benefit of the Holders
thereof, and upon any other portion of the Bonds remaining unpaid, with interest
at the rates specified in the respective Bonds on the overdue principal thereof,
premium (if any) and interest thereon (to the extent the payment of such
interest is legally enforceable).
7.3.3 Recovery of Judgment Does Not Affect Rights. No recovery
of any judgment or final decree by the Trustee and no levy of any execution
under any such judgment upon any of the Indenture Collateral, or upon any other
property, shall in any manner or to any extent affect any rights, powers or
remedies of the Trustee, or any Liens, rights, powers or remedies of the
Holders, but all such Liens, rights, powers or remedies shall continue
unimpaired as before.
7.3.4 Trustee May File Proofs of Claim; Appointment of Trustee
as Attorney-in-Fact in Judicial Proceedings. (a) The Trustee, in its own name,
as trustee of an express trust or as attorney-in-fact for the Holders, or in any
one or more of such capacities (irrespective of whether the principal of the
Bonds shall then be due and payable is therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand for
the payment of overdue principal, premium (if any) or interest), shall be
entitled and empowered to (i) file such proofs of claim and other papers or
documents and take any other actions authorized under the Trust Indenture Act as
necessary or advisable in order to have the claims of the Trustee and of the
Holders (whether such claims be based upon the provisions of the Bonds or of
this Indenture) allowed in any judicial proceeding (including, without
limitation, any equity, receivership, insolvency, bankruptcy, liquidation,
readjustment or reorganization) relating
32
to the Partnership or any other obligor on the Bonds (within the meaning of the
Trust Indenture Act), the creditors of the Partnership or any such obligor, the
Indenture Collateral or any other property of the Partnership or such obligor
(each such proceeding, for purposes of this Section 7.3.4 a "Proceeding") and
(ii) collect and receive any monies or other property payable or deliverable on
any such claims and distribute the same. Any receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(b) The Trustee is hereby irrevocably appointed (and the
successive respective Holders of the Bonds, by taking and holding the same,
shall be conclusively deemed to have so appointed the Trustee) the true and
lawful attorney-in-fact of the respective Holders, with authority to:
(i) make and file in the names of the Holders (subject
to deduction from any such claims of the amounts of any claims filed by
any of the Holders themselves) any claim, proof of claim or amendment
thereof, debt, proof of debt or amendment thereof, petition or other
document in any Proceeding, and receive payment of any amounts
distributable on account thereof;
(ii) execute any and all papers and documents and do
and perform any and all acts and things for and on behalf of the
Holders as may be necessary or advisable in order to have the
respective claims of the Trustee and the Holders against the
Partnership or any other obligor on the Bonds (within the meaning of
the Trust Indenture Act), the Indenture Collateral or any other
property of the Partnership or such obligor allowed in any Proceeding;
and
(iii) receive payment of or on account of such claims
and debt,
(c) No provision of this Indenture shall be deemed to give the
Trustee any right to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds or the rights of any Holder, to vote in respect of the claim
of any Holder in any Proceeding or to otherwise change or waive in any way the
rights of any Holder in any Proceeding: provided, however, that the Trustee may,
subject to the Collateral Agency Agreement and Applicable Law, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
(d) Any monies collected by the Trustee under this Section
7.3.4, shall be applied as provided in Section 7.9 (Application of Monies
Collected by Trustee).
7.3.5 Trustee Need Not Have Possession of Bonds. All proofs of
claim, rights of action and rights to assert claims under this Indenture or
under any of the Bonds may be enforced by the Trustee without the possession of
the Bonds or the production thereof at any trial or other proceedings instituted
by the Trustee. In any proceedings brought by the Trustee (and
33
any proceedings involving the interpretation of any provision of this Indenture
or the Bonds to which the Trustee shall be a party), the Trustee shall be held
to represent all of the Holders and it shall not be necessary to make any such
Holders parties to such proceedings.
7.3.6 Suit to be Brought for the Ratable Benefit of Holders.
Subject to the other provisions of this Indenture, any suit, action or other
proceeding at law, in equity or otherwise which shall be instituted by the
Trustee under any of the provisions of this Indenture or the Bonds shall be for
the equal, ratable and common benefit of all of the Holders.
7.3.7 Restoration of Rights and Remedies. In case the Trustee
shall have instituted any proceeding to enforce any right, power or remedy under
this Indenture or the Bonds by foreclosure, entry or otherwise and such
proceedings shall have been determined adversely to the Trustee, then and in
every such case the Partnership and the Trustee shall be restored to their
former positions hereunder, and all rights, powers and remedies of the Trustee
and the Holders shall continue as if no such proceeding had been instituted.
Section 7.4 Control by Holders. The Majority Holders shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; provided that (i) such
direction shall not be in conflict with any rule of law or with this
Indenture, (ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction and (iii) subject to
Section 11.1 (Certain Duties and Responsibilities of Trustee), the Trustee
need not follow any such direction if doing so would in its reasonable
discretion either involve it in personal liability or be unduly prejudicial
to Holders not joining in such direction, it being understood that, subject
to Section 11.1 (Certain Duties and Responsibilities of Trustee), the Trustee
shall have no obligation to make any determination with respect to any such
conflict, personal liability or undue prejudice.
Section 7.5 Waiver of Defaults and Events of Default. The Majority
Holders may on behalf of the Holders of all Bonds waive any Default or Event
of Default and its consequences, except that only the One Hundred Percent
Holders may waive a Default or Event of Default in respect of a covenant or
provision hereof that under Section 9.2 (Amendments and Supplements to
Indenture with Consent of Holders) cannot be modified or amended without the
consent of the Holder of each Outstanding Bond affected. Upon any waiver of
any Default pursuant to this Section 7.5, such Default shall cease to exist
and any 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 Default or Event of Default or impair any consequent
right in respect thereof.
Section 7.6 Limitation on Suits by Holders. (a) Subject to the other
provisions of this Article 7, a Holder shall not have the right to institute any
suit, action or proceeding at law or in equity or otherwise for the foreclosure
of the Lien on this Indenture for the appointment of a receiver or for the
enforcement of any other remedy under or upon this Indenture, unless:
(i) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default;
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(ii) Holders representing the percentage of
aggregate principal amount of Outstanding Bonds needed to initiate the
exercise of remedies shall have requested the Trustee in writing to
institute such suit, action or proceeding:
(iii) the Trustee shall have refused or neglected
to institute any such suit, action or proceeding for sixty (60) days
after receipt of such notice by the Trustee; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such sixty (60) day period
by the Majority Holders.
(b) It is understood and intended that one or more of the
Holders shall not have any right in any manner whatsoever hereunder or under the
Bonds to (i) surrender, impair, waive, affect, disturb or prejudice the Lien of
this Indenture on any property subject thereto or the rights of any other
Holders, (ii) obtain or seek to obtain priority or preference over any other
Holders or (iii) enforce any right under this Indenture, except in the manner
herein provided and for the equal ratable and common benefit of all of the
Holders.
Section 7.7 Undertaking to Pay-Court Costs. All parties to this
Indenture, and each Holder by its acceptance of a Bond, shall be deemed to have
agreed that any court may in its discretion require, in any suit for the
enforcement of any right or remedy hereunder, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section 7.7 shall not apply to (a) any suit
instituted by the Trustee, (b) any suit instituted by a Holder or group of
Holders holding in the aggregate more than ten percent (10%) in principal amount
of the Outstanding Bonds or (c) any suit instituted by a Holder pursuant to
Section 7.8 (Unconditional Right to Receive Payment) for the enforcement of the
payment of the principal of, premium (if any) or interest on any Bond on or
after the respective due dates expressed in such Bond.
Section 7.8 Unconditional Right to Receive Payment. Notwithstanding any
other provision of this Indenture (other than Section 7.5(a) (Waiver of Defaults
and Events of Default)), the right of any Holder to receive payment of the
principal of, premium (if any) or interest on any Bond on or after the
respective due dates expressed in such Bond (or, in the case of redemption, on
the Redemption Date fixed for such Bond), or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 7.9 Application of Monies Collected by Trustee. Any money
collected by the Trustee pursuant to this Article 7 in respect of the Bonds,
together with any other monies which may then be held by the Trustee under any
of the provisions of this Indenture as security for the Bonds (other than monies
at the time required to be held for the payment of specific Bonds at their
stated maturities or at a time fixed for the redemption thereof) shall be
applied in the following order from time to time, on the date or dates fixed by
the Trustee and, in the case of a distribution of such monies on account of
principal, premium (if any) or interest, upon
35
presentation of the Outstanding Bonds, and stamping thereon of payment, if only
partially paid, or upon surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee or any predecessor
Trustee under Section 11.7 (Compensation; Reimbursement;
Indemnification);
SECOND: In case the unpaid principal amount of the Outstanding Bonds
shall not have become due, to the payment of any interest in default,
in the order of the maturity of the payments thereof;
THIRD: In case the unpaid principal amount of a portion of the
Outstanding Bonds shall have become due, first to the payment of
accrued interest on all Outstanding Bonds in the order of the maturity
of the payments thereof, and next to the payment of the unpaid
principal and premium, if any, on all Bonds then due;
FOURTH: In case the unpaid principal amount of all the Outstanding
Bonds shall have become due, to the payment of the whole amount then
due and unpaid upon the Outstanding Bonds for principal, premium, if
any, and interest;
FIFTH: In case the unpaid principal amount of all of the Outstanding
Bonds shall have become due, and all of the principal, premium, if any,
interest and other amounts owed in connection with the Outstanding
Bonds shall have been indefeasibly paid in full in cash or cash
equivalents, any surplus then remaining shall be paid to the
Partnership, or to whomsoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct;
provided, however, that all payments in respect of the Bonds to be made pursuant
to priorities "SECOND" through "FOURTH" of this Section 7.9 shall be made
ratably to the Holders of Bonds entitled thereto, without discrimination or
preference, based upon the ratio of (x) the unpaid principal amount of the Bonds
in respect of which such payments are to be made that are held by each such
Holder and (y) the unpaid principal amount of all Outstanding Bonds.
Section 7.10 Waiver of Appraisement, Valuation, Stay and Right to
Marshalling. To the full extent it may lawfully do so, the Partnership, for
itself and for any other Person who may claim through or under it, hereby:
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any appraisal,
valuation, stay, extension or redemption laws, now or hereafter in force in any
jurisdiction which may delay, prevent or otherwise hinder (i) the performance or
enforcement or foreclosure of this Indenture or the Bonds, (ii) the sale of the
Indenture Collateral, (iii) the sale of any of the Indenture Collateral or (iv)
the putting of the purchaser or purchasers thereof into possession of the
Collateral immediately after the sale thereof:
(b) waives the benefit or advantage of any appraisal,
valuation, stay, extension or redemption laws, now or hereafter in force in any
36
(c) consents and agrees that the Indenture Collateral may be
sold by the Trustee, as an entirety or in parts; and
(d) waives and releases all rights to have the Collateral
marshaled upon any foreclosure, sale or other enforcement of this Indenture.
Section 7.11 Remedies Cumulative; Delay or Omission No Waiver. Each and
every right, power and remedy herein specifically given to the Trustee 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, subject to the Collateral Agency
Agreement, from time to time and as often and in such order as may be deemed
expedient by the Trustee, and the exercise or commencement 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, and no
delay or omission by the Trustee in the exercise of any right, power or remedy
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 Partnership or
be an acquiescence therein.
