1
Exhibit 4.9a
EXECUTION COPY
================================================================================
INDENTURE OF TRUST
AND SECURITY AGREEMENT
(▇▇▇▇▇▇▇▇ A-1)
Dated as of May 1, 1999
between
▇▇▇▇▇▇▇▇ FACILITY
TRUST A-1,
as Owner Trust
and
BANKERS TRUST COMPANY,
as Indenture Trustee
▇▇▇▇▇▇▇▇
COAL-FIRED GENERATION FACILITY
================================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS.................................................... 5
SECTION 2 THE LESSOR NOTES............................................... 5
Section 2.1 Limitation on Notes..................................... 5
Section 2.2 Lessor Notes............................................ 5
Section 2.3 Execution and Authentication of Notes................... 6
Section 2.4 Issuance and Terms of the Lessor Notes.................. 6
Section 2.5 Payments from Indenture Estate Only; No Personal
Liability of the Owner Trust, the Owner Participant
or the Indenture Trustee................................ 7
Section 2.6 Method of Payment....................................... 8
Section 2.7 Application of Payments................................. 9
Section 2.8 Registration, Transfer and Exchange of Notes............ 9
Section 2.9 Mutilated, Destroyed, Lost or Stolen Notes.............. 10
Section 2.10 Redemptions; Assumption................................ 10
Section 2.11 Payment of Expenses on Transfer........................ 13
Section 2.12 Additional Lessor Notes................................ 14
Section 2.13 Restrictions on Transfer Resulting from Federal
Securities Laws; Legend................................ 15
Section 2.14 Security for and Parity of Notes....................... 16
Section 2.15 Acceptance of the Indenture Trustee.................... 16
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM
INDENTURE ESTATE............................................. 16
Section 3.1 Distribution of Basic Rent.............................. 16
Section 3.2 Payments Following Event of Loss or Other Early
Termination............................................. 18
Section 3.3 Payments After Indenture Event of Default............... 18
Section 3.4 Investment of Certain Payments Held by the Indenture
Trustee................................................. 19
Section 3.5 Application of Certain Other Payments................... 20
Section 3.6 Other Payments.......................................... 20
Section 3.7 Excepted Payments....................................... 20
Section 3.8 Distributions to the Owner Trust........................ 21
Section 3.9 Payments Under Assigned Documents....................... 21
Section 3.10 Disbursement of Amounts Received by the Indenture
Trustee................................................ 21
SECTION 4 DEFAULTS; REMEDIES OF INDENTURE TRUSTEE........................ 22
Section 4.1 Occurrence of Indenture Event of Default................ 22
Section 4.2 Remedies of the Indenture Trustee....................... 23
Section 4.3 Right to Cure Certain Lease Events of Default........... 25
Section 4.4 Rescission of Acceleration.............................. 28
Section 4.5 Return of Indenture Estate, Etc......................... 28
Section 4.6 Power of Sale and Other Remedies........................ 29
i
3
Section 4.7 Appointment of Receiver................................. 30
Section 4.8 Remedies Cumulative..................................... 31
Section 4.9 Waiver of Various Rights by the Owner Trust............. 31
Section 4.10 Discontinuance of Proceedings.......................... 31
Section 4.11 No Action Contrary to the Lessee's Rights Under the
Lease.................................................. 32
Section 4.12 Right of the Indenture Trustee to Perform Covenants,
Etc. .................................................. 32
Section 4.13 Further Assurances..................................... 32
Section 4.14 Waiver of Past Defaults................................ 32
SECTION 5 DUTIES OF INDENTURE TRUSTEE;................................... 33
Section 5.1 Notice of Action Upon Indenture Event of Default........ 33
Section 5.2 Actions upon Instructions Generally..................... 33
Section 5.3 Actions Upon Payment of Notes or Termination of
Lease................................................... 33
Section 5.4 Compensation of the Indenture Trustee;
Indemnification......................................... 34
Section 5.5 No Duties Except as Specified; No Action Except Under
Lease, Indenture or Instructions........................ 34
Section 5.6 Certain Rights of the Owner Trust....................... 34
Section 5.7 Restrictions on Dealing with Indenture Estate........... 36
Section 5.8 Filing of Financing Statements and Continuation
Statements.............................................. 36
SECTION 6 INDENTURE TRUSTEE AND OWNER TRUST............................... 37
Section 6.1 Acceptance of Trusts and Duties......................... 37
Section 6.2 Absence of Certain Duties............................... 39
Section 6.3 Representations, Warranties and Covenants............... 39
Section 6.4 No Segregation of Moneys; No Interest................... 40
Section 6.5 Reliance; Agents; Advice of Experts..................... 41
SECTION 7 SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES............. 41
Section 7.1 Resignation or Removal of the Indenture Trustee;
Appointment of Successor................................ 41
Section 7.2 Appointment of Additional and Separate Trustees......... 43
SECTION 8 SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER
DOCUMENTS.................................................... 44
Section 8.1 Supplemental Indentures and Other Amendments With
Consent, Conditions and Limitations..................... 44
Section 8.2 Supplemental Indentures and Other Amendments Without
Consent................................................. 45
Section 8.3 Conditions to Action by the Indenture Trustee........... 46
SECTION 9 MISCELLANEOUS.................................................. 46
Section 9.1 Surrender, Defeasance and Release....................... 46
Section 9.2 Conveyances Pursuant to Section 5.2 of Site Lease....... 48
Section 9.3 Appointment of the Indenture Trustee as Attorney;
Further Assurances...................................... 48
ii
4
Section 9.4 Indenture for Benefit of Certain Persons Only........... 48
Section 9.5 Notices, Furnishing Documents, etc...................... 49
Section 9.6 Severability............................................ 50
Section 9.7 Limitation of Liability................................. 50
Section 9.8 Written Changes Only.................................... 51
Section 9.9 Counterparts............................................ 51
Section 9.10 Successors and Permitted Assigns....................... 51
Section 9.11 Headings and Table of Contents......................... 51
Section 9.12 Governing Law.......................................... 51
Section 9.13 Reorganization Proceedings with Respect to the Trust
Estate................................................. 51
Section 9.14 Withholding Taxes; Information Reporting............... 52
EXHIBITS
Exhibit - A Description of Facility
Exhibit - B Description of Facility Site
Exhibit - C Form of 2016 Lessor Note
Exhibit - D Form of 2020 Lessor Note
iii
5
INDENTURE OF TRUST AND SECURITY AGREEMENT
(▇▇▇▇▇▇▇▇ A-1)
This INDENTURE OF TRUST AND SECURITY AGREEMENT (▇▇▇▇▇▇▇▇ A-1) (as
amended, supplemented or otherwise modified from time to time in accordance with
the provisions hereof, this "Indenture"), dated as of May 1, 1999, between
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1, a Delaware business trust, as grantor (the "Owner
Trust"), and BANKERS TRUST COMPANY, as grantee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Owner Trust and the Lessee will enter into that certain
Facility Lease Agreement (▇▇▇▇▇▇▇▇ A-1), dated as of May 1, 1999 (as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions thereof, the "Lease"), pursuant to which the Owner Trust will lease
to the Lessee and the Lessee will lease from the Owner Trust for a term of years
the Owner Trust's 25.000% undivided interest as tenant in common in and to the
Facility with the right to nonexclusive possession thereof (the "Undivided
Interest");
WHEREAS, AEE will lease a corresponding 25.000% undivided interest
as tenant in common in and to the Facility Site with the right to nonexclusive
possession thereof (the "Ground Interest") to the Owner Trust pursuant to the
Site Lease and the Owner Trust simultaneously therewith will sublease the Ground
Interest back to AEE pursuant to the Site Sublease;
WHEREAS, the Facility is more particularly described in Exhibit A
attached hereto and made a part hereof and is located on the Facility Site,
which is more particularly described in Exhibit B attached hereto and made a
part hereof;
WHEREAS, the Owner Trust was authorized and directed in the Trust
Agreement (▇▇▇▇▇▇▇▇ A-1), dated as of May 1, 1999 (the "Trust Agreement"),
between Wilmington Trust Company and the Owner Participant to execute and
deliver this Indenture;
WHEREAS, in connection with the transactions contemplated by the
Trust Agreement, the Owner Trust entered into the Participation Agreement;
WHEREAS, the Owner Trust, pursuant to the Trust Agreement and the
Participation Agreement, will purchase the Undivided Interest from NYSEG and NGE
and concurrently therewith will lease such Undivided Interest to the Lessee
pursuant to the Lease;
WHEREAS, in accordance with this Indenture, the Owner Trust will
execute and deliver the Lessor Notes, the proceeds of which will be used by the
Owner Trust to finance a portion of the Purchase Price, and will grant to the
Indenture Trustee the security interests herein provided;
6
WHEREAS, this Indenture is regarded as a security agreement under
the Uniform Commercial Code of the State of New York; and
WHEREAS, the Owner Trust and the Indenture Trustee desire to enter
into this Indenture, to, among other things, provide for (a) the issuance by the
Owner Trust of the Lessor Notes, (b) the assignment by the Owner Trust to the
Indenture Trustee, as part of the Indenture Estate, of the Undivided Interest,
the Ground Interest, the Owner Trust's interest as tenant under the Site Lease,
the Owner Trust's interest as landlord and sublandlord under the Lease and the
Site Sublease, respectively, the Owner Trust's interest as assignee of the
Lessee's interest in any sublease hereinafter entered into by the Lessee as
sublessor, the Owner Trust's interest under the Participation Agreement and all
payments and other amounts received or receivable hereunder or thereunder in
accordance herewith (excluding Excepted Payments and except as otherwise
provided herein or therein) as security for, inter alia, the Owner Trust's
obligations to and for the benefit of the Noteholders and for the benefit and
security of such Noteholders.
GRANTING CLAUSE:
NOW, THEREFORE, in order to secure the indebtedness and other
obligations, agreements, and covenants of the Owner Trust set forth hereinafter
and in the Notes, the Operative Documents and the other documents, certificates
and agreements delivered in connection therewith, the Owner Trust does hereby
irrevocably grant unto the Indenture Trustee, and the successors and permitted
assigns of the Indenture Trustee, for the benefit of the holders of the Notes, a
Lien on and security interest in all of the Owner Trust's right, title and
interest in and to the Indenture Estate, including all accounts, money, chattel
paper, securities, instruments, documents, deposit accounts, certificates of
deposit, letters of credit, advices of credit, banker's acceptances, general
intangibles, contract rights, goods, investment property, land, easements,
rights, improvements, personal property, fixtures, equipment and appurtenances
and other property consisting of, arising from or relating to the following
described property and interests and estates, whether now held or hereafter
acquired:
(1) the Undivided Interest and the leasehold estate in the Ground
Interest granted by the Site Lease;
(2) all right, title and interest of the Owner Trust in, to and
under the Lease, the Site Lease, the Site Sublease, the Participation
Agreement, the Facilities Support Agreement, the Coal Hauling Agreement,
any Payment Undertaking Agreement (including any Rent Reserve Account
Payment Undertaking Agreement and any Special Rent Reserve Account Payment
Undertaking Agreement) (collectively, the "Assigned Documents"),
including, without limitation, (i) all amounts of Basic Rent, Supplemental
Rent, including, without limitation, Termination Value, insurance proceeds
and condemnation, requisition and other awards and payments of any kind
for or with respect to any part of the Indenture Estate as contemplated in
the Assigned Documents, (ii) all right, title and interest of the Owner
Trust as assignee of the Lessee's interest in any sublease hereafter
entered into by the Lessee as sublessor, and (iii) all rights of the Owner
Trust to exercise any election or option or to make any decision or
determination
2
7
or to give or receive any notice, consent, waiver or approval or to take
any other action under or in respect of any Assigned Document, as well as
all the rights, powers and remedies on the part of the Owner Trust,
whether arising under any Assigned Document or by statute or at law or
equity or otherwise, arising out of any Lease Material Default or Lease
Event of Default;
(3) all rents (including Basic Rent and Supplemental Rent), issues,
profits, royalties, products, revenues and other benefits of the Indenture
Estate from time to time accruing and all property from time to time
subjected or required to be subjected to the Lien of this Indenture and
all the estate, right, title, interest, property, possession, claim and
demand whatsoever at law as well as in equity of the Owner Trust in and to
the same (the "Revenues");
(4) all moneys, securities and other investment property deposited
or required to be deposited with the Indenture Trustee pursuant to any
term of this Indenture or any other Assigned Document and held or required
to be held by or for the benefit of the Indenture Trustee hereunder;
(5) all right, title and interest of the Owner Trust in and to any
right to restitution from the Lessee in respect of any determination of
invalidity of any Assigned Document;
(6) all other personal property, rights and privileges of every kind
and description, whether tangible or intangible, and all interest therein
now held or hereafter acquired by the Owner Trust pursuant to any term of
any Assigned Document, whether located on the Facility Site or elsewhere
and whether or not subjected to the Lien of this Indenture by a supplement
hereto; and
(7) all proceeds of the foregoing;
BUT EXCLUDING from the Indenture Estate all Excepted Payments and
SUBJECT TO the Excepted Rights and the rights of the Owner Trust hereunder,
including, without limitation, Section 4.3 (which collectively, including all
property hereafter specifically subjected to the security interest created by
this Indenture by any supplement hereto, are included within, and are hereafter
referred to as, the "Indenture Estate");
TO HAVE AND TO HOLD the Indenture Estate and all parts, rights,
members and appurtenances thereof, to the use, benefit and on behalf of the
Indenture Trustee and the successors and permitted assigns of the Indenture
Trustee forever.
This Indenture is intended to constitute a security agreement as
required under the Uniform Commercial Code of the State of New York, but is not
intended to create a mortgage lien on real property. Simultaneous with the
execution and delivery of this Indenture, the Owner Trust will execute and
deliver the Mortgage granting a Lien on the Mortgaged Property. This Indenture
is given to secure the payment of the following described indebtedness
(hereinafter collectively referred to as the "Secured Indenture Indebtedness"):
3
8
(a) The indebtedness evidenced by the Lessor Notes, together with
interest thereon at the rate provided in each such Lessor Note and premium
thereon and together with any and all renewals, modifications,
consolidations and extensions of the indebtedness evidenced by such Lessor
Notes;
(b) Any and all additional advances made by the Indenture Trustee to
protect or preserve the Indenture Estate or the security interest and
other interests created hereby on the Indenture Estate or for taxes,
assessments or insurance premiums as hereinafter provided or for
performance of any of the Owner Trust's obligations hereunder or for any
other purpose provided herein, including, without limitation, advances
made pursuant to Section 4.12 (whether or not the Owner Trust remains the
owner of the Indenture Estate at the time of such advances);
(c) Any and all expenses incident to the collection of the Secured
Indenture Indebtedness and the foreclosure hereof by action in any court
or by exercise of the power of sale herein contained;
(d) Any and all other indebtedness now owing or which may hereafter
be owing by the Owner Trust to the Indenture Trustee, whether evidenced by
Additional Lessor Notes pursuant to Section 2.12 or otherwise, however and
whenever incurred or evidenced, whether direct or indirect, absolute or
contingent, due or to become due, together with any and all renewal or
renewals and extension or extensions of said other indebtedness; and
(e) Any and all Additional Lessor Notes, together with interest
thereon at the rate provided in each such Additional Lessor Note and
premium thereon (if any) and together with any and all renewals,
modifications, consolidations and extensions of the indebtedness evidenced
by such Additional Lessor Notes, and principal of such Additional Lessor
Notes being due and payable as provided in each such Additional Lessor
Note.
PROVIDED, HOWEVER, that if the principal, interest and any other
amounts to become due in respect of all the Notes and all other amounts due the
holders of the Notes and the Indenture Trustee at the time and in the manner
required hereby and by the Notes, the Lease and the Participation Agreement (but
not including Excepted Payments) shall have been paid and all the covenants,
agreements, terms and provisions hereunder or thereunder to be performed or
complied with by the Owner Trust and the Lessee shall have been performed or
complied with, then this Indenture shall be surrendered and canceled and upon
such surrender and cancellation the rights hereby and thereby granted and
assigned shall terminate and cease.
The Indenture Trustee, for itself and its successors and permitted
assigns, hereby agrees that it shall hold the Indenture Estate, in trust for the
benefit and security of (i) the holders from time to time of the Notes from time
to time outstanding, without any priority of any one Note over any other except
as herein otherwise expressly provided and (ii) the Indenture Trustee, and for
the uses and purposes and subject to the terms and provisions set forth in this
Indenture (it being understood that the Indenture Trustee shall have no
obligation
4
9
or liability under any Assigned Document by reason of or arising out of the
assignment thereof pursuant to this Indenture, nor be required or obligated in
any manner, except as herein expressly provided, to perform or fulfill any
obligation of the Owner Trust under or pursuant to any such Assigned Document
or, except as herein expressly provided, to make any payment, or to make any
inquiry as to the nature or sufficiency of any payment received by it, or to
present or file any claim, or to take any action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times).