Section 7.12 The Collateral Agency Agreement. (a) Simultaneously with
the execution and delivery of this Indenture, the Trustee shall enter into the
Collateral Agency Agreement acting for itself and on behalf of all Holders of
the Outstanding Bonds and all future Holders of any of the Bonds.
(b) Notwithstanding any other provision of this Indenture, all
rights, powers and remedies available to the Trustee and the Holders, and all
future Holders, with respect to the Collateral shall be subject to the
Collateral Agency Agreement. In the event of any conflict or inconsistency
between the terms and provisions of this Indenture and the terms and provisions
of the Collateral Agency Agreement, the terms and provisions of the Collateral
Agency Agreement shall govern and control.
(c) In the event that the Trustee is called upon by the
Collateral Agent to participate in any intercreditor vote pursuant to the
Collateral Agency Agreement, the Trustee shall duly convene a meeting of any
Holders in accordance with Article 8 (Acts of Holders) to canvass the Holders as
to the vote to be cast. The Trustee shall vote in any intercreditor vote only in
accordance with instructions issued by the Holders at such meeting, and in
accordance with the percentages of Outstanding Bonds required to take action
under this Indenture. In the event of the failure of any Holder to issue voting
instructions to the Trustee prior to the expiration of the decision period in
respect of the subject intercreditor decision, the Trustee shall refrain from
voting on such intercreditor decision with respect to the Bonds held by such
Holder.
ARTICLE VIII
ACTS OF HOLDERS
Section 8.1 Acts of Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders
37
(collectively, an "Act" of such Holders, which term also shall refer to the
instruments or record evidencing or embodying the same), including any Act for
which a specified percentage of the principal amount of the Bonds is required,
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing or, alternatively, may be embodied in and evidenced by the record of
Holders of Bonds voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of this Article 8, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
are delivered to the Trustee and, when specifically required herein, to the
Partnership. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Partnership, if made in the
manner provided in this Section 8.1. Any record of any meeting of Holders shall
be proved in the manner set forth in Section 8.7 (Counting Votes and Recording
Action of Meeting).
(a) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer, and where such execution is by
an officer of a corporation, association or partnership, on behalf of such
corporation, association or partnership, such certificate or affidavit shall
also constitute sufficient proof of such officer's authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(b) The principal amount and serial numbers of Bonds held by
any Person, and the date or dates of holding the same, shall be proved by the
Bond Register and the Trustee shall not be affected by notice to the contrary.
(c) Any Act by the Holder of any Bond (i) shall bind every
future Holder of the same Bond and the Holder of every Bond issued upon the
transfer thereof or the exchange therefor or in lieu thereof, whether or not
notation of such action is made upon such Bond and (ii) shall be valid
notwithstanding that such Act is taken in connection with the transfer of such
Bond to any other Person, including the Partnership or any Affiliate thereof.
(d) Until such time as written instruments shall have been
delivered with respect to the requisite percentage of principal amount of Bonds
for the Act contemplated by such instruments, any such instrument executed and
delivered by or on behalf of a Holder of Bonds may be revoked with respect to
any or all of such Bonds by written notice by such Holder (or its duly appointed
agent) or any subsequent Holder (or its duly appointed agent), proven in the
manner in which such instrument was proven unless such instrument is by its
terms expressly irrevocable. In determining whether the requisite percentage or
a majority in principal amount of Holders of Bonds has joined in any Act of
Holders, (i) the percentage of Holders of Bonds voting and (ii) the mariner in
which such Holders of Bonds have voted shall be as notified to the Trustee by
the Partnership.
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(e) Bonds authenticated and delivered after any Act of Holders
may, and shall if required by the Trustee, bear a notation in form approved by
the Trustee as to any action taken by such Act of Holders. If the Partnership
shall so determine, new Bonds so modified as to conform, in the opinion of the
Trustee and the Partnership, to such action, may be prepared and executed by the
Partnership and authenticated and delivered by the Trustee in exchange for
Outstanding Bonds, each at no cost to the Holders of such Bonds.
(f) The Partnership may by a resolution of its Executive
Review Committee, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to sign any instrument evidencing or
embodying an Act of Holders. Promptly after any record date is set pursuant to
this clause (g), the Partnership, at its own expense, shall cause notice of such
record date to be given to the Trustee in writing and to each Holder of Bonds in
the manner set forth in Section 14.5(b) (Notices). If a record date is fixed,
those Persons who were Holders at such record date (or their duly appointed
agents), and only those Persons, shall be entitled to sign any such instrument
evidencing or embodying an Act of Holders or to revoke any such instrument
previously signed, whether or not such Persons continue to he Holders after such
record date. No such instrument shall be valid or effective if signed more than
ninety (90) days after such record date, and may be revoked as provided in
clause (e) of this Section 8.1.
Section 8.2 Purposes for Which Holders' Meeting Msy Be Called. A
meeting of Holders may be called at any time and from time to time pursuant to
this Article 8 for any of the following purposes;
(a) to give any notice to the Partnership or to the Trustee,
or to give any directions to the Trustee, or to waive or to consent co the
waiving of any default hereunder and its consequences:
(b) to remove the Trustee and appoint a successor Trustee
pursuant to Article 11 (The Trustee);
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Article 11 (Supplemental Indentures);
(d) to canvass the Holders as to the vote to be cast by the
Trustee in any intercreditor vote pursuant to the Collateral Agency Agreement;
or
(e) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the Bonds
under any other provision of this Indenture or under Applicable Law.
Section 8.3 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Bonds for any of the purposes set forth in Section
8.2 (Purposes for Which Holders' Meeting May be Called) to be in the Borough of
Manhattan, The City of New York, as the Trustee shall determine. Notice of every
meeting of Holders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given by
the Trustee, in the manner provided in Section 14.5(b) (Notices), not less than
twenty (20) nor more than one hundred eighty (180) days prior to the date fixed
for the meeting, to the Holders of the Bonds.
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Sectopm 8.4 The Partnership and Holders May Call Meeting. In case the
Partnership, pursuant to an appropriate Partnership action, or the Holders of at
least ten percent (10%) in aggregate principal amount of the Outstanding Bonds
shall have requested the Trustee to call a meeting of Holders of Bonds, by
written request setting forth in general terms the action proposed to be taken
at the meeting, and the Trustee shall not have mailed notice of such meeting
within twenty (20) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Partnership
or the Holders or Bonds in the amount above specified may determine the time and
place in the Borough of Manhattan, The City of New York, for such meeting and
may call such meeting to take any action authorized in Section 8.2 (Purposes for
Which Holders' Meeting May be Called) by giving notice thereof as provided in
Section 14.5(b) (Notices).
Section 8.5 Persons Entitled to Vote at Meeting. To be entitled to vote
at any meeting of Holders, a Person shall be (a) a Holder of one or more Bonds
with respect to which such meeting is being held or (b) a Person appointed by an
instrument in writing as proxy for the Holder or Holders of such Bonds by a
Holder of one or more such Bonds. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Partnership and its counsel.
Section 8.6 Determination of Voting Rights: Conduct and Adjournment of
Meeting.
(a) Notwithstanding any other provision of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders, in regard to proof of the holding of Bonds and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 8.1 (Acts
of Holders) or other proof. Except as otherwise permitted or required by any
such regulations, the holding of Bonds shall be proved in the manner specified
in Section 8.1 (Acts of Holders) and the appointment of any proxy shall be
proved in the manner specified in said Section 8.1 (Acts of Holders) or by
having the signature of the Person executing the proxy witnessed or guaranteed
by any bank, banker, trust company or firm satisfactory to the Trustee.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Partnership or by Holders as provided in Section 8.4 (The Partnership and
Holders May Call Meeting), in which case the Partnership or the Holders calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in principal amount of the Bonds
represented at the meeting and entitled to vote.
(c) Subject to the provisions of Section 6.8 (Bonds Owned by
Certain Persons Deemed Not Outstanding), at any meeting each Holder of a Bond or
a proxy shall be entitled to one vote for each $100,000 principal amount of
Bonds held or represented by it; provided,
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however, that no vote shall be cast or counted at any meeting in respect of any
Bond challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Bonds held by him or Instruments in writing as aforesaid
duly designating him as the Person to vote on behalf of other Holders of Bonds.
Any meeting of Holders duly called pursuant to Section 8.3 (Call of Meetings by
Trustee) or Section 8.4 (The Partnership and Holders May Call Meeting) may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice. At any meeting, the presence of Persons holding or representing
Bonds with respect to which such meeting is being held in an aggregate principal
amount sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; provided,
however, that if less than a quorum shall be present at any meeting, the Persons
holding or representing a majority of the Bonds represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
Section 8.7 Counting Votes and Recording Action of Meeting. The vote
upon any resolution submitted to any meeting of Holders of Bonds shall be by
written ballots on which shall be subscribed the signatures of the Holders of
Bonds or of their representatives by proxy and the serial numbers and principal
amounts of the Bonds held or represented by them. The permanent chairman of the
meeting shall appoint two (2) inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken at such meeting and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 8.3 (Call
of Meetings by Trustee). The record shall show the serial numbers of the Bonds
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Partnership and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
Section 8.8 Bonds Owned by Certain persons Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Bonds have concurred in any request, demand, authorization,
direction, notice, consent, waiver or other act under this Indenture, Bonds
which are owned by the Partnership, the Partners or any of their respective
Affiliates shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Bonds for which the Trustee has received written
notice of such ownership as conclusively evidenced by the Bond Register shall
be so disregarded. The Partnership shall furnish the Trustee, upon its
reasonable request, with an Officer's Certificate listing and identifying all
Bonds, if any, known by the Partnership to be owned or held by or for the
account of any of the above-described Persons, and the Trustee shall be
entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that the Bonds not listed therein are
Outstanding for the purpose of any
41
such determination. Bonds so owned which have been pledged in good faith may
be regarded as Outstanding for the purposes of this Section 8.8 if the
pledgee shall establish to the satisfaction of the Trustee that the pledgee
has the right to vote such Bonds and that the pledgee is not an Affiliate of
the Partnership or any Partner.
Section 8.9 Right of Revocation of Action Taken; Acts of Holders
Binding. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1 (Acts of Holders), of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Bonds specified
in this Indenture in connection with such action, any Holder of a Bond the
serial number of which is shown by the evidence to be included in the Bonds the
Holders of which have consented to such action may, by filing written notice
with the Trustee and upon proof of holding as provided in Section 8.1 (Acts of
Holders), revoke such action so far as concerns such Bond. Except as aforesaid,
any such action taken by the Holder of any Bond shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Bond, and of any
Bond issued in exchange therefor or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Bond or any Bond issued in
exchange therefor or in place thereof. Any action taken by the Holders of the
percentage in aggregate principal amount of the Bonds specified in this
Indenture in connection with such action shall be conclusively binding upon the
Partnership, the Trustee and the Holders of all the Bonds affected by such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Amendments and Supplements to Indenture Without Consent of
Holders. This Indenture may be amended or supplemented by the Partnership and
the Trustee at any time and from time to time without the consent of the Holders
by a Supplemental Indenture authorized by a resolution of the Executive Review
Committee of the Partnership filed with, and in form satisfactory to, the
Trustee, solely for one or more of the following purposes:
(a) to add additional covenants of the Partnership, to
surrender any right or power herein conferred upon the Partnership or to confer
upon the Holders any additional rights, remedies, benefits, powers or
authorities that may lawfully be conferred;
(b) in increase the assets securing the Partnership's
obligations under this Indenture;
(c) to provide for the issuance of Additional Bonds on the
conditions set forth in Section 2.3 (Additional Bonds);
(d) for any purpose not inconsistent with the terms of this
Indenture to cure any ambiguity or to correct or supplement any provision
contained herein or in any Supplemental Indenture which may be defective or
inconsistent with any other provision contained herein or in any Supplemental
Indenture;
42
(e) in connection with, and to reflect, any amendments to the
provisions hereof required by the Rating Agencies in circumstances where
confirmation of the Ratings are required under the Indenture in connection with
the issuance of Additional Bonds or the taking of other actions by the
Partnership; provided, however, that such amendments are not, in the judgment of
the Trustee, to the prejudice of the Trustee or the Holders; or
(f) to provide for the issuance of exchange Bonds as
contemplated by any agreement entered into in connection with the issuance of
Additional Bonds.