Accordingly, the Owner Trust, for itself and its successors and
permitted assigns, agrees that all Notes are to be issued and delivered and that
all property subject or to become subject hereto is to be held subject to the
further covenants, conditions, uses and trusts hereinafter set forth, and the
Owner Trust, for itself and its successors and permitted assigns, hereby
covenants and agrees with the Indenture Trustee, for the benefit and security of
the holders from time to time of the Notes from time to time outstanding, to
protect the security of this Indenture, and the Indenture Trustee agrees to
accept the trusts and duties hereinafter set forth, as follows:
SECTION 1
DEFINITIONS
Capitalized terms used in this Indenture, including the recitals and
the Granting Clause, and not otherwise defined herein shall have the respective
meanings set forth in Appendix A of the Participation Agreement (▇▇▇▇▇▇▇▇ A-1),
dated as of May 1, 1999 (the "Participation Agreement"), among AEE, the Owner
Trust, the Owner Participant and Bankers Trust Company, as Indenture Trustee and
as Pass Through Trustees, unless the context hereof shall otherwise require, a
copy of which Appendix A is attached hereto. The general provisions of Appendix
A to the Participation Agreement shall apply to terms used in this Indenture and
specifically defined herein.
SECTION 2
THE LESSOR NOTES
Section 2.1 Limitation on Notes. No Notes may be issued under the
provisions of, or become secured by, this Indenture except in accordance with
the provisions of this Section 2. The aggregate principal amount of the Notes
which may be authenticated and delivered and outstanding at any one time under
this Indenture shall be limited to the aggregate principal amount of the Lessor
Notes issued on the Closing Date to the appropriate Pass Through Trustee plus
the aggregate principal amount of Additional Lessor Notes issued pursuant to
Section 2.12.
Section 2.2 Lessor Notes. There are hereby created and established
hereunder each of (a) a note in the aggregate principal amount of $29,117,209.87
with a ▇▇▇▇▇
▇
10
maturity date of July 2, 2016, substantially in the form set forth in Exhibit C
to this Indenture (the "2016 Lessor Note") and (b) a note in the aggregate
principal amount of $14,672,192.10 with a final maturity date of July 2, 2020,
substantially in the form set forth in Exhibit D to this Indenture (the "2020
Lessor Note" and, together with the 2016 Lessor Note, the "Lessor Notes" or,
individually, a "Lessor Note").
Section 2.3 Execution and Authentication of Notes. Each Note issued
hereunder shall be executed and delivered on behalf of the Owner Trust by one of
its authorized signatories, be in fully registered form, be dated the date of
original issuance of such Note and be in denominations of not less than
$100,000. Any Note may be signed by a Person who, at the actual date of the
execution of such Note, is an authorized signatory of the Owner Trust although
at the nominal date of such Note such Person may not have been an authorized
signatory of the Owner Trust. No Note shall be secured by or be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears thereon a certificate of authentication in the form contained on
such Note (or in the appropriate form provided for in any supplement hereto
executed pursuant to Section 2.12), executed by the Indenture Trustee by the
manual signature of one of its authorized officers, and such certificate upon
any Note shall be conclusive evidence that such Note has been duly authenticated
and delivered hereunder. The Indenture Trustee shall authenticate and deliver
the 2016 Lessor Note and the 2020 Lessor Note for original issue in the
respective aggregate principal amount specified in Section 2.2, upon a written
order of the Owner Trust signed by the Owner Trust The Indenture Trustee shall
authenticate and deliver Additional Lessor Notes, upon a written order of the
Owner Trust executed by the Owner Trust and satisfaction of the conditions
specified in Section 2.12. Such order shall specify the principal amount of the
Additional Lessor Notes to be authenticated and the date on which the original
issue of Additional Lessor Notes is to be authenticated.
Section 2.4 Issuance and Terms of the Lessor Notes.
(a) Issuance of the Lessor Notes. There shall be issued to the
appropriate Pass Through Trustee the 2016 Lessor Note and the 2020 Lessor Note,
as the case may be, dated the Closing Date. The aggregate amount of the Lessor
Notes shall be in the principal amount equal to the principal amount of the loan
made to the Owner Trust pursuant to Section 2.1 of the Participation Agreement.
(b) Principal and Interest. The principal amount of the 2016 Lessor
Note shall be due and payable in installments having a final payment date of
July 2, 2016 and the principal amount of the 2020 Lessor Note shall be due and
payable in installments having a final payment date of July 2, 2020. The
principal of the Lessor Notes shall be due and payable in installments on the
respective dates and in the respective amounts set forth in Schedule 1 attached
to the respective Lessor Note on the date of issuance and authentication
thereof. Schedule 1 to such Lessor Note to the contrary notwithstanding, the
last installment of principal of such Lessor Note shall be equal to the then
unpaid balance of the principal of such Lessor Note. Each Lessor Note shall bear
interest on the principal amount thereof from time to time outstanding from and
including the date of issuance thereof (computed on the basis of a
6
11
360-day year of twelve 30-day months) until paid in full at the rate set forth
in such Lessor Note. Interest on each Lessor Note shall be due and payable in
arrears commencing on January 2, 2000, and semi-annually on each January 2 and
July 2 thereafter until paid in full. If any day on which principal, premium, if
any, or interest on the Lessor Notes is payable is not a Business Day, payment
thereof shall be made on the next succeeding Business Day with the same effect
as if made on the date on which such payment was due (without, in the case of
any such payment, the payment or accrual of any interest or any late payment or
other charge, provided that such payment is made on the next succeeding Business
Day).
(c) Overdue Payments. Interest (computed on the basis of a 360-day
year of twelve 30-day months) on any overdue principal and premium, if any, and,
to the extent permitted by Applicable Law, on overdue interest shall be paid on
demand at the Overdue Rate.
Section 2.5 Payments from Indenture Estate Only; No Personal
Liability of the Owner Trust, the Owner Participant or the Indenture
Trustee.
(a) Except as otherwise specifically provided in this Indenture and
in the Participation Agreement, all payments to be made by the Indenture Trustee
in respect of the Notes or under this Indenture shall be made only from the
Indenture Estate, and the Owner Trust shall have no obligation for the payment
thereof except to the extent that there shall be sufficient income or proceeds
from the Indenture Estate to make such payments in accordance with the terms of
Section 3; and the Owner Participant shall not have any obligation for payments
in respect of the Notes or under this Indenture.
(b) The Indenture Trustee and each Noteholder, by its acceptance
thereof, agrees that it will look solely to the income and proceeds from the
Indenture Estate to the extent available for distribution to the Indenture
Trustee or such Noteholder, as the case may be, as herein provided and that,
except as expressly provided in this Indenture or the Participation Agreement,
neither the Owner Participant, the Owner Trust, the Lease Indenture Company, nor
the Indenture Trustee shall be personally liable to such Noteholder or the
Indenture Trustee for any amounts payable hereunder, under such Note or for any
performance to be rendered under any Assigned Document or for any liability
under any Assigned Document.
(c) Without prejudice to the foregoing, the Owner Trust will duly
and punctually pay or cause to be paid the principal of, premium, if any, and
interest on all Notes according to their terms and the terms of this Indenture.
Nothing contained in this Section 2.5 limiting the liability of the Owner Trust
shall derogate from the right of the Indenture Trustee and the Noteholders to
proceed against the Indenture Estate to secure and enforce all payments and
obligations due hereunder and under the Assigned Documents and the Notes.
(d) In furtherance of the foregoing, to the fullest extent permitted
by law, each Noteholder (and each assignee of such Person), by its acceptance
thereof, agrees, as a condition to its being secured under this Indenture, that
neither it nor the Indenture Trustee will exercise any statutory right to negate
the agreement set forth in this Section 2.5.
7
12
(e) Nothing herein contained shall be interpreted as affecting the
representations, warranties or agreements of the Owner Trust set forth in the
Participation Agreement.
Section 2.6 Method of Payment.
(a) The Owner Trust shall maintain an office or agency where Notes
may be presented for payment (the "Paying Agent"). The Owner Trust may have one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Owner Trust initially appoints the Indenture
Trustee as Paying Agent in connection with the Notes.
(b) The Owner Trust shall deposit with the Paying Agent a sum
sufficient to pay all amounts due and owing under the Notes when the same shall
so become due. The Owner Trust shall require each Paying Agent (other than the
Indenture Trustee) to agree in writing that the Paying Agent shall hold in trust
for the benefit of Noteholders or the Indenture Trustee all money held by the
Paying Agent for the payment of principal of or interest and premium, if any, on
the Notes and shall notify the Indenture Trustee of any default by the Owner
Trust in making any such payment.
(c) The principal of and premium, if any, and interest on each Note
shall be paid by the Indenture Trustee from amounts available in the Indenture
Estate on the dates provided in the Notes by mailing a check for such amount,
payable in New York Clearing House funds, to each Noteholder at the last address
of each such Noteholder appearing on the Note Register, or by whichever of the
following methods shall be specified by notice from a Noteholder to the
Indenture Trustee: (i) by crediting the amount to be distributed to such
Noteholder to an account maintained by such Noteholder with the Indenture
Trustee, (ii) by making such payment to such Noteholder in immediately available
funds at the Indenture Trustee Office, or (iii) in the case of the Lessor Notes
and in the case of other Notes, if such Noteholder is one of the Pass Through
Trustees, or a bank or other institutional investor, by transferring such amount
in immediately available funds for the account of such Noteholder to the banking
institution having bank wire transfer facilities as shall be specified by such
Noteholder, such transfer to be subject to telephonic confirmation of payment.