Section 9.2 Amendments and Supplements to Indenture With Consent of
Holders. This Indenture may be amended or supplemented by the Partnership and
the Trustee at any time and from time to time, with the consent of the Majority
Holders, for the purpose of adding any mutually agreeable provisions to or
changing in any manner or eliminating any of the provisions of, this Indenture,
except with respect to (a) the principal, premium (if any) or interest payable
upon any Bonds, (b) the dates on which interest on or principal of any Bonds is
paid, (c) the dates of maturity of any Bonds, (d) this Article 9 (Supplemental
Indentures) and (e) the grant of security interests for the benefit of the
Bonds. The matters of this Indenture described in clauses (a) through (e) of the
preceding sentence may be amended or supplemented by the Partnership and the
Trustee at any time and from time to time only with the consent of the One
Hundred Percent Holders. Notice of any such amendment shall be given by the
Partnership to any Rating Agency then maintaining a Rating for the Bonds.
Section 9.3 Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel. The Trustee is authorized to join with the Partnership in
the execution and delivery of any Supplemental Indenture or amendment permitted
by this Article 7 and in so doing shall be fully protected in relying upon an
Opinion of Counsel stating that such Supplemental Indenture or amendment is so
permitted and has been duly authorized by the Partnership and that all things
necessary to make it a valid and binding agreement have been done.
Section 9.4 Effect of Supplemental Indentures. Upon the execution of
any Supplemental Indenture under this Article 9, this Indenture shall be
modified in accordance therewith, and such Supplemental Indenture shall form a
part of this Indenture for all purposes, and every Holder of Bonds therefor or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5 Reference in Bonds to Supplemental Indentures. Bonds
authenticated and delivered after the execution of any Supplemental Indenture
pursuant to this Article 9 may, and shall if required by the Partnership or the
Trustee, bear a notation in form approved by the Partnership and the Trustee as
to any matter provided for in such Supplemental Indenture and, in such case,
suitable notation may he made upon Outstanding Bonds after proper presentation
and demand. If the Partnership or the Trustee shall so determine, new Bonds so
modified as to conform, in the opinion of the Partnership and the Trustee, to
any such Supplemental Indenture may be prepared and executed by the Partnership
and authenticated and delivered by the Trustee in exchange for Outstanding
Bonds, each at the expense of the Partnership.
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ARTICLE X
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 10.1 Satisfacction and Discharge of Indenture. (a) Except as
set forth in Section 10.3 (Survival of Obligations), this Indenture shall cease
to be of further effect and the Trustee, on written demand and at the expense of
the Partnership, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(i) either:
(A) all Bonds theretofore authenticated and delivered
(other than (1) Bonds which have been destroyed, lost or
stolen and which have been replaced or paid as set forth in
Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds) and
(2) Bonds deemed to have been paid in accordance with clause
(B) immediately below) have been delivered to the Trustee for
cancellation; or
(B) (1) all Bonds not theretofore delivered to the
Trustee for cancellation (x) have become due and payable, (y)
shall become due and payable within one year or (z) are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Partnership and (2) the Partnership shall have deposited
or caused to be deposited with the Trustee as trust funds in
trust an amount sufficient to pay when due at maturity or upon
redemption all principal of, premium (if any), interest on and
other amounts in respect of such Bonds not theretofore
delivered to the Trustee for cancellation.
(ii) the Partnership shall have paid or caused to he
paid all other sums due and payable by it hereunder; and
(iii) the Partnership shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that (A) all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with and (B) the satisfaction and discharge of this Indenture pursuant
to this Section 10.1 shall not be deemed to be, and shall not result
in, a taxable event with respect to the Holders for purposes of United
States federal income taxation.
Section 10.2 Defeasance. (a) Subject to clause (d) of this Section
10.2, Section 10.3 (Survival of Obligations) and Section 10.7 (Reinstatement),
the Partnership may at any time terminate:
(i) all of its obligations under the Bonds and this
Indenture (the "Legal Defeasance Option"); or
(ii) (A) its obligations under any provision of
Article 4 (Covenants) hereunder (except with respect to Section
5.1(d) (Maintenance of Existence; Compliance with Applicable Laws)
of the Common Agreement) and (B) the operation of clauses (c)
(except with respect to Section 5.1(d) (Maintenance of Existence,
Compliance with
44
Applicable Laws) of the Common Agreement), (d), (h) and (j) of
Section 6.1 (Events of Default) of the Common Agreement (the
"Covenant Defeasance Option");
provided that the Partnership may exercise the Legal Defeasance Option
notwithstanding the prior exercise of the Covenant Defeasance Option.
(b) If the Partnership elects to exercise the Legal Defeasance
Option and all applicable conditions set forth in clause (d) of this Section
10.2 are satisfied, payment of the Bonds may not be accelerated because of any
Event of Default. If the Partnership elects to exercise the Covenant Defeasance
Option and all applicable conditions set forth in clause (d) of this Section
10.2 are satisfied, payment of the Bonds may not be accelerated because of an
Event of Default specified in clause (c) (except with respect to Section 5.1(d)
(Maintenance of Existence; Compliance with Applicable Laws) of the Common
Agreement), (d), (h) and (j) of Section 6.1 (Events of Default) of the Common
Agreement.
(c) If the Partnership elects to exercise the Legal Defeasance
Option or the Covenant Defeasance Option and all applicable conditions set forth
in clause (d) of this Section 10.2 are satisfied, the Trustee shall, upon
request of the Partnership, acknowledge in writing the discharge of such
obligations that the Partnership terminates pursuant to this Section 10.2.
(d) The Partnership may exercise its Legal Defeasance Option
or its Covenant Defeasance Option only if the following conditions are
satisfied:
(i) the Partnership irrevocably deposits (such
deposit, the "Defeasance Deposit") in trust with the Trustee monies or
US Government Obligations for the payment of principal of, premium (if
any) and interest on the Bonds to the Final Maturity Date thereof or
the Redemption Date therefor, as the case may be;
(ii) the Partnership delivers to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal and
interest when due and without reinvestment of the deposited US
Government Obligations plus any deposited monies without investment
will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium (if any) and interest when due on
all the Bonds to the Final Maturity Date thereof or the Redemption Date
therefor, as the case may be;
(iii) ninety one (91) days pass after the Defeasance
Deposit is made and no Default or Event of Default described in clause
(e) or (f) of Section 6.1 (Events of Default) of the Common Agreement
shall occur during the ninety one (91) day period and be continuing at
the end of such period; provided, however, that the foregoing condition
need not be satisfied if at the time of the Defeasance Deposit the
Partnership delivers to the Trustee an Opinion of Counsel to the effect
that, or a court should hold that, such deposit would not constitute a
preference that could be avoided under Section 547 of the Federal
Bankruptcy Code, notwithstanding that ninety one (91) days have not
passed since the date of the Defeasance Deposit;
(iv) no Default or Event of Default (other than a
Default or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of
45
which will be used to defease the Bonds) shall have occurred and be
continuing on the date of and after giving effect to the Defeasance
Deposit,
(v) the Defeasance Deposit does not constitute a
default under any other agreement binding on the Partnership;
(vi) the Partnership delivers to the Trustee an Opinion
of Counsel to the effect that, or a court should hold that, the trust
resulting from the Defeasance Deposit does not constitute, or is
qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended from time to time;
(vii) in the case of the Legal Defeasance Option, the
Partnership shall have delivered to the Trustee an Opinion of Counsel
to the effect that, or a court should hold that, the Holders will not
recognize income, gain or loss for United States federal income tax
purposes as a result of such defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had
not occurred, which Opinion of Counsel shall be based upon an Internal
Revenue Service ruling or a change in the applicable United States
federal income tax law or United States Treasury regulations since the
Closing Date;
(viii) in the case of the Covenant Defeasance Option, the
Partnership shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders will not recognize income, gain or loss
for United States federal income tax purposes as a result of such
defeasance and will be subject to United States federal income tax
purposes on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred; and
(ix) the Partnership delivers to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Bonds as
contemplated in this Section 10.2 have been complied with;
provided, however, that, notwithstanding the foregoing provisions of this
Section 10.2, the conditions set forth in clauses (ii), (iii), (iv), (v), (vi),
(vii) and (viii) need not be satisfied so long as, at the time the Partnership
makes the Defeasance Deposit, (1) no Default under clause (a) of Section 5.1
(Events of Default) hereof shall have occurred and be continuing on the date of
and after giving effect to the Defeasance Deposit, (2) no Default under clause
(e) or (f) of Section 6.1 (Events of Default) of the Common Agreement shall have
occurred and be continuing on the date of and after giving effect to the
Defeasance Deposit, and (3) either (x) a notice of redemption has been mailed
pursuant to Section 3.4 (Notice of Redemption) providing for redemption of all
the Bonds not more than forty (40) days after such mailing and the provisions of
Article 3 (Redemption of Bonds) with respect to such redemption shall have been
complied with or (y) the Final Maturity Date of the Bonds will occur within
forty (40) days. If the conditions set forth in the foregoing proviso are
satisfied, the Partnership shall be deemed to have exercised the Covenant
Defeasance Option.
46
Section 10.3 Survival of Obligations. Notwithstanding (a) the
satisfaction and discharge of this Indenture pursuant to Section 10.1
(Satisfaction and Discharge of Indenture) or (b) any defeasance pursuant to
Section 10.2 (Defeasance), the obligations of the Partnership and the Trustee
under this Article 10 and under Section 2.5 (Form of Bonds), Section 2.6
(Maintenance of Offices and Agencies), Section 2.7 (Transfer and Exchange of
Bonds), Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds), Article 11
(The Trustee) and Section 12.1 (Names and Addresses of Holders) shall survive.
Section 10.4 Application of Trust Money. (a) The Trustee shall hold in
trust all monies and US Government Obligations deposited with it pursuant to
this Article 10 and shall apply such deposited monies and the monies derived
from such US Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of the principal of, premium (if any) and
interest the Bonds.
(b) The Trustee and the Paying Agent shall deliver or pay to
the Partnership from time to time upon request by the Partnership any monies or
U.S. Government Obligations deposited with it pursuant to this Article 10 which,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof required to effect defeasance pursuant to this
Article 8 with respect to the Outstanding Bonds.
Section 10.5 Unclaimed Monies. Monies deposited with the Trustee
pursuant to this Article 10 which remain unclaimed two years following the date
payment thereof becomes due shall, at the request of the Partnership, if at such
time no Event of Default shall have occurred and be continuing, be paid to the
Partnership, and the Holders of the Bonds for which such deposit was made shall
thereafter be limited to a claim against the Partnership; provided, however,
that the Trustee, prior to making payment to the Partnership pursuant to this
Section 10.5, may, at the expense of the Partnership, cause a notice to be
published once in a newspaper or financial journal of general circulation in the
Borough of Manhattan, The City of New York, stating that the monies remaining
unclaimed will be returned to the Partnership after a specified date.