(d) Any payment made under any of the foregoing methods set forth in
clause (c) above, shall be made without any presentment or surrender of such
Note, unless otherwise specified by the terms of the Note. Upon final payment in
respect of any Note, such Note shall be surrendered to the Indenture Trustee.
(e) All payments in respect of the Notes shall be made (i) as soon
as practicable prior to the close of business on the date the amounts to be
distributed by the Indenture Trustee are actually received by the Indenture
Trustee if such amounts are received by 2:00 p.m., New York City time, on a
Business Day, or (ii) on the next succeeding Business Day if received after such
time or on any day other than a Business Day. One or more of the foregoing
methods of payment may be specified in a Note.
8
13
(f) Prior to due presentment for registration of transfer of any
Note, the Owner Trust and the Indenture Trustee may deem and treat the Person in
whose name any Note is registered on the Note Register as the absolute owner and
holder of such Note for the purpose of receiving payment of all amounts payable
with respect to such Note and for all other purposes, and neither the Owner
Trust nor the Indenture Trustee shall be affected by any notice to the contrary.
All payments made on any Note in accordance with the provisions of this Section
2.6 shall be valid and effective to satisfy and discharge the liability on such
Note to the extent of the sums so paid and neither the Indenture Trustee nor the
Owner Trust shall have any liability in respect of such payment.
Section 2.7 Application of Payments. Each payment on any outstanding
Note shall be applied, first, to the payment of accrued interest (including
interest on overdue principal and, to the extent permitted by Applicable Law,
overdue interest) on such Note to the date of such payment, second, to the
payment of the principal amount of, and premium, if any, on such Note then due
(including any overdue installments of principal) thereunder and, third, to the
extent permitted by Section 2.10 of this Indenture, the balance, if any,
remaining thereafter, to the payment of the principal amount of, and premium, if
any, on such Note. The order of application of payments prescribed by this
Section 2.7 shall not be deemed to supersede any provision of Section 3
regarding application of funds.
Section 2.8 Registration, Transfer and Exchange of Notes.
(a) The Owner Trust shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange (the "Registrar").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Owner Trust may have one or more co-registrars.
(b) The Owner Trust initially appoints the Indenture Trustee as
Registrar in connection with the Notes. The Indenture Trustee shall maintain at
the Indenture Trustee Office a register in which it will provide for the
registration, registration of transfer and exchange of Notes (such register
being referred to herein as the "Note Register"). If any Note is surrendered at
said office for registration of transfer or exchange (accompanied by a written
instrument of transfer duly executed by or on behalf of the holder thereof,
together with the amount of any applicable transfer taxes), the Owner Trust will
execute and the Indenture Trustee will authenticate and deliver, in the name of
the designated transferee or transferees, if any, one or more new Notes (subject
to the limitations specified in Sections 2.3 and 2.13) in any denomination or
denominations not prohibited by this Indenture, as requested by the Person
surrendering the Note, dated the same date as the Note so surrendered and of
like tenor (including maturity) and aggregate unpaid principal amount. Any Note
or Notes issued in a registration of transfer or exchange shall be entitled to
the same security and benefits to which the Note or Notes so transferred or
exchanged were entitled, including, without limitation, rights as to interest
accrued but unpaid and to accrue so that there will not be any loss or gain of
interest on the Note or Notes surrendered.
9
14
(c) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
holder thereof or his attorney duly authorized in writing, and the Indenture
Trustee may require an opinion of counsel as to compliance of any such transfer
with the Securities Act. The Indenture Trustee shall make a notation on each new
Note of the amount of all payments of principal previously made on the old Note
or Notes with respect to which such new Note is issued and the date on which
such new Note is issued and the date to which interest on such old Note or Notes
shall have been paid. The Indenture Trustee shall not be required to register
the transfer or exchange of any Note during the 15 days preceding the due date
of any payment on such Note.
Section 2.9 Mutilated, Destroyed, Lost or Stolen Notes. Upon receipt
by the Owner Trust and the Indenture Trustee of evidence satisfactory to each of
them of the loss, theft, destruction or mutilation of any Note and, in case of
loss, theft or destruction, of indemnity satisfactory to each of them, and upon
reimbursement to the Owner Trust and the Indenture Trustee of all reasonable
expenses incidental thereto and payment or reimbursement for any transfer taxes,
and upon surrender and cancellation of such Note, if mutilated, the Owner Trust
will execute and the Indenture Trustee will authenticate and deliver in lieu of
such Note, a new Note, dated the same date as such Note and of like tenor
(including maturity) and principal amount. Any indemnity provided by the holder
of a Note pursuant to this Section 2.9 must be sufficient in the judgment of the
Owner Trust and the Indenture Trustee to protect the Owner Trust, the Indenture
Trustee, the Paying Agent, the Registrar and any co-registrar or co-paying agent
from any loss which any of them may suffer if a Note is replaced.
Section 2.10 Redemptions; Assumption.
(a) Except as provided in paragraphs (c) and (d) of this Section
2.10 or as provided in any indenture supplemental hereto, the Notes shall be
redeemed at a price equal to the principal amount of the Notes redeemed, and
accrued interest on such principal amount so redeemed to the Redemption Date, in
whole but not in part, in the event of (i) the receipt of moneys by the
Indenture Trustee as a result of the occurrence of an Event of Loss (other than
a Regulatory Event of Loss in respect of which the Lessee effects an assumption
of the Notes in accordance with paragraph (b) of this Section 2.10), (ii) the
receipt of moneys by the Indenture Trustee as a result of the occurrence of a
termination of the Lease pursuant to Section 13.1 or 13.2 thereof, unless the
Lessee effects an assumption of the Notes in accordance with paragraph (b) of
this Section 2.10, and (iii) the receipt of moneys by the Indenture Trustee as a
result of a termination of the Lease pursuant to Section 14 thereof (other than
Section 14.1(b) thereof). Any such redemption shall be made in accordance with
the applicable provisions of Section 3.
(b) Unless a Lease Bankruptcy Default or a Lease Event of Default
shall have occurred and be then continuing, the obligations and liabilities of
the Owner Trust hereunder and under the Notes may be assumed in whole by the
Lessee in the event of the occurrence of (i) a Regulatory Event of Loss, (ii) a
termination by the Lessee pursuant to Section 13.1 of the Lease, or (iii) a
termination by the Lessee pursuant to Section 13.2 of the Lease, where in
connection with such termination the Lessee in each case acquires the
10
15
Undivided Interest pursuant to an assumption agreement (which assumption
agreement may be combined with the indenture supplemental to this Indenture
hereinafter in this subsection (b) referred to, and shall provide for the
assumption by the Lessee of the obligations and liabilities of the Owner Trust
and the Owner Participant under this Indenture and the other Operative
Documents) which shall make such obligations and liabilities fully recourse to
the Lessee and shall otherwise be in form and substance acceptable to the
Indenture Trustee. Such assumption agreement shall be accompanied by the opinion
of counsel described below. The Lessee will execute and deliver, and the
Indenture Trustee will authenticate, to each Noteholder in exchange for each old
Note a new Note, in a principal amount equal to the outstanding principal amount
of such old Note and otherwise in substantially similar form and tenor
(including maturity) to such old Note but indicating that the Lessee is the
issuer thereof. When such assumption agreement becomes effective, the Owner
Trust shall be released and discharged without further act from all obligations
and liabilities assumed by the Lessee. All documentation in connection with any
such assumption (including, without limitation, an indenture supplemental to
this Indenture which shall, among other things, contain provisions appropriately
amending references to the Lease in this Indenture and contain covenants by the
Lessee similar to those contained in the Lease, changed as appropriate, and
amendments or supplements to the other Operative Documents, officers'
certificates, opinions of counsel and regulatory approvals) shall be prepared by
and at the expense of the Lessee and shall be acceptable in form and substance
to the Indenture Trustee. As a condition to the effectiveness of the assumption
by the Lessee and the release of the Owner Trust and the Indenture Estate
thereby effected, (A) the Indenture Trustee shall have received an opinion or
opinions of counsel of the Lessee, addressed to the Indenture Trustee, to the
effect that (1) such assumption agreement has been duly authorized, executed and
delivered on behalf of the Lessee, (2) no regulatory approvals are necessary or
required in connection therewith (or if any such regulatory approvals is
necessary or required, that the same has been duly obtained and is in full force
and effect), (3) such assumption agreement and the supplemental indenture and,
in consequence of the execution and delivery of such assumption agreement, this
Indenture and the Notes, constitute the legal, valid and binding obligations of
the Lessee, enforceable in accordance with their respective terms (except as the
same may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, arrangement, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity), (4) such
assumption agreement and the assumption of the Notes thereunder would not cause
a Tax Event to occur, (5) the Lien of this Indenture and of the Mortgage shall
continue to be a perfected first priority security interest on the Indenture
Estate and on the Mortgaged Property, respectively, and (B) the Rating Agencies
shall have confirmed that such assumption will not result in a downgrading of
the rating on the Pass Through Certificates below that in effect on the Closing
Date; provided that if the Pass Through Certificates are then only rated by one
such rating agency, then confirmation is only required from the rating agency
then rating the Pass Through Certificates.