Section 10.6 Indemnity for US Government Obligations. The Partnership
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed or assessed against US Government Obligations deposited pursuant to this
Article 10 or the principal and interest received with respect to such US
Government Obligations, other than any such tax, fee or other charge that by law
is for the account of the Holders of the Outstanding Bonds.
Section 10.7 Reinstatement. If the Trustee or the Paying Agent is
unable to apply any monies or US Government Obligations in accordance with this
Article 10 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Partnership's obligations under this Indenture and the Bonds shall be revived
and reinstated as though no deposit of monies or US Government Obligations shall
have occurred pursuant to this Article 10 until such time as the Trustee or the
Paying Agent is permitted to apply such monies or US Government Obligations in
accordance with this Article 10; provided, however, that, if the Partnership has
made any payment of principal of, premium or interest on any Bonds following the
reinstatement of its obligations, the Partnership shall be
47
subrogated to the rights of the Holders of such Bonds to receive such payment
from the monies or US Government Obligations held by the Trustee or the Paying
Agent.
ARTICLE XI
THE TRUSTEE
Section 11.1 (a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, provided, however, that, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether they conform to the
requirements of this Indenture.
(b) Subject to the Collateral Agency Agreement, in case an
Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent omissions, or its own willful misconduct, except that:
(i) this clause (c) shall not be construed to limit
the effect of clause (a) of this Section 11.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by one or more Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the Collateral Agency Agreement or the direction of the
Majority Holders relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
and
(iv) no provision or this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
48
reasonable grounds for believing that repayment of such funds or
reasonable indemnity against such risk or liability is not assured to
it.
(d) Whether or not herein or therein expressly so provided,
every provision of this Indenture and the other Financing Documents to which it
is a party relating to the conduct or affecting the liability of or affording
protection to the Trustee (and its officers, directors, employees, agents,
successors and assigns) shall be subject to the provisions of this Section 11.1
and, notwithstanding anything to the contrary, the Collateral Agency Agreement.
(e) The Trustee shall not be responsible for insuring the
Project or for collecting any insurance monies and shall have no responsibility
for the financial, physical or other condition of the Project.
Section 11.2 Certain Rights of Trustee. (a) The Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, notice, other evidence of Indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Partnership shall be
sufficiently evidenced by a written instrument signed by an Authorized Officer
of the Partnership and any resolution of the Board of Directors of the
Partnership shall be sufficiently evidenced by a copy thereof certified by the
secretary of such Board of Directors;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting to take any action hereunder, the Trustee (unless
other evidence is herein specifically prescribed to be relied upon) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel selected by it and
the advice or opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity (reasonably acceptable
to such Trustee) against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, notice, other evidence of Indebtedness or other paper or document;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed in good faith by it
hereunder;
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(h) the Trustee shall be under no obligation to take any
action pursuant to any request or direction, if it shall receive conflicting
requests or directions from any party so authorized; provided that the Trustee
inform such parties as to the existence of conflicting requests or directions;
(i) the Trustee shall be under no obligation to take any
action which is discretionary with the Trustee under this Indenture or any other
Financing Document; and
(j) the Trustee shall have no responsibility with respect to
the recording, re-recording, filing or re-filing under the laws of any
jurisdiction of this Indenture or any other Security Document, or any document
or statement that may be recorded, re-recorded, filed or re-filed under any such
laws to perfect or protect the security interests created by or pursuant to this
Indenture, any other Security Document or any other document or to the payment
of fees, charges, or taxes in connection therewith or to give any notice
thereof.
Section 11.3 Notice of Default. (a) If payment on any Bond is not made
when it becomes due and payable, the Trustee shall promptly notify the
Partnership that it has failed to make such payment. Within thirty (30) days
after the occurrence of an Event of Default of which the Trustee has actual
knowledge, the Trustee shall give to all Holders, in the manner provided for in
Section 14.5(b) (Notices), notice of such Event of Default, unless such Event of
Default shall have been cured or waived; provided, however, that, except in the
case of an Event of Default in respect of payment of the principal of, premium,
if any, or interest on any Bond, the Trustee shall be protected in withholding
such notice if the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
(b) Except as otherwise expressly provided herein, the Trustee
shall not be bound to ascertain or inquire as to the performance or observance
of any of the terms, conditions, covenants or agreements herein, or of any other
documents executed in connection with the Bonds, or as to the existence of an
event of default thereunder, and shall not be deemed to have notice of an Event
of Default unless and until a Responsible Officer of the Trustee shall have (i)
been notified in writing in accordance with the terms hereof or (ii) shall have
received notice thereof from the Collateral Agent pursuant to Section 6.2
(Rights of the Collateral Agent) of the Collateral Agency Agreement. The
occurrence of either clause (i) or clause (ii) shall constitute for purposes of
this Indenture "actual knowledge" on behalf of the Trustee.
(c) The Trustee shall give to all Holders any notices received
by it pursuant to the Collateral Agency Agreement (other than those specifically
for the Trustee only and those which the Trustee determines should not, in the
interests of the Holders, be given to the Holders).
Section 11.4 Not Responsible for Recitals or Issuance of Bonds. The
recitals, representations, warranties, and other statements contained herein, in
the other Financing Documents, and in the Bonds, except the Trustee's
certificate of authentication, shall be taken as the statements of the
Partnership, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or any of the other Financing Documents or of the Bonds. The Trustee
shall not be accountable for the use or application by the Partnership of the
Bonds or the proceeds of the issuance and sale thereof.
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Section 11.5 May Hold Bonds. The Trustee or any other agent of the
Partnership, in its individual or any other capacity, may become the owner or
pledgee of Bonds and may deal with the Partnership with the same rights it would
have if it were not Trustee or such other agent.
Section 11.6 Monies Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by Applicable Law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Partnership.
Section 11.7 Compensation; Reimbursement; Indemnification. (a) The
Partnership hereby agrees:ent; Indemnification.
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder or in connection
with the Financing Documents (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of
an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or in connection with
the Financing Documents (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its gross
negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
(b) All indemnifications and releases from liability granted
hereunder to the Trustee shall extend to its officers, directors, employees,
agents, successors and assigns.
(c) The rights of the Trustee and the obligations of the
Partnership under this SECTION 11.7 shall survive the resignation or removal of
the Trustee, the payment of the Bonds and the satisfaction, discharge or
termination of this Indenture.
Section 11.8 Eligibility. There shall at all times be a Trustee
hereunder which shall (a) be a corporation organized and doing business under
the laws of the United States, of any state or territory thereof or of the
District of Columbia, (b) be authorized under such laws to exercise corporate
trust powers, (c) be subject to supervision or examination by federal, state,
territorial or District of Columbia authority, (d) have a combined capital and
surplus of at least $50,000,000 and (e) have a corporate trust office in the
Borough of Manhattan, The City of New York, to the extent there is such an
institution eligible and willing to serve. If such corporation publishes reports
of condition at least annually, pursuant to Applicable Law or to the
requirements of said supervising or examining authority, then for purposes of
this Section 11.8, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the
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Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.8, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article 11. None of the Partnership, any other
obligor upon the Bonds or any Affiliate of any of the foregoing shall serve as
Trustee hereunder.
Section 11.9 Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article 11 shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 11.10 (Acceptance of Appointment by Successor Trustee).
(b) The Trustee may resign at any time by giving written
notice thereof to the Partnership. If the instrument of acceptance by a
successor Trustee required by Section 11.10 (Acceptance of Appointment by
Successor Trustee) shall not have been delivered to the Trustee within thirty
(30) days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Majority Holders delivered to the Trustee and the Partnership.
(d) If at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible under
Section 11.8 (Eligibility) and shall fail to resign after written
request therefor by the Partnership or by any Holder of a Bond; or
(ii) the Trustee shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Partnership by a resolution of its Executive
Review Committee may remove the Trustee, or (B) any Holder who has been a bona
fide Holder of a Bond for at least six (6) months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of action, or if a vacancy shall occur in the office of Trustee for
any reason, the Partnership, by a resolution of its Executive Review
Committee, shall promptly appoint a successor Trustee and shall comply with
the applicable requirements of Section 11.10 (Acceptance of Appointment by
Successor Trustee). If, within thirty (30) days after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee is appointed by Act of the Majority Holders delivered to the
Partnership and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with
the applicable requirements of Section 11.10 (Acceptance of Appointment by
Successor Trustee), become the successor Trustee with respect to the Bonds
and to that extent supersede the successor Trustee appointed by the
Partnership. If no successor Trustee shall have been so appointed by the
52
Partnership or the Holders and have accepted appointment in the manner required
by Section 11.10 (Acceptance of Appointment by Successor Trustee), any Holder
who has been a bona fide Holder of a Bond for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Partnership shall, at its own expense, give notice of
each resignation and each, removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided in Section 14.5(b)
(Notices). Each notice required to be given pursuant to this Section 11.9(f)
shall include the name of the successor Trustee and the address of its principal
corporate trust office.
Section 11.10 Acceptance of Appointment by Successor Trustee. (a) In
case of the appointment hereunder of a successor Trustee, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Partnership
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; provided that, on the request of the Partnership or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of the Collateral Agent, the Collateral Agent
or the Partnership, any successor Trustee shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts under the other Financing Documents to which
the Trustee is a party.
(c) Upon request of any successor Trustee, the Partnership
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in clause (a) of this Section 11.10.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article 11.
Section 11.11 Merger Conversion or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article 11,
without the execution and filing of any instrument or any further act on the
part of any of the parties hereto. In case any Bonds shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Bonds so authenticated with the same effect
as if such successor Trustee had itself authenticated such Bonds.
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Section 11.12 Authorization. The Trustee is hereby authorized to
execute, deliver and perform on behalf of the Holders, the Collateral Agency
Agreement and each of the other Financing Documents to which the Trustee is or
is intended to be a party, and each Holder agrees to be bound by all of the
agreements of the Trustee contained therein.
Section 11.13 Consequential Damages. Anything in this Indenture to the
contrary notwithstanding, in no event shall the Trustee be liable under or in
connection with this Indenture for indirect, special, incidental or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Trustee
and regardless of the form of action.
ARTICLE XII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 12.1 Names and Addresses of Holders. (a) If the Trustee is at
any time not the Registrar, the Partnership shall furnish or cause to be
furnished to the Trustee:
(i) Semi-Annually, not more than fifteen (15) days
after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
such Regular Record Date; and
(ii) at such other times as the Trustee may request in
writing, within thirty (30) days after the receipt by the Partnership
of any such request, a list of similar form and content as of a date
not more than fifteen (15) days prior to the time such list is
furnished.
(b) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in clause (a) of this Section
12.1 and the names and addresses of Holders received by the Trustee in its
capacity as Registrar. The Trustee may destroy any list furnished to it as
provided in clause (a) of this Section 12.1 upon receipt of a new list so
furnished.
ARTICLE XIII
THE DEPOSITARY BANK
Section 13.1 Procedures Governing Indenture Accounts. (a) The
Depositary Bank hereby agrees to act as such and to accept all cash, payments,
other amounts (including any instruments in respect thereof) and Permitted
Investments to be delivered to or held by the Depositary Bank pursuant to the
terms of this Indenture, and to promptly deposit all such amounts and Permitted
Investments into the Indenture Accounts established hereunder in accordance with
the terms hereof. The Depositary Bank shall hold and safeguard the Indenture
Accounts during the term of this Indenture and shall treat the cash, payments,
other amounts and Permitted Investments, and all rights related thereto, now or
hereafter deposited in or credited to the Indenture Accounts as "financial
assets" (as defined in Section 8-102(a)(9) of the UCC),
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pledged by the Partnership to the Trustee for the benefit of the Holders, to be
held by the Depositary Bank, acting as a "securities intermediary" (as defined
in the UCC).
(b) The Indenture Accounts and sub-accounts established
pursuant to Section 5.1 (Establishment of Indenture Accounts) shall be in the
name of the Trustee, for the benefit of the Holders, for purposes of granting
the Trustee, on behalf of the Holders, a security interest therein in accordance
with this Indenture. The Trustee shall be the entitlement holder with respect to
such of the Indenture Collateral consisting of securities entitlements for
purposes of the UCC. All amounts and Permitted Investments from time to time
held in each Indenture Account shall be (a) registered in the name of the
Trustee, for the benefit of the Holders, (b) held in the custody of the
Depositary Bank for the purposes and on the terms set forth in this Indenture
and (c) endorsed to the Trustee or credited to another account maintained in the
name of Trustee. All such amounts shall constitute a part of the Indenture
Collateral and shall not constitute payment of any Indebtedness or any other
obligation of the Partnership until applied as hereinafter provided.
(c) Each of the Indenture Accounts shall at all times be in
the exclusive possession of, and under the exclusive dominion and control of,
the Depositary Bank acting at the written direction of the Trustee. The
Partnership agrees that its rights to monies held in the Indenture Accounts are
subject to and controlled by the terms of this Indenture. In no case will any
amounts or Permitted Investments deposited in or credited to any Indenture
Account be registered in the name of the Partnership, payable to the order of
the Partnership or specially endorsed to the Partnership except to the extent
the foregoing have been specially endorsed to the Trustee or in blank.
(d) The Depositary Bank hereby agrees that it will comply with
"entitlement orders" (within the meaning of Section 8-102(a)(8) of the UCC,
including, without limitation, any notification to the Depositary Bank directing
transfer of redemption of any securities or other financial assets in any
Indenture Account) issued by the Trustee and relating to any Indenture Account
without the requirement of further consent by the Partnership or any other
Person. The Depositary Bank hereby represents that it has not entered into, and,
hereby agrees that until the termination of this Indenture, it will not enter
into, any agreement with any other Person (other than the Partnership) relating
to the Indenture Accounts (or the amounts and Permitted Investments deposited
therein or credited thereto) pursuant to which it has agreed to comply with
entitlement orders made by such Person. The Depositary Bank hereby represents
that it has not entered into any other agreement with the Partnership or the
Trustee purporting to limit or condition the obligation of the Depositary Bank
to comply with entitlement orders as set forth in this Section 13.1(d). The
Trustee agrees that it shall not issue entitlement orders in any circumstances
which are not permitted by this Indenture.
Section 13.2 Appointment of Depositary Bank; Powers and Immunities. (a)
The Depositary Bank may execute any of its duties under this Indenture by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining hereto.
(b) The Trustee on behalf of the Holders under this Indenture
hereby appoints the Depositary Bank to act as depositary bank and "securities
intermediary" hereunder with such
55
powers as are expressly delegated to the Depositary Bank by the terms of this
Indenture. The Depositary Bank shall not have any duties or responsibilities
except those expressly set forth in this Indenture. Without limiting the
generality of the foregoing, the Depositary Bank shall take all actions as the
Trustee shall direct it to perform in accordance with the express provisions of
this Indenture or as the Trustee may otherwise direct it to perform in
accordance with the provisions of this Indenture. Notwithstanding anything to
the contrary contained herein, the Depositary Bank shall not be required to take
any action which is contrary to this Indenture or applicable law. Neither the
Depositary Bank nor any of its Affiliates shall be responsible to any Holder for
any recitals, statements, representations or warranties made by the Partnership
contained in this Indenture or in any certificate or other document referred to
or provided for in, or received by any Holder under, the Indenture for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Indenture or any other document referred to or provided for herein or
therein or for any failure by the Partnership to perform its obligations
hereunder or thereunder. The Depositary Bank shall not be required to ascertain
or inquire as to the performance by the Partnership of any of its or their
obligations under this Indenture or any other document or agreement contemplated
hereby or thereby. The Depositary Bank shall not be (a) required to initiate or
conduct any litigation or collection proceeding hereunder or under any other
Security Document or (b) responsible for any action taken or omitted to be taken
by it hereunder (except for its own gross negligence or willful misconduct) or
in connection with any other Security Document. Except as otherwise provided
under this Indenture, the Depositary Bank shall take action under this Indenture
only as it shall be directed in writing by the Trustee. Whenever in the
administration of this Indenture the Depositary Bank shall deem it necessary or
desirable that a factual matter be proved or established in connection with the
Depositary Bank taking, suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof is herein specifically
prescribed) may be deemed to be conclusively proved or established by a
certificate of any Authorized Officer of the Partnership, or the Trustee, if
appropriate. The Depositary Bank shall have the right at any time to seek
instructions concerning the administration of this Indenture from the Trustee or
any court of competent jurisdiction. The Depositary Bank shall have no
obligation to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder.
Section 13.3 Reliance by Depositary Bank. The Depositary Bank shall be
entitled to rely upon and shall not be bound to make any investigation into the
facts or matters stated in any Officer's Certificate of the Partnership, the
Trustee's or any other notice or other document (including any cable, telegram,
telecopy or telex) believed by it to be genuine and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice or statement of
legal counsel, independent accountants and other experts selected by the
Depositary Bank and shall have no liability for its actions taken thereupon,
unless due to the Depositary Bank's willful misconduct or gross negligence.
Without limiting the foregoing, the Depositary Bank shall be required to make
payments to the Holders only as set forth herein. The Depositary Bank shall be
fully justified in failing or refusing to take any action under this Indenture
(i) if such action would, in the reasonable opinion of the Depositary Bank, be
contrary to Applicable Law or the terms of this Indenture, (ii) if such action
is not specifically provided for in this Indenture, it shall not have received
any such advice or concurrence of the Trustee as it deems appropriate or (iii)
if, in connection with the taking of any such action that would constitute an
exercise of remedies under this Indenture (whether such action is or is intended
to be an action of the Depositary Bank or the Trustee), it shall not first be
indemnified to its satisfaction by the Holders against any and
56
all liability and expense which may be incurred by reason of taking or
continuing to take any such action. The Depositary Bank shall in all cases be
fully protected in action, or in refraining from acting, under this Indenture in
accordance with a request of the Trustee, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Holders.
Section 13.4 Court Orders. The Depositary Bank is hereby authorized, in
its exclusive discretion, to obey and comply with all writs, orders, judgments
or decrees issued by any court or administrative agency affecting any money,
documents or things held by the Depositary Bank. The Depositary Bank shall not
be liable to any of the parties hereto or any other Holder, their successors,
heirs or personal representatives by reason of the Depositary Bank's compliance
with such writs, orders, judgments or decrees notwithstanding that such writ,
order, judgment or decree is later reversed, modified, set aside or vacated.
Section 13.5 Resignation of Removal. Subject to the appointment and
acceptance of a successor Depositary Bank as provided below, the Depositary Bank
may resign at any time by giving thirty (30) days prior written notice thereof
to the Trustee and the Partnership, provided that in the event the Depositary
Bank is also the Trustee, it must also at the same time resign as Trustee. The
Depositary Bank may be removed at any time with cause by the Trustee. Except
during the continuation of a default or event of default under this Indenture,
the Partnership shall have the right to remove the Depositary Bank upon thirty
(30) days prior written notice to the Holders with or without cause, effective
upon the appointment of a successor Depositary Bank under this Section 13.5,
which is reasonably acceptable to the Trustee. In the event that the Depositary
Bank shall decline to take any action without first receiving adequate indemnity
from the Partnership, the Holders or the Trustee, as the case may be and, having
received an indemnity, shall continue to decline to take such action, the
Trustee shall be deemed to have sufficient cause to remove the Depositary Bank.
In the event that the Depositary Bank is also the Trustee, the Trustee shall
have the right to remove the Depositary Bank with or without cause. Upon any
such resignation or removal, the Trustee shall have the right to appoint a
successor Depositary Bank, which Depositary Bank (except during the continuation
of a default or event of default under this Indenture) shall be reasonably
acceptable to the Partnership. If no successor Depositary Bank shall have been
appointed by the Trustee and shall have accepted such appointment within thirty
(30) days after the retiring Depositary Bank's giving of notice of resignation
or removal of the retiring Depositary Bank, then (i) the retiring Depositary
Bank may petition a court of competent jurisdiction for the appointment of a
successor Depositary Bank or (ii) the retiring Depositary Bank may appoint a
successor Depositary Bank, which shall be a bank or trust company reasonably
acceptable to the Trustee and the Partnership. Upon the acceptance of any
appointment as Depositary Bank hereunder by the successor Depositary Bank, (a)
such successor Depositary Bank shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Depositary Bank
and shall be discharged from its duties and obligations hereunder and (b) the
retiring Depositary Bank shall promptly transfer all Indenture Accounts within
its possession or control to the possession or control of the successor
Depositary Bank and shall execute and deliver such notices, instructions and
assignments as may be necessary or desirable to transfer the rights of the
Depositary Bank with respect to the Indenture Accounts to the successor
Depositary Bank. After the retiring Depositary Bank's resignation or removal
hereunder as Depositary Bank, the provisions of this Article 7 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Depositary Bank.
57
Section 13.6 Expenses; Indeminification; Fees. (a) The Partnership
agrees to pay or reimburse all reasonable out-of-pocket expenses of the
Depositary Bank (including reasonable fees and expenses for legal services) in
respect of, or incident to, the execution, administration or enforcement of any
of the provisions of this Indenture or in connection with any amendment, waiver
or consent relating to this Indenture. The obligations contained in this Section
13.6 shall survive the termination of this Indenture or the resignation or
removal of the Depositary Bank.
(b) The Partnership agrees to indemnify the Depositary Bank in
its capacity as such, and, in their capacity as such, its officers, directors,
shareholders, controlling persons, employees, agents and servants (each an
"Indemnified Depositary Bank Party") from and against any and all claims,
losses, liabilities and expenses (including the reasonable fees and expenses of
counsel) arising out of or resulting from this Indenture (including, without
limitation, performance under or enforcement of this Indenture, but excluding
any such claims, losses or liabilities resulting from the Indemnified Depositary
Bank Party's gross negligence or willful misconduct). This indemnity shall
survive the termination of this Indenture, and the resignation or removal of the
Depositary Bank.
(c) On the Closing Date, and on each anniversary of the
Closing Date to and including the Debt Termination Date, the Partnership shall
pay the Depositary Bank an annual fee in an amount mutually agreed on by the
Partnership and the Depositary Bank.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Third Party Beneficiaries. Except as provided in Section
14.6 (Successors and Assigns), nothing in this Indenture or in the Bonds,
express or implied, shall give or be construed to give any Person, other than
the parties hereto and the Holders of the Bonds, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 14.2 Severability. In case any provision in or obligation under
this Indenture or the Bonds shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any
jurisdiction, shall not in any way be affected or impaired thereby.