(c) The Owner Trust may, at its option, redeem any Additional Lessor
Note in whole, or in part, on any date, to the extent permitted by, and at the
prices set forth in, the supplemental indenture establishing the terms,
conditions and designations of such Additional
11
16
Lessor Notes, together with the accrued interest on such principal amount so
redeemed to the Redemption Date.
(d) The Lessor Notes shall also be redeemed, in whole, but not in
part, as provided below, at the redemption price set forth below, as follows:
(i) The Lessor Notes shall be redeemed at a price equal to the
principal amount of such Lessor Notes redeemed and accrued interest on
such principal amount so redeemed to the Redemption Date, plus the
Make-Whole Premium, upon the receipt by the Indenture Trustee of moneys as
a result of (y) an optional refinancing pursuant to Section 12.2 of the
Participation Agreement; or (z) an election by the Indenture Trustee
pursuant to Section 4.2(a) following the occurrence of an Indenture Event
of Default caused by a Lease Event of Default and acceleration of the
Lessor Notes hereunder so long as no "Lease Event of Default" shall have
occurred under any Other Lease or Related Lease. In the case of a
redemption pursuant to clause (y) of the first sentence of this clause
(i), the Owner Trust shall indemnify the Indenture Trustee and the Lessee
for any and all costs and expenses incurred in connection with such
redemption or, in the event no redemption occurs following delivery of any
notice pursuant to Section 2.10(f), the failure to consummate any such
redemption.
(ii) The Lessor Notes shall be redeemed at a price equal to the
principal amount thereof, together with interest accrued on such principal
amount to the Redemption Date, plus the Modified Make-Whole Premium, if
any, upon receipt of moneys by the Indenture Trustee as a result of the
exercise by the Lessee of its rights to terminate the Lease as a result of
an event described in clause (b) of Section 14.1 of the Lease.
The Make-Whole Premium and the Modified Make-Whole Premium, if any,
payable with respect to the Notes will be determined by an investment banking
institution of national standing (the "Investment Banker") selected by the
Lessee or, if the Indenture Trustee does not receive notice of such selection at
least ten days prior to a scheduled prepayment date or if a Lease Event of
Default under the Lease shall have occurred and be continuing, selected by the
Indenture Trustee.
(e) Notice of redemption having been given as provided in paragraph
(f) of this Section 2.10, the Notes shall, on the Redemption Date, become due
and payable at the applicable redemption price specified in this Section 2.10,
or with respect to a redemption pursuant to paragraph (c) of this Section 2.10,
in the supplemental indenture establishing the terms, conditions and
designations of Additional Lessor Notes pursuant to the applicable provisions of
this Indenture, and from and after receipt by the Indenture Trustee of such
redemption price in full in cash on such date, such Notes or portions thereof
shall cease to bear interest. Upon surrender of such Notes for redemption in
accordance with such notice, such Notes or portions thereof shall be paid by the
Owner Trust at the applicable redemption price.
(f) If the Owner Trust elects to redeem Notes pursuant to this
Section 2.10, it shall notify the Indenture Trustee in writing of the Redemption
Date, the Section of the
12
17
Indenture pursuant to which the redemption will occur (other than as a result of
an event described in clause (i)(z) of Section 2.10(d) in which case the Owner
Trust shall be required to redeem the Notes and the Indenture Trustee shall
notify the Owner Trust in writing of the Redemption Date at least 30 days before
such Redemption Date). The Owner Trust shall give each notice to the Indenture
Trustee provided for in this Section at least 30 days before the Redemption Date
unless the Indenture Trustee consents in writing to a shorter period. Such
notice shall be accompanied by an Officers' Certificate and an opinion of
counsel from the Lessee to the effect that such redemption will comply with the
conditions herein.
(g) The Indenture Trustee shall provide notice, at least 20 days but
not more than 60 days before the Redemption Date, by first-class mail to each
Noteholder to be redeemed at such Noteholder's registered address; provided that
no notice shall be required so long as the Pass Through Trustees and the
Indenture Trustee are the same entity. Each such notice shall state:
(i) the Redemption Date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(v) that, upon the receipt by the Indenture Trustee of such
redemption price in full in cash on such Redemption Date, interest on
Notes called for redemption ceases to accrue on and after such Redemption
Date; and
(vi) the paragraph of the Indenture pursuant to which the Notes
called for redemption are being redeemed.
(h) Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price stated in the notice, plus accrued interest to the
Redemption Date. Failure to give notice or any defect in the notice to any
Noteholder shall not affect the validity of the notice to any other Noteholder.
Section 2.11 Payment of Expenses on Transfer. Upon the issuance of a
new Note or Notes pursuant to Section 2.8 or 2.9, the Owner Trust or the
Indenture Trustee may require from the party requesting such new Note or Notes
payment of a sum to reimburse the Owner Trust and the Indenture Trustee for, or
to provide funds for, the payment of any tax or other governmental charge in
connection therewith or any changes and expenses connected with such tax or
governmental change paid or payable by the Owner Trust or the Indenture Trustee.
13
18
Section 2.12 Additional Lessor Notes.
(a) Additional Notes (each, an "Additional Lessor Note") of the
Owner Trust may be issued under and secured by this Indenture, at any time or
from time to time, in addition to the Lessor Notes and subject to the conditions
hereinafter provided in this Section 2.12, for cash, in the amount of the
original principal amount of such Additional Lessor Notes, for the purpose of
(i) providing funds in connection with a Supplemental Financing pursuant to
Section 12.1 of the Participation Agreement for the payment of all or any
portion of Modifications to the Facility; or (ii) redeeming any previously
issued Notes pursuant to an optional refinancing pursuant to Section 12.2 of the
Participation Agreement and providing funds for the payment of all reasonable
costs and expenses in connection therewith.
(b) Before any Additional Lessor Note shall be issued under the
provisions of this Section 2.12, the Owner Trust shall have delivered to the
Indenture Trustee, not less than 15 (unless a shorter period shall be
satisfactory to the Indenture Trustee) days nor more than 30 days prior to the
proposed date of issuance of such Additional Lessor Note, a request and
authorization to issue such Additional Lessor Note, which request and
authorization shall include the amount of such Additional Lessor Note, the
proposed date of issuance thereof and a certification that terms thereof are not
inconsistent with this Indenture. Additional Lessor Notes shall have a
designation so as to distinguish such Additional Lessor Notes from the Notes
theretofore issued, but otherwise shall rank pari passu with all Notes then
outstanding, be entitled to the same benefits and security of this Indenture as
the other Notes issued pursuant to the terms hereof, be dated the date of
original issuance of such Additional Lessor Notes, bear interest at such rates
as shall be agreed between the Lessee and the Owner Trust and indicated in the
aforementioned request and authorization, and shall be stated to be payable by
their terms not later than the last day of the Lease Basic Term.
(c) The terms, conditions and designations of such Additional Lessor
Notes (which shall be consistent with this Indenture) shall be set forth in an
indenture supplemental to this Indenture executed by the Owner Trust and the
Indenture Trustee. Such Additional Lessor Notes shall be executed as provided in
Section 2.3 and deposited with the Indenture Trustee for authentication, but
before such Additional Lessor Notes shall be authenticated and delivered by the
Indenture Trustee there shall be filed with the Indenture Trustee the following,
all of which shall be dated as of the date of the supplemental indenture:
(i) a copy of such supplemental indenture (which shall include the
form of such Additional Lessor Notes and the certificate of authentication
in respect thereof);
(ii) an Officer's Certificate of the Lessee (1) stating that to its
knowledge, no Lease Material Default or Lease Event of Default has
occurred and is then continuing (other than any Lease Material Default or
Lease Event of Default that will be cured by the proceeds of Additional
Lessor Notes to the extent provided in Section 12.1(v) of the
Participation Agreement), (2) stating that the conditions in respect of
the issuance of such Additional Lessor Notes contained in this Section
2.12 have been satisfied, (3) specifying the amount of the costs and
expenses relating to the issuance and sale of such
14
19
Additional Lessor Notes, and (4) stating that payments pursuant to the
Lease and all supplements thereto of Basic Rent and Termination Value,
together with all other amounts payable pursuant to the terms of the
Lease, are calculated to be sufficient to pay when due all of the
principal of and interest on the outstanding Notes, after taking into
account the issuance of such Additional Lessor Notes and any related
redemption of Notes theretofore outstanding;
(iii) an Officer's Certificate from the Owner Trust stating that, to
its knowledge, no Indenture Default under clauses (b) through (f) of
Section 4.1 or an Indenture Event of Default has occurred and is
continuing;
(iv) such additional documents, certificates and opinions as shall
be reasonably required by the Indenture Trustee, and as shall be
reasonably acceptable to the Indenture Trustee;
(v) a request and authorization to the Indenture Trustee by the
Owner Trust to authenticate and deliver such Additional Lessor Notes to or
upon order of the Person or Persons noted in such request at the address
set forth therein, and in such principal amounts as are stated therein,
upon payment to the Indenture Trustee, but for the account of the Owner
Trust, of the sum or sums specified in such request and authorization;
(vi) the consent of the Lessee to such request and authorization;
and
(vii) an opinion of counsel who shall be reasonably satisfactory to
the Indenture Trustee, as to the authorization, validity and
enforceability of the Additional Lessor Notes and as to the Lien and
security interest securing them.
When the documents referred to in the foregoing clauses (i) through
(vii) above shall have been filed with the Indenture Trustee and when the
Additional Lessor Notes described in the above mentioned request and
authorization shall have been executed and authenticated as required by this
Indenture and the related supplemental indenture, the Indenture Trustee shall
deliver such Additional Lessor Notes in the manner described in clause (v)
above, but only upon payment to the Indenture Trustee of the sum or sums
specified in such request and authorization.
Section 2.13 Restrictions on Transfer Resulting from Federal
Securities Laws; Legend. Each Note shall be delivered to the initial Noteholder
thereof without registration of such Note under the Securities Act and without
qualification of this Indenture under the Trust Indenture Act of 1939, as
amended. Prior to any transfer of any such Note, in whole or in part, to any
Person, the Noteholder thereof shall furnish to the Lessee, the Indenture
Trustee and the Owner Trust an opinion of counsel, which opinion and which
counsel shall be reasonably satisfactory to the Indenture Trustee, the Owner
Trust and the Lessee, to the effect that such transfer will not violate the
registration provisions of the Securities Act or require qualification of this
Indenture under the Trust Indenture Act of 1939, as amended, and all Notes
issued hereunder shall be endorsed with a legend which shall read substantially
as follows:
15
20
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
Section 2.14 Security for and Parity of Notes. All Notes issued and
outstanding hereunder shall rank on a parity with each other and shall as to
each other be secured equally and ratably by this Indenture, without preference,
priority or distinction of any thereof over any other by reason of difference in
time of issuance or otherwise.
Section 2.15 Acceptance of the Indenture Trustee. Each Noteholder,
by its acceptance of a Note, shall be deemed to have consented to the
appointment of the Indenture Trustee.
SECTION 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM INDENTURE ESTATE
Section 3.1 Distribution of Basic Rent.
(a) Basic Rent Distribution. Except as otherwise provided in Section
3.2 or 3.3, each installment of Basic Rent and any payment of Supplemental Rent
constituting interest on overdue installments of Basic Rent received by the
Indenture Trustee shall be distributed by the Indenture Trustee in the following
order of priority:
First, so much of such amounts as shall be required to pay in full
the aggregate principal and accrued interest (as well as any interest on
overdue principal and, to the extent permitted by Applicable Law, on
overdue interest) then due and payable under the Notes shall be
distributed to the Noteholders ratably, without priority of any Noteholder
over any other Noteholder, in the proportion that the amount of such
payment then due and payable under each such Note bears to the aggregate
amount of the payments then due and payable under all such Notes; and
Second, the balance, if any, of such amounts remaining shall be
distributed to the Owner Trust for distribution by it in accordance with
the terms of the Trust Agreement.
(b) Application of Other Amounts Held by the Indenture Trustee upon
Rent Default.
(i) If, as a result of any failure by the Lessee to pay Basic Rent
in full on any date when an installment of Basic Rent is due, there shall not
have been distributed on any date (or within any applicable period of grace)
pursuant to Section 3.1(a) the full amount then distributable pursuant to clause
"First" of Section 3.1(a), the Indenture Trustee shall distribute other payments
of the character referred to in Sections 3.5 and 3.6 then held by it, or
thereafter
16
21
received by it, to all Noteholders to the extent necessary to enable it to make
all the distributions then due pursuant to such clause "First."
(ii) To the extent the Indenture Trustee thereafter receives the
deficiency in Basic Rent, the amount so received shall, unless a Lease Material
Default or Indenture Event of Default shall have occurred and be continuing, be
applied to restore the amounts held by the Indenture Trustee under Section 3.5
or 3.6, as the case may be. The portion of each such payment made to the
Indenture Trustee which is to be distributed by the Indenture Trustee in payment
of Notes shall be applied in accordance with Section 2.7.
(iii) Any payment received by the Indenture Trustee (A) pursuant to
Section 4.3 (a) as a result of payment by the Owner Trust of principal or
interest or both (as well as any interest on overdue principal and, to the
extent permitted by Applicable Law, on overdue interest) then due on all Notes
shall be distributed to the Noteholders and (B) pursuant to Section 4.3(b) as a
result of the payment by the Owner Trust of any amount in respect of
Supplemental Rent shall be distributed to the Persons entitled thereto;
provided, that the Owner Trust shall (to the extent of such payment made by it)
be subrogated to the rights of the Noteholders under this Section 3.1 to receive
the payment of Basic Rent or Supplemental Rent with respect to which its payment
under Sections 4.3(a) and (b) relates, and the payment of interest on account of
such Basic Rent or Supplemental Rent being overdue, to the extent provided in
and subject to the provisions of Section 4.3(a) and (b).
(c) Retention of Amounts by the Indenture Trustee. If at the time of
receipt by the Indenture Trustee of an installment of Basic Rent (whether or not
then overdue) or of payment of interest on any overdue installment of Basic
Rent, there shall have occurred and be continuing an Indenture Event of Default,
the Indenture Trustee shall retain such installment of Basic Rent or payment of
interest (to the extent not then required to be distributed pursuant to clause
"First" of Section 3.1(a)) as part of the Indenture Estate and shall not
distribute any such payment of Basic Rent or interest pursuant to clause
"Second" of Section 3.1(a) until such time as there shall not be continuing any
such Indenture Event of Default or until such time as the Indenture Trustee
shall have received written instructions from a Majority in Interest of
Noteholders to make such a distribution; provided that such amounts must be
returned to the Owner Trust within six months from the receipt thereof by the
Indenture Trustee unless (i) such Indenture Event of Default is declared and the
Indenture Trustee is diligently pursuing any dispossessary remedies available
under Section 4.2 or (ii) any other Indenture Event of Default shall have
occurred and be continuing.
Section 3.2 Payments Following Event of Loss or Other Early
Termination.
(a) Any payment received by the Indenture Trustee as a result of (x)
an Event of Loss (other than a Regulatory Event of Loss in respect of which the
Lessee shall, pursuant to Section 2.10(b), assume the obligations and
liabilities of the Owner Trust hereunder, in which event only clauses "First"
and "Fourth" below shall be applicable); (y) an early termination of the Lease
pursuant to Section 13 thereof (other than a termination in respect of which the
Lessee shall, pursuant to Section 2.10(b), assume the obligations and
17
22
liabilities of the Owner Trust hereunder, in which event only clauses "First"
and "Fourth" below shall be applicable) or (z) any early termination of the
Lease pursuant to Section 14 thereof, shall be distributed on the applicable
Redemption Date to the extent of available funds, in the following order of
priority:
First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services under
this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
Second, so much of such payment remaining as shall be required to
pay in full the applicable redemption price (as described in Section
2.10(a) or 2.10(d)) (including, interest on overdue principal and, to the
extent permitted by Applicable Law, overdue interest) which shall be
distributed to the holders of such Notes;
Third, so much of such payments and amounts as shall be required to
pay the then existing or prior Noteholders all other amounts then payable
and unpaid to them as holders of the Notes which this Indenture by its
terms secures shall be distributed to such existing or prior holders of
Notes, ratably to each such holder, without priority of any such holder
over any other, in the proportion that the amount of such payments or
amounts to which each such holder is so entitled bears to the aggregate
amount of such payments and amounts to which all such holders are so
entitled; and
Fourth, the balance, if any, of such payment remaining shall be
distributed to the Owner Trust for distribution in accordance with the
Trust Agreement.