Section 14.3 Substitute Notice. If for any reason it shall be
impossible to make publication of any notice required hereby in a newspaper or
financial journal of general circulation in the Borough of Manhattan, The City
of New York, then such publication or other notice in lieu thereof as shall be
made with the approval of the Trustee shall constitute a giving of such notice.
Section 14.4 Notices to Rating Agencies. Upon the occurrence of any
Event of Default of which a Responsible Officer of the Trustee has actual
knowledge hereunder, the Trustee shall promptly given notice thereof to each of
the Rating Agencies.
Section 14.5 Notices. (a) Except as otherwise expressly provided
herein, (i) all notices and other communications provided for hereunder shall be
provided in writing (including
58
telegraphic, telex, facsimile or cable communication) and shall be sent by
telecopy, telex, telegraph or cable with the original of such communication
dispatched by registered airmail (or, if inland, registered first-class mail)
with postage prepaid to the Partnership, the Trustee, the Collateral Agent and
the Rating Agencies at their respective addresses specified on Schedule III
hereto, or at such other address as shall be designated by such Person in a
written notice to the other parties hereto and (ii) all such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, cabled or
sent by overnight courier, be effective seven (7) days after being deposited in
the mails in the manner as aforesaid, when delivered to the telegraph company or
cable company (if inland), one (1) day or (if overseas) three (3) days after
delivery to a courier in the manner as aforesaid, as the case may be, or when
sent by telex (with the correct answer back) or telecopier (after confirmation
of receipt).
(b) Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder, at its address as it appears in the Bond Register, not later than
the latest date (if any) and not earlier than the earliest date (if any)
prescribed for the giving of such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders, and
any notice that is mailed in the matter herein provided shall be conclusively
presumed to have been duly given.
Section 14.6 Successors and Assigns. All of the covenants, promises and
agreements in this Indenture by or on behalf of the Partnership or the Trustee
shall bind and inure to the benefit of their respective successors and assigns,
regardless of whether so expressed.
Section 14.7 Section Headings. Captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Indenture.
Section 14.8 Counterparts. This Indenture may be executed in any number
of counterparts, all of which, taken together, shall constitute one and the same
instrument and any of the parties hereto may execute this Indenture by signing
any such counterpart.
Section 14.9 Governing Laws; Submission to Jurisdiction. (a) This
Indenture is a contract made under the laws of the State of New York of the
United States and shall for all purposes be governed by and construed in
accordance with the laws of such State without regard to the conflict of law
rules thereof (other than Section 5-1401 of the New York General Obligations
Law).
(b) Any legal action or proceeding against the Partnership
with respect to this Indenture may be brought in the courts of the State of New
York in the County of New York or of the United States for the Southern District
of New York and, by execution and delivery of this
59
Indenture, the Partnership here by irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Partnership agrees that a judgment, after exhaustion of
all available appeals, in any such action or proceeding shall be conclusive and
binding upon the Partnership, and may be enforced in any other jurisdiction, by
a suit upon such judgment, a certified copy of which shall be conclusive
evidence of the judgment. The Partnership irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Partnership, at its address referred to in Section 14.5(a)
(Notices), such service to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right of the Trustee or any other Person to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Partnership in any other
jurisdiction.
(c) The Partnership hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Indenture in the courts referred to in clause (b) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 14.10 Legal Holidays. If any date for the payment of principal
of, premium (if any) or interest on the Bonds is not a Business Day, such
payment shall be due on the first Business Day thereafter.
Section 14.11 Limitation of Liability. (a) The obligations of the
Partnership hereunder are solely the obligations of the Partnership and no
recourse shall be had against any Partner, employee, officer, director,
Affiliate, agent or servant of the Partnership (each a "Non-Recourse Person")
with respect to the Bonds or this Indenture, any of the obligations of the
Partnership hereunder or any obligation of the Partnership for the payment of
any amount payable hereunder for any claim based on, arising out of or relating
to the Bonds or this Indenture; provided, however, that nothing in this Section
14.11 shall be deemed to affect or diminish (a) the obligations of any such
Non-Recourse Person under any Transaction Document to which it is party, (b) the
rights and remedies of the Trustee and the Holders against any such Non-Recourse
Person under any Transaction Document to which any such Non-Recourse Person is a
party or (c) the rights and remedies of the Trustee and the Holders with respect
to the Collateral.
(b) Anything in this Indenture to the contrary
notwithstanding, in no event shall the Trustee (or its officers, directors,
employees, agents, successors and assigns) be liable under or in connection with
this Indenture for any special, indirect or consequential loss or damage of any
kind whatsoever, including lost profits, whether or not the likelihood of such
loss or damage was known to the Trustee and regardless of the form of action.
Section 14.12 Entire Agreement. This Indenture, together with any other
agreements executed in connection herewith, is intended by the parties hereto as
a final expression of their agreement as to the matters covered hereby and is
intended as a complete and exclusive statement of the terms and conditions
hereof.
60
Section 14.13 Survival. The representations and warranties of the
Partnership contained herein shall survive the execution and delivery of this
Indenture.
Section 14.14 All Payments in US Dollars. All payments under this
Indenture or the Bonds shall be made exclusively in United States dollars.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first above written.
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc.
Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President of Finance &
Treasurer
THE CHASE MANHATTAN BANK
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
61
SCHEDULE I
AMORTIZATION OF PRINCIPAL
SCHEDULED PAYMENT DATE PAYMENT SCHEDULED PAYMENT DATE PAYMENT
February 1, 2006 $ 344,000 February 1, 2018 $ 5,844,000
August 1, 2006 344,000 August 1, 2018 5,844,000
February 1, 2007 344,000 February 1, 2019 6,532,000
August 1, 2007 344,000 August 1, 2019 6,532,000
February 1, 2008 688,000 February 1, 2020 6,875,000
August 1, 2008 688,000 August 1, 2020 6,875,000
February 1, 2009 1,032,000 February 1, 2021 7,219,000
August 1, 2009 1,032,000 August 1, 2021 7,219,000
February 1, 2010 1,375,000 February 1, 2022 7,563,000
August 1, 2010 1,375,000 August 1, 2022 7,563,000
February 1, 2011 1,719,000 February 1, 2023 8,250,000
August 1, 2011 1,719,000 August 1, 2023 8,250,000
February 1, 2012 2,407,000 February 1, 2024 8,594,000
August 1, 2012 2,407,000 August 1, 2024 8,594,000
February 1, 2013 3,094,000 February 1, 2025 8,938,000
August 1, 2013 3,094,000 August 1, 2025 8,938,000
February 1, 2014 3,438,000 February 1, 2026 9,282,000
August 1, 2014 3,438,000 August 1, 2026 9,282,000
February 1, 2015 4,125,000 February 1, 2027 9,969,000
August 1, 2015 4,125,000 August 1, 2027 9,969,000
February 1, 2016 4,469,000 February 1, 2028 11,688,000
August 1, 2016 4,469,000 August 1, 2028 11,688,000
February 1, 2017 5,157,000 February 1, 2029 12,375,000
August 1, 2017 5,157,000 August 1, 2029 12,375,000
February 1, 2030 12,358,000
============
Total: $275,000,000
Schedule I-1
Schedule II
ACCOUNT INFORMATION
ACCOUNT NAME ACCOUNT NO.
Bond Payment Account C29522
Principal Sub-account C26522-B
Interest Sub-account C29522-A
Construction Interest Account C29523
Redemption Account C29521
Schedule II-1
SCHEDULE III
NOTICE ADDRESSES
The Chase Manhattan Bank
Capital Markets Fiduciary Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
International & Project Finance Service Delivery
Tenaska Georgia Partners, L.P.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Legal Counsel
Schedule III-1
EXHIBIT A
FORM OF FACE OF SECURITY
THIS SECURITY IS A RESTRICTED GLOBAL BOND WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE
FOR BONDS HELD BY A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY
BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS RESTRICTED GLOBAL BOND IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE PARTNERSHIP OR ITS AGENT FOR EXCHANGE OR PAYMENT,
AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN
WRITING BY DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, DTC, HAS AN
INTEREST HEREIN.
THE BONDS EVIDENCED BY THIS GLOBAL BOND HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, AND SUCH BONDS OR ANY INTEREST OR PARTICIPATION THEREIN
MAY NOT BE RE-OFFERED, SOLD, PLEDGED, ASSIGNED, TRANSFERRED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS BOND (OR ANY PREDECESSOR OF SUCH
BOND) EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
Exhibit A-1
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (13) BY SUBSEQUENT
INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
Exhibit A-2
TENASKA GEORGIA PARTNERS, L.P.
____% Senior Secured Bonds Due ____
CUSIP Number: _______________
Principal Amount: $_____________
Maturity Date: ______________
Issue Date: ______________
Interest Rate: ______________
Registered Holder: ______________
TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership (the
"Partnership", which term includes any successor or assign under the Indenture
referred to below), for value received hereby promises to pay to ____________,
or its registered assigns, on each Scheduled Payment Date, the principal sum
corresponding to such Scheduled Payment Date set forth on the Schedule I of the
Indenture multiplied by a fraction the numerator of which is the Outstanding
amount of the Principal Amount set forth above and the denominator of which is
the Outstanding amount of all Bonds issued under the Indenture, or on such
earlier date as the entire principal hereof may become due in accordance with
the provisions hereof, and to pay interest in arrears on February 1 and August
1, commencing _____________, on said principal sum at the rate of ____% per
annum. Interest shall accrue from and including the most recent date to which
interest has been paid or duly provided for, from _____________ until payment of
said principal sum has been made or duly provided for. The interest payable on
any such Scheduled Payment Date will, subject to certain conditions set forth
herein, be paid to the person in whose name this Bond is registered at the end
of the fifteenth day next preceding each Scheduled Payment Date. Such payments
shall be made exclusively in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Bond and by acceptance hereof the holder of this Bond
agrees to be subject to and bound by the terms and provisions set forth in such
legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE BONDS ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Bond
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
Exhibit A-3
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated: _________________
TENASKA GEORGIA PARTNERS, L.P.
By: Tenaska Georgia, Inc., its
Managing General Partner
By:
------------------------------
Name:
Title:
This is one of the Bonds described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Officer
Exhibit A-4
EXHIBIT B
FORM OF TERMS AND CONDITIONS OF BONDS
Principal Amount: $_______________
Interest Rate: _____%
Payment Dates: February 1 and August 1
(commencing ______________)
Minimum Denominations: US$100,000 and integral multiples of
$1,000 in excess thereof.
Other Terms:
1. General. This Bond is one of a duty authorized issue of debt Bonds
(the "Bonds") of Tenaska Georgia Partners, L.P. (the "Partnership") issued
pursuant to an Indenture (the "Indenture") dated as of November 1, 1999, between
the Partnership and The Chase Manhattan Bank, as Trustee. All capitalized terms
used but not otherwise defined herein shall have the meanings given to such
terms in the Indenture. The holders of the Bonds will be entitled to the
benefits of, be bound by, and be deemed to have notice of, all of the provisions
of the Indenture. A copy of the Indenture is on file and may be inspected at the
corporate trust office of the Trustee in The City of New York, at the offices of
the paying agents listed at the foot of this Bond and at the principal office of
the Partnership set forth in Section 18 (Indentures) hereto.