Section 3.3 Payments After Indenture Event of Default. All payments
received and all amounts held or realized by the Indenture Trustee after an
Indenture Event of Default shall have occurred and be continuing (including any
amounts realized by the Indenture Trustee from the exercise of any remedies
pursuant to Section 17 of the Lease or from the application of Section 4.2) and
after either (a) the Indenture Trustee has declared the Lease to be in default
pursuant to Section 17 thereof or (b) the Lessor Notes shall have been declared
or shall automatically have become due and payable, together with all payments
or amounts then held or thereafter received by the Indenture Trustee hereunder,
shall, so long as such declaration shall not have been rescinded, be distributed
forthwith by the Indenture Trustee in the following order of priority:
First, so much of such payments and amounts as shall be required to
reimburse the Indenture Trustee for any unpaid fees for its services under
this Indenture and any expense (including any legal fees and
disbursements) or loss incurred by it (to the extent incurred in
connection with its duties as the Indenture Trustee and to the extent
reimbursable and not previously reimbursed) shall be distributed to the
Indenture Trustee for application to itself;
18
23
Second, so much of such payment remaining as shall be required to
pay the aggregate unpaid principal amount of all Notes then outstanding
(plus any Make-Whole Premium due in respect thereof required to be paid in
the circumstances described in clause (i)(z) of Section 2.10(d)) and all
accrued but unpaid interest on such Notes to the date of such distribution
(including interest on overdue principal and, to the extent permitted by
Applicable Law, overdue interest) shall be distributed to the holders of
such Notes, in each case ratably without priority of any Noteholder over
any other, in the proportion that the aggregate unpaid principal amount of
all such Notes held by each such holder (plus any Make-Whole Premium due
in respect thereof required to be paid in the circumstances described in
clause (i)(z) of Section 2.10(d)) and accrued but unpaid interest thereon
to the date of scheduled distribution to the Noteholders bears to the
aggregate unpaid principal amount of all such Notes held by all such
holders (other than any Make-Whole Premium in respect thereof required to
be paid in the circumstances described in clause (i)(z) of Section
2.10(d)), plus accrued but unpaid interest thereon to the date of
scheduled distribution to the Noteholders;
Third, so much of such payments and amounts as shall be required to
pay the then existing or prior Noteholders all other amounts then payable
and unpaid to them as holders of the Notes which this Indenture by its
terms secures shall be distributed to such existing or prior holders of
Notes, ratably to each such holder, without priority of any such holder
over any other, in the proportion that the amount of such payments or
amounts to which each such holder is so entitled bears to the aggregate
amount of such payments and amounts to which all such holders are so
entitled; and
Fourth, the balance, if any, of such payments and amounts remaining
shall be distributed to the Owner Trust for distribution by it in
accordance with the terms of the Trust Agreement.
Section 3.4 Investment of Certain Payments Held by the Indenture
Trustee. Upon the written direction and at the risk and expense of the Owner
Trust, the Indenture Trustee shall invest and reinvest any moneys held by the
Indenture Trustee pursuant to Section 3.1(c), 3.5 or 3.6 in such Permitted
Investments as may be specified in such direction. The proceeds received upon
the sale or at maturity of any Permitted Investment and any interest received on
such Permitted Investment and any payment in respect of a deficiency
contemplated by the following sentence shall be held as part of the Indenture
Estate and applied by the Indenture Trustee in the same manner as the moneys
used to make such Permitted Investment, and any Permitted Investment may be sold
(without regard to maturity date) by the Indenture Trustee whenever necessary to
make any payment or distribution required by this Section 3. If the proceeds
received upon the sale or at maturity of any Permitted Investment (including
interest received on such Permitted Investment) shall be less than the cost
thereof (including accrued interest), the Owner Trust will pay or cause to be
paid to the Indenture Trustee an amount equal to such deficiency.
Section 3.5 Application of Certain Other Payments. Except as
otherwise provided in Section 3.1(b) or 3.1(c), any payment received by the
Indenture Trustee for which
19
24
provision as to the application thereof is made in an Operative Document, but
not elsewhere in this Indenture, shall, unless an Indenture Event of Default
shall have occurred and be continuing, be applied forthwith to the purpose for
which such payment was made in accordance with the terms of such Operative
Document. If at the time of the receipt by the Indenture Trustee of any payment
referred to in the preceding sentence, there shall have occurred and be
continuing an Indenture Event of Default, the Indenture Trustee shall hold such
payment as part of the Indenture Estate, but the Indenture Trustee shall, except
as otherwise provided in Section 3.1(b) or 3.1(c), cease so to hold such payment
and shall apply such payment to the purpose for which it was made in accordance
with the terms of such Operative Document if and whenever there is no longer
continuing any Indenture Event of Default; provided, however, that any such
payment received by the Indenture Trustee which is payable to the Lessee shall
not be so held by the Indenture Trustee unless a Lease Event of Default shall
have occurred and be continuing.
Section 3.6 Other Payments. Except as otherwise provided in Section
3.5:
(a) any payment received by the Indenture Trustee for which no
provision as to the application thereof is made in the Participation
Agreement, the Lease, the Depositary Agreement or elsewhere in this
Section 3; and
(b) all payments received and amounts realized by the Indenture
Trustee with respect to the Indenture Estate (including, without
limitation, all amounts realized after the termination of the Lease), to
the extent received or realized at any time after payment in full of the
principal of and, premium, if any, and interest on all Notes then
outstanding and all other amounts due the Indenture Trustee or the
Noteholders, as well as any other amounts remaining as part of the
Indenture Estate after such payment in full of the principal of, premium,
if any, and interest on all Notes outstanding;
shall be distributed forthwith by the Indenture Trustee in the order of priority
set forth in Section 3.3 (omitting clause "Second" thereof).
Section 3.7 Excepted Payments. Notwithstanding any other provision
of this Indenture including this Section 3 or any provision of any of the
Operative Documents to the contrary, any Excepted Payments received or held by
the Indenture Trustee at any time shall promptly be paid or distributed by the
Indenture Trustee to the Person or Persons entitled thereto.
Section 3.8 Distributions to the Owner Trust. Unless otherwise
directed in writing by the Owner Trust, all amounts from time to time
distributable by the Indenture Trustee to the Owner Trust in accordance with the
provisions hereof shall be paid by the Indenture Trustee to the Owner
Participant in immediately available funds to the Owner Participant's Account.
Any such distribution to the Owner Trust shall be final thirty (30) days after
the same is made, absent manifest error, and neither the Indenture Trustee nor
any Noteholder shall, absent manifest error, attempt to recover any such
distribution for any reason, but nothing contained in this sentence shall be
construed to limit the right of the Indenture Trustee or any such Noteholder to
make any claim it may have against the Owner Participant or
20
25
the Owner Trust or the Indenture Trustee or to pursue any such claim in such
court as the Indenture Trustee or any such holder shall deem appropriate. Any
amounts payable to the Trust Company in its individual capacity or to the
Trustee pursuant to the Trust Agreement, shall be paid directly to the Trustee.
Section 3.9 Payments Under Assigned Documents. Notwithstanding
anything to the contrary contained in this Indenture, until the discharge and
satisfaction of the Lien of this Indenture, all payments due or to become due
under any Assigned Document to the Owner Trust (except so much of such payments
as constitute Excepted Payments) shall be made directly to the Indenture
Trustee's Account and the Owner Trust shall give all notices as shall be
required under the Assigned Documents to direct payment of all such amounts to
the Indenture Trustee hereunder. The Owner Trust agrees that if it should
receive any such payments directed to be made to the Indenture Trustee or any
proceeds for or with respect to the Indenture Estate or as the result of the
sale or other disposition thereof or otherwise constituting a part of the
Indenture Estate to which the Owner Trust is not entitled hereunder, it will
promptly forward such payments to the Indenture Trustee or in accordance with
the Indenture Trustee's instructions. The Indenture Trustee agrees to apply
payments from time to time received by it (from the Lessee, the Owner Trust or
otherwise) with respect to the Lease, any other Assigned Document or the
Undivided Interest in the manner provided in Section 2.7 and this Section 3.
Section 3.10 Disbursement of Amounts Received by the Indenture
Trustee. Subject to the last sentence of this Section 3.10 and Section 3.2,
amounts to be distributed by the Indenture Trustee pursuant to this Section 3
shall be distributed on the date such amounts are actually received by the
Indenture Trustee. Notwithstanding anything to the contrary contained in this
Section 3, in the event the Indenture Trustee shall be required or directed to
make a payment under this Section 3 on the same date on which such payment is
received, any amounts received by the Indenture Trustee after 2:00 p.m., New
York City time, or on a day other than a Business Day, may be distributed on the
next succeeding Business Day, and if such payment is to be made by wire
transfer, any amounts received by the Indenture Trustee after 10:00 a.m., New
York City time, may be distributed on the next succeeding Business Day.