2. Payments and Paying Agencies. (a) All payments on this Bond shall be
made exclusively in immediately available funds and in such coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
(b) The Person in whose name any Bond is registered at the
close of business on any Regular Record Date with respect to any Scheduled
Payment Date shall be entitled to receive the principal, premium (if any) and/or
interest payable on such Scheduled Payment Date notwithstanding the cancellation
of such Bond upon any transfer or exchange thereof, subsequent to such Regular
Record Date and prior to such Scheduled Payment Date; provided however, that if
and to the extent there is a default in the payment of the principal, premium
(if any) and/or interest due on such Scheduled Payment Date, such defaulted
principal, premium if any) and/or interest shall be paid to the Persons in whose
names Outstanding Bonds are registered at the close of business on a subsequent
date (each such date, a "Special Record Date"), which shall not be less than
five (5) days preceding the date of payment of such defaulted principal,
premium, if any) and/or interest, established by a notice mailed by the Trustee
to the registered owners of the Bonds in accordance with Section 14.5(b)
(Notices) of the Indenture not less than fifteen (15) days prior to the Special
Record Date.
Exhibit B-1
(c) If any date for the payment of principal of, premium (if
any) or interest on the Bonds is not a Business Day, such payment shall be due
on the first Business Day thereafter. Any payment made on such next succeeding
business day shall have the same force and effect as if made on the date on
which such payment is due, and no interest shall accrue for the period after
such date.
(d) Interest shall be calculated on the basis of a 360-day
year of twelve 30-day months.
3. Amendments and Supplements to Indenture. (a) Without Consent of
Holders. The Indenture may be amended or supplemented by the Partnership and
the Trustee at any time and from time to time, without the consent of the
Holders by a Supplemental Indenture authorized by a resolution of the
Executive Review Committee of the Partnership filed with, and in form
satisfactory to, the Trustee, solely for one or more of the following purposes:
(i) to add additional covenants of the Partnership, to
surrender any right or power herein conferred upon the Partnership or
to confer upon the Holders any additional rights, remedies, benefits,
powers or authorities that may lawfully be conferred;
(ii) to increase the assets securing the Partnership's
obligations under the Indenture;
(iii) to provide for the issuance of Additional Bonds
on the conditions set forth in Section 2.3 (Additional Bonds) of the
Indenture;
(iv) for any purpose not inconsistent with the terms of
the Indenture to cure any ambiguity or to correct or supplement any
provision contained herein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained herein
or in any Supplemental Indenture;
(v) in connection with, and to reflect, any amendments
to the provisions hereof required by the Rating Agencies in
circumstances where confirmation of the Ratings are required under the
Indenture in connection with the issuance of Additional Bonds or the
taking of other actions by the Partnership; provided, however, that
such amendments are not, in the judgment of the Trustee, to the
prejudice of the Trustee or the Holders; or
(vi) to provide for the issuance of exchange Bonds as
contemplated by any agreement entered into in connection with the
issuance of Additional Bonds.
(b) With Consent of Holders. The Indenture may be amended or
supplemented by the Partnership and the Trustee at any time and from time to
time, with the consent of the Majority Holders, for the purpose of adding any
mutually agreeable provisions to or changing in any manner or eliminating any of
the provisions of, the Indenture, except with respect to (a) the principal,
premium (if any) or interest payable upon any Bonds, (b) the dates on which
interest on or principal of any Bonds is paid, (c) the dates of maturity of any
Bonds, (d) Article 9 (Supplemental Indentures) of the Indenture and (e) the
grant of security interests for the benefit
Exhibit B-2
of the Bonds. The matters of the Indenture described in clauses (a) through (e)
of the preceding sentence may be amended or supplemented by the Partnership and
the Trustee at any time and from time to time only with the consent of the One
Hundred Percent Holders. Notice of any such amendment shall be given by the
Partnership to any Rating Agency then maintaining a Rating for the Bonds.
4. Replacement, Exchange and Transfer of Bonds. (a) If any Bond shall
become mutilated, the Partnership shall execute, and the Trustee shall
authenticate and deliver, a new Bond of like tenor, maturity and denomination in
exchange and substitution for the Bond so mutilated, but only upon surrender to
the Trustee of such mutilated Bond for cancellation, and the Partnership or the
Trustee may require reasonable indemnity therefor. If any Bond shall be reported
lost, stolen or destroyed evidence as to the ownership and the loss, theft or
destruction thereof shall be submitted to the Trustee. It such evidence shall be
satisfactory to both the Trustee and the Partnership and indemnity satisfactory
to both shall be given, the Partnership shall execute, and thereupon the Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination. The cost of providing any substitute Bond under the provisions of
Section 2.10 (Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall
be borne by the Holder for whose benefit such substitute Bond is provided. If
any such mutilated, lost, stolen or destroyed Bond shall have matured or be
about to mature, the Partnership may, with the consent of the Trustee, pay to
the Holder thereof the principal amount of such Bond upon the maturity thereof
and compliance with the aforesaid conditions by such Holder, without the
issuance (of a substitute Bond therefor, and likewise pay to the Holder the
amount of the unpaid interest, if any, which would have been paid on a
substitute Bond had one been issued.
(b) Every substitute Bond issued pursuant to Section 2.10
(Mutilated, Destroyed, Lost or Stolen Bonds) of the Indenture shall constitute
an additional contractual obligation of the Partnership, whether or not the Bond
alleged to have been mutilated, destroyed, lost or stolen shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionally with any and all other Bonds duly issued
hereunder.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and all other
rights and remedies with respect thereto
5. Trustee. For a description of the duties and the immunities and
rights of the Trustee under the Indenture, reference is made to the Indenture,
and the obligations of the Trustee to the holder hereof are subject to such
immunities and rights.
6. Paying Agents; Transfer Agents; Registrars. The Partnership has
initially appointed the Trustee as paving agent, transfer agents and registrar.
The Partnership may, subject to the terms of the Indenture, at any time appoint
additional or other paving agents, transfer agents and registrars and terminate
the appointment thereof, provided, that while the Bonds are Outstanding the
Partnership will maintain offices or agencies for payment of principal of and
interest on this Bond as herein provided in the Borough of Manhattan, The City
of New York. Notice of any such termination or appointment and of any change in
the office through
Exhibit B-3
which any paying agent, transfer agent or registrar will act will be promptly
given in the manner described in Section 8 (Notices) hereof.
7. Enforcement. (a) Subject to the provisions of Article 7 (Events of
Default; Remedies) of the Indenture, a Holder shall not have the right to
Institute any suit, action or proceeding at law or in equity or otherwise for
the appointment of a receiver or for the enforcement of any other remedy under
or upon this Indenture, unless:
(i) such Holder shall have previously given written
notice to the Trustee a continuing Event of Default;
(ii) Holders representing the percentage of aggregate
principal amount of Outstanding Bonds needed to initiate the exercise
of remedies shall have requested the Trustee in writing to institute
such suit, action or proceeding;
(iii) the Trustee shall have refused or neglected to
institute any such suit, action or proceeding for sixty (60) days after
receipt of such notice by the Trustee; and
(iv) no direction inconsistent with such written
request has been given to the Trustee during such sixty (60) day period
by the Majority Holders.
(b) It is understood and intended that one or more of the Holders shall
not have any right in any manner whatsoever hereunder or under the Bonds to (i)
surrender, impair, waive, affect, disturb or prejudice the Lien of the Indenture
on any property subject thereto or the rights of any other Holders, (ii) obtain
or seek to obtain priority or preference over any other Holders or (iii) enforce
any right under the Indenture, except in the manner provided herein or in the
Indenture and for the equal, ratable and common benefit of all or the Holders.
8. Notices. Notices shall be mailed to Holders at their registered
addresses. Notice sent by first class mail, postage prepaid, shall be deemed to
have been given on the date of such mailing. In addition, the Partnership will
cause all such other publications of such notices as may be required from time
to time by Applicable Law.
9. Redemption at the Option of the Partnership. The Bonds are, under
certain conditions, subject to redemption at the option of the Partnership as
set forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
10. Redemption at the Option of the Holders. The Bonds are, under
certain conditions, subject to redemption at the option of the Holders as set
forth in Section 3.1 (Redemption at the Option of the Partnership or the
Holders) of the Indenture.
11. Mandatory Redemption. The Bonds are subject to mandatory redemption
under certain circumstances as set forth in Section 3.2 (Mandatory Redemption)
of the Indenture.
12. Authentication. This Bond shall not be valid for any purpose until
an Authorized Representative of the Trustee manually signs the certificate of
authentication hereon substantially in the form set forth in Exhibit A to the
Indenture.
Exhibit B-4
13. Governing Law. This Bond is a contract made under the laws of the
State of New York of the United States and shall for all purposes be governed by
and construed in accordance with the laws of such State without regard to the
conflict of law rules thereof (other than Section 5-1401 of the New York General
Obligations Law).
14. Warranty by Issuer. Subject to Section 12 (Authentication) hereof,
the Partnership hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of this Bond, and to constitute the same a legal, valid
and binding obligation of the Partnership enforceable in accordance with its
terms, have been done and performed and have happened in due and strict
compliance with all Applicable Laws.
15. Trustee Dealings with the Partnership. Subject to certain
limitations imposed by the Act, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Bonds and
may otherwise deal with and collect obligations owed to it by the Partnership or
its Affiliates and may otherwise deal with the Partnership or its Affiliates
with the same rights it would have it if were not Trustee.
16. No Recourse Against Others. A director, officer, employee, partner,
affiliate, agent, servant or stockholder, as such, of the Partnership or the
Trustee shall not have any liability for any obligations of the Partnership
under the Bonds or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Bond, each Holder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Bonds.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Partnership has
caused CUSIP numbers to be printed on the Bonds and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Bond holders. No
representation made as to the accuracy of such numbers either as printed on the
Bonds or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
18. Indentures. The Partnership will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Tenaska Georgia Partners, L.P., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Managing General Partner.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT (Tenants by
the Entireties), JT TEN (Joint Tenants with Rights of Survivorship and not as
Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to Minors Act).
20. Descriptive Headings. The descriptive headings appearing in these
Terms and Conditions are for convenience of reference only and shall not alter,
limit or define the provisions thereof.
Exhibit B-5
EXHIBIT C
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
-----------------------------------------------------------
-----------------------------------------------------------
(PRINT NAME AND ADDRESS OF TRANSFEREE)
U.S. $__________principal amount of this Bond and all rights with
respect thereto, and irrevocably constitutes and appoints
______________________as attorney to transfer this Bond on the books kept for
registration thereof, with full power of substitution.
Dated:
-------------------------------- --------------------------------
Signed:
--------------------------------
Note:
(i) The signature on this transfer form must
correspond to the name as it appears on the face of this Bond.
(ii) A representative of the Holder should state the
capacity in which he or she signs (e.g., executor).
(iii) The signature of the person effecting the transfer
shall conform to any list of duly authorized specimen signatures
supplied by the registered holder or shall he certified by a bank which
is a member of the Medallion Program or in such other manner as the
Paying Agent, acting in its capacity as transfer agent or the Trustee,
acting in its capacity as Registrar, may require.
Exhibit C-1
EXHIBIT D
FORM OF TRANSFER RESTRICTION LEGEND
THE BONDS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) EXCEPT
(A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (B) BY
SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN
ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
Exhibit D-1
EXHIBIT E
FORM OF RULE 144A TRANSFER CERTIFICATE
[Date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1,
1999, between Tenaska Georgia Partners, L.P., as Issuer, and The Chase Manhattan
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Rule 144A, as the
case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(f) (Transfers and Exchanges of the Restricted Global Bond and Beneficial
Interests Therein):
This certificate relates to US$ 275,000,000 principal amount of Bonds
which are held in the form of a beneficial interest in the Restricted Global
Bond (CUSIP No. ______________ ) with the Depositary in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest for one or more Certificated Bonds to be registered in
the name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(e) (Transfers and Exchanges of the Restricted Global Bond and Beneficial
Interests Therein):
This certificate relates to US$ 275,000,000 principal amount of Bonds
which are held in the form of a beneficial interest in the Regulation S Global
Bond (CUSIP No. ______________ ) with the Depositary in the name of [insert name
of transferor] (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Restricted Global Bond to be registered in the
name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.7.3(c) transfers and Exchanges of Certificated Bonds):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of one or more Certificated Bonds registered in the
name of [insert name of transferor (the "Transferor"). The Transferor has
requested a transfer of such Certificated Bonds for a beneficial interest in the
Restricted Global Bond (CUSIP No. _____________ ) to be held [with the
Depositary in the name of [insert name of Transferee] (the "Transferee").]
In connection with such request for transfer and in respect of such
Bonds, the Transferor does hereby certify that such transfer is being effected
in accordance with the transfer restrictions set forth in the Indenture and the
Bonds and pursuant to and in accordance with Rule 144A, and accordingly the
Transferor does hereby certify:
Exhibit E-1
(1) the Transferee is a person that the Transferor and any
person acting on behalf of the Transferor reasonably believe is purchasing such
Bonds for its own account, or for one or more accounts with respect to which the
Transferee exercises sole investment discretion, and the Transferee and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A;
(2) the Transferor and any person acting on its behalf has
taken reasonable steps to ensure that the Transferee is aware that the
Transferor may be relying on Rule 144A in connection with the transaction; and
(3) the transaction satisfies all other requirements of Rule
144A and of any applicable Bonds laws of any state of the United States or any
other jurisdiction.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferor]
By:
Name:
Title:
Exhibit E-2
EXHIBIT F
FORM OF RULE 144A EXCHANGE CERTIFICATE
[Date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1,
1999, between Tenaska Georgia Partners, L.P., as Issuer, and The Chase Manhattan
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Rule 144A, as the
case may be.
This certificate relates to US$ __________ principal amount of Bonds
which are held in the form of Certificated Bonds in the name of [insert name of
holder] (the "Holder"). The Holder has requested an exchange of such
Certificated Bonds for a beneficial interest in the Restricted Global Bond
(CUSIP No. _____________ ) to be held with the Depositary in the name of the
Holder.
In connection with such request for exchange and in respect of such
Bonds, the Holder does hereby certify that it is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferor]
By:
----------------------------------
Name:
Title:
Exhibit F-1
EXHIBIT G
FORM OF REGULATION S TRANSFER CERTIFICATE
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1, 1999
between Tenaska Georgia Partners, L.P., as Issuer and The Chase Manhattan Bank,
as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Regulation S, as the
case may be.
[Insert the following paragraph for any transfer made pursuant to Section
[2.7.2(c)] [2.7.2(d)] (Transfers and Exchanges of Global Bonds and Beneficial
Interests Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Restricted Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for a beneficial interest in the Regulation S Global Bond
(CUSIP No.__________) to be held [[include the following for any transfer made
pursuant to Section 2.7.2(c)]with [Euroclear] [Cedel] (Common Code
No.__________)] through the Depositary in the name of [insert name of
transferee] (the "Transferee").]
[(Insert the following paragraph for any transfer made pursuant to Section
2.7.3(c) (Transfers and Exchanges of Certificated Bonds):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of one or more Certificated Bonds registered in the
name of [insert name of transferor) (the "Transferor"). The Transferor has
requested a transfer of such Certificated Bonds for a beneficial interest in the
Regulation S Global Bond (CUSIP No.__________) to be held [with [Euroclear]
[Cedel]] through the Depositary in the name of [insert name of transferee] (the
"Transferee").]
In connection with such request for transfer and in respect of such
Bonds, the Transferor does hereby certify that such transfer is being effected
in accordance with the transfer restrictions set forth in the Indenture and the
Bonds and pursuant to and in accordance with Regulation S, and accordingly the
Transferor does hereby certify:
(1) the offer of such Bonds was not made to a person in
the United States;
(2) either (a) at the time the buy order for such Bonds was
originated, the Transferee was outside the United States or the
Transferor and any person acting on its behalf reasonably believed that
the Transferee was outside the United States or (b) the
G-1
transaction was executed in, or through the facilities of, a designated
offshore securities market and neither the Transferor nor any person
acting on its behalf knew that the transaction was pre-arranged with a
buyer in the United States,
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or 904(b) of
the Securities Act, as applicable, and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
[Add the following for transfers made during the Regulation S Restricted Period:
In addition, (A) if the provisions of Rule 903(c)(3) or Rule 904(c)(1)
of the Securities Act are applicable to the transaction, the Transferor hereby
certifies that the transfer is being made in accordance with the requirements of
Rule 903(c)(3) or Rule 904(c)(1), as the case may be, and (B) upon completion of
the transaction, the Transferee will hold the transferred beneficial interest
through Euroclear or Cedel.]
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferor]
By:
Name:
Title:
G-2
EXHIBIT H
FORM OF RULE 144 TRANSFER CERTIFICATE
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1, 1999
between Tenaska Georgia Partners, L.P., as issuer and The Chase Manhattan Bank
as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Rule 144, as the
case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(c) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Restricted Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for a beneficial interest in the Regulation S Global Bond
(CUSIP No.__________) to be held with the Depositary in the name of [insert name
of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(f) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Restricted Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for one or more Certificated Bonds to be registered in the
name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(g) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Regulation S Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for one or more Certificated Bonds to be registered in the
name of [insert name of transferee] (the "Transferee").]
In connection with such request for transfer and in respect of such
Bonds, the Transferor does hereby certify that such transfer has been effected
in accordance with the transfer
H-1
restrictions set forth in the Indenture and the Bonds, and that the Bonds are
being transferred in a transaction permitted by Rule 144 under the Securities
Act.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby,
[Name of Transferor]
By:
Name:
Title:
H-2
EXHIBIT I
FORM OF ACCREDITED INVESTOR TRANSFER CERTIFICATE
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1, 1999
between Tenaska Georgia Partners, L.P., as Issuer and The Chase Manhattan Bank,
as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Regulation D, as the
case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(f) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Restricted Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for a beneficial interest in one or more Certificated Bonds
(CUSIP No.__________) to be held with the Depositary in the name of [insert name
of transferee] (the "Transferee"].
[Insert the following paragraph for any transfer made pursuant to Section
2.7.2(g) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of a beneficial interest in the Regulation S Global
Bond (CUSIP No.__________) with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest for one or more Certificated Bonds to be registered in the
name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.7.3(a) (Transfers and Exchanges of Global Bonds and Beneficial Interests
Therein):
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of one or more Certificated Bonds registered in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such Certificated Bonds for one or more Certificated
Bonds to be registered in the name of [insert name of transferee] (the
"Transferee").]
The undersigned represents and warrants to you that:
I-1
(1) We are an institutional "accredited investor" (as defined
in Rule 501(a)(1). (2), (3) or (7) of Regulation D under the Securities
Act of 1933, as amended from time to time (the "Securities Act"))
purchasing for our own account or for the account of such an
institutional "accredited investor", and we are acquiring the Bonds not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or other applicable
securities law and we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of our investment in the Bonds and invest in or purchase
securities similar to the Bonds in the normal course of our business.
We and any accounts for which we are acting are each able to bear the
economic risk of our investment.
(2) We understand and acknowledge that the Bonds have not been
registered under the Securities Act or any other applicable securities
law and unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Bonds to offer, sell or
otherwise transfer such Bonds prior to the date which is two (2) years
after the later of the date of original issue and the last date on
which the Partnership or any Affiliate of the Partnership was the owner
of such Bonds (or any predecessor thereto) (such later date, the
"Resale Restriction Termination Date") only (a) if we are initial
investors in the Bonds, (i) to the Partnership, (ii) pursuant to a
registration statement which has been declared effective under the
Securities Act, (iii) in a transaction complying with the requirements
of Rule 144A under the Securities AM to a Person we reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A (a
"Qualified Institutional Buyer") that purchases for its own account or
for the account of a Qualified Institutional Buyer and to whom notice
is given that the transfer is being made in reliance on Rule 144A, (iv)
pursuant to offers and sales that occur outside of the United States
within the meaning of Regulation S under the Securities Act, or (v)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available), and (b) if we are
subsequent investors in the Bonds, (i) as set forth in clause (a)
immediately above and (ii) to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2) (3) or (7) of Regulation D
under the Securities Act that is purchasing the Bonds for its own
account or for the account of such an institutional "accredited
investor", in each case, in a transaction involving a minimum purchase
price of US$250,000 for such Bonds, subject in each of the foregoing
cases to any requirement of law that the disposition of our property or
the property of such investor account or accounts be at all times
within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Bonds is proposed to be made pursuant to clause
(b)(ii) immediately above prior to the Resale Restriction Termination
Date, the transferor shall deliver to the Partnership and the Trustee a
letter from the transferee substantially in the form of this letter,
which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501
(a)(l), (2), (3) or (7) of Regulation D under the Securities Act and
that it is acquiring such Bonds for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge that
the Partnership and the Trustee reserve the right prior to any offer,
sale or other transfer of the Bonds pursuant to clause (a)(iv), (a)(v)
or (b)(ii) immediately above prior to the
I-2
Resale Restriction Termination Date to require the delivery of an
opinion of counsel, certifications and/or other information
satisfactory to the Partnership and the Trustee.
(3) We are acquiring the Bonds purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferee]
By:
Name:
Title:
I-3
EXHIBIT J
FORM OF REGULATION S EXCHANGE CERTIFICATE
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1,
1999, between Tenaska Georgia Partners, L.P., as Issuer, and The Chase Manhattan
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Regulation S, as the
case may be.
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of Certificated Bonds in the name of [insert name of
holder] (the "Holder"). The Holder has requested an exchange of such
Certificated Bonds for a beneficial interest in the Regulation S Global Bond
(CUSIP No.__________) to be held with [[Euroclear] [Cedel] through] the
Depositary in the name of the Holder.
In connection with such request for exchange and in respect of such
Bonds, the Holder does hereby certify that it acquired such Bonds in accordance
with the transfer restrictions set forth in the Indenture and the Bonds and
pursuant to and in accordance with Regulation S under the Securities Act.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferor]
By:
Name:
Title:
J-I
EXHIBIT K
FORM OF ACCREDITED INVESTOR EXCHANGE CERTIFICATE
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of November 1, 1999
between Tenaska Georgia Partners, L.P., as Issuer, and The Chase Manhattan Bank,
as Trustee. Capitalized terms used but not defined herein shall have the
respective meanings given to such terms in the Indenture or Regulation D, as the
case may be.
This certificate relates to US$__________ principal amount of Bonds
which are held in the form of Certificated Bonds in the name of [insert name of
holder] (the "Holder"). The Holder has requested an exchange of such
Certificated Bonds for a beneficial interest in the IAI Global Bond (CUSIP No.
___) to be held with the Depositary in the name of the Holder.
In connection with such request for exchange and in respect of such
Bonds, the Holder does hereby certify that it is an institutional "accredited
investor" (as defined in Rule 50l(a)(1), (2), (3) or (7) of Regulation D.
You and the Partnership are entitled to rely upon this certificate and
are irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Name of Transferor]
By:
Name:
Title:
Exhibit H-1