SECTION 4
DEFAULTS; REMEDIES OF INDENTURE TRUSTEE
Section 4.1 Occurrence of Indenture Event of Default. Subject to
Section 4.3, the term "Indenture Event of Default," wherever used herein, shall
mean any of the following events (whatever the reason for such Indenture Event
of Default and whether it shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) any Lease Event of Default (other than the failure of the Lessee
to pay any amount which shall constitute an Excepted Payment and other
than a Lease Event
21
26
of Default in consequence of the Lessee's failure to maintain the
insurance required by Section 11 of the Lease if, and so long as, (i) such
Lease Event of Default is waived by the Owner Trust and the Owner
Participant and (ii) the insurance maintained by the Lessee still
constitutes Prudent Industry Practice); or
(b) the Owner Trust shall fail (other than as a result of a Lease
Event of Default) to make any payment in respect of the principal of, or
premium, if any, or interest on, the Notes within five (5) Business Days
after the same shall have become due; or
(c) the Owner Trust shall fail to perform or observe any material
covenant, obligation or agreement to be performed or observed by it under
this Indenture (other than any covenant, obligation or agreement contained
in clause (b) of this Section 4.1), the Owner Trust shall fail to perform
or observe any material covenant, obligation or agreement to be performed
by it under the Mortgage or Section 7 of the Participation Agreement, the
Owner Participant shall fail to perform or observe any material covenant,
obligation or agreement to be performed by it under Section 8 of the
Participation Agreement (other than Section 8.6 thereof), or the guarantor
under an Owner Participant Parent Guaranty shall fail to perform or
observe any material covenant, obligation or agreement to be performed by
it under such Owner Participant Parent Guaranty in each case, in any
material respect, which shall continue unremedied for 30 days after
receipt by such party of written notice thereof; provided, however, that
if such condition cannot be remedied within such 30-day period, then the
period within which to remedy such condition shall be extended up to 180
days, so long as such party diligently pursues such remedy and such
condition is reasonably capable of being remedied within such extended
period; or
(d) any material representation or warranty made by the Owner Trust
in the Mortgage or Section 3.2 of the Participation Agreement or in the
certificate delivered by the Owner Trust at the Closing pursuant to
Section 4.5 of the Participation Agreement or any material representation
or warranty made by the Owner Participant in Section 3.3 of the
Participation Agreement or the certificate delivered by the Owner
Participant at the Closing pursuant to Section 4.5 of the Participation
Agreement or any material representation or warranty made by the guarantor
under an Owner Participant Parent Guaranty, shall prove to have been
incorrect in any material respect when made and continues to be material
and unremedied for a period of 30 days after receipt by such party of
written notice thereof; provided, however, that if such condition cannot
be remedied within such 30-day period, then the period within which to
remedy such condition shall be extended up to an additional 90 days, so
long as such party diligently pursues such remedy and such condition is
reasonably capable of being remedied within such extended period; or
(e) the Owner Participant or the Owner Trust shall (i) commence a
voluntary case or other proceeding seeking relief under Title 11 of the
Bankruptcy Code or liquidation, reorganization or other relief with
respect to itself or its debts under any
22
27
bankruptcy, insolvency or other similar law now or hereafter in effect, or
apply for or consent to the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or (ii) consent to, or fail to controvert in a
timely manner, any such relief or the appointment of or taking possession
by any such official in any voluntary case or other proceeding commenced
against it, or (iii) file an answer admitting the material allegations of
a petition filed against it in any such proceeding; or
(f) an involuntary case or other proceeding shall be commenced
against the Owner Participant or the Owner Trust, seeking (i) liquidation,
reorganization or other relief with respect to it or its debts under Title
11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar
law now or hereafter in effect, or (ii) the appointment of a trustee,
receiver, liquidator, custodian or other similar official with respect to
it or any substantial part of its property or (iii) the winding-up or
liquidation of such Person; and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days.
Section 4.2 Remedies of the Indenture Trustee.
(a) In the event that an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee in its discretion may, or upon
receipt of written instructions from a Majority in Interest of Noteholders
shall, declare, by written notice to the Owner Trust and the Owner Participant,
the unpaid principal amount of all Notes, with accrued interest and premium, if
any, thereon, to be immediately due and payable, upon which declaration such
principal amount and such accrued interest and premium, if any, shall
immediately become due and payable (except in the case of an Indenture Event of
Default under Section 4.1(e) or (f), such principal and interest shall
automatically become due and payable immediately without any such declaration or
notice) without further act or notice of any kind.
(b) If an Indenture Event of Default shall have occurred and be
continuing, then and in every such case, the Indenture Trustee, as assignee
under the Lease or hereunder or otherwise, may, and where required pursuant to
the provisions of Section 5 shall, upon written notice to the Owner Trust,
exercise any or all of the rights and powers and pursue any or all of the
remedies pursuant to this Section 4 and, in the event such Indenture Event of
Default shall be a Lease Event of Default, any and all of the remedies provided
pursuant to this Section 4 and Section 17 of the Lease and may take possession
of all or any part of the Indenture Estate and may exclude therefrom the Owner
Participant, the Owner Trust and, in the event such Indenture Event of Default
shall be a Lease Event of Default, the Lessee and all persons claiming under
them, and may exercise all remedies available to a secured party under the
Uniform Commercial Code or any other Applicable Law. The Indenture Trustee may
proceed to enforce the rights of the Indenture Trustee and of the Noteholders by
directing payment to it of all moneys payable under any agreement or undertaking
constituting a part of the Indenture Estate, by proceedings in any court of
competent jurisdiction to recover damages for the breach hereof or for the
appointment of a receiver or for sale of all or any part of the Undivided
Interest or for
23
28
foreclosure of the Undivided Interest, together with the Owner Trust's interest
in the Assigned Documents, and by any other action, suit, remedy or proceeding
authorized or permitted by this Indenture, at law or in equity, whether for the
specific performance of any agreement contained herein, or for an injunction
against the violation of any of the terms hereof, or in aid of the exercise of
any power granted hereby or by law, and in addition may foreclose upon, sell,
assign, transfer and deliver, from time to time to the extent permitted by
Applicable Law, all or any part of the Indenture Estate or any interest therein,
at any private sale or public auction with or without demand, advertisement or
notice (except as herein required or as may be required by law) of the date,
time and place of sale and any adjournment thereof, for cash or credit or other
property, for immediate or future delivery and for such price or prices and on
such terms as the Indenture Trustee in its unfettered discretion, may determine,
or as may be required by law, so long as the Owner Participant and the Owner
Trust are afforded a commercially reasonable opportunity to bid for all or such
part of the Indenture Estate in connection therewith unless Section 4.6 shall
otherwise be applicable; provided that 20 days shall be deemed to be a
commercially reasonable opportunity to bid for purposes of this Section 4.2(b).
The Indenture Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Indenture Trustee and of the Noteholders asserted or upheld in any bankruptcy,
receivership or other judicial proceedings.
(c) All rights of action and rights to assert claims under this
Indenture or under any of the Notes may be enforced by the Indenture Trustee
without the possession of the Notes at any trial or other proceedings instituted
by the Indenture Trustee, and any such trial or other proceedings shall be
brought in its own name as trustee of an express trust, and any recovery or
judgment shall be for the ratable benefit of the Noteholders as herein provided.
In any proceedings brought by the Indenture Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Indenture Trustee shall be a party), the Indenture Trustee shall be held to
represent all the Noteholders, and it shall not be necessary to make any such
Persons parties to such proceedings.
(d) Anything herein to the contrary notwithstanding, neither the
Indenture Trustee nor any Noteholder shall at any time, including at any time
when an Indenture Event of Default shall have occurred and be continuing and
there shall have occurred and be continuing a Lease Event of Default, be
entitled to exercise any remedy under or in respect of this Indenture which
could or would divest the Owner Trust of title to, or its ownership interest in,
any portion of the Indenture Estate unless, in the case of an Indenture Event of
Default as a consequence of a Lease Event of Default under Section 16 of the
Lease, the Indenture Trustee shall have, to the extent it is then entitled to do
so hereunder and is not then stayed or otherwise prevented from doing so by
operation of law, commenced the exercise of one or more remedies under the Lease
intending to dispossess the Lessee of the Undivided Interest and is using good
faith efforts in the exercise of such remedies (and not merely asserting a right
or claim to do so); provided that if the Indenture Trustee is then stayed or
otherwise prevented by operation of law from exercising such remedies, the
Indenture Trustee will not divest the Owner Trust of title to any portion of the
Indenture Estate until the earlier of (a) the expiration of the 180-day period
following the commencement of such stay or other prevention or (b) the date of
repossession of the Undivided Interest under the Lease.
24
29
(e) Anything herein to the contrary notwithstanding, in the case of
an Indenture Event of Default as a consequence of a Lease Event of Default under
Section 16(a) of the Lease with respect to the Equity Portion of Basic Rent
only, the Indenture Trustee shall not, so long as no other Indenture Event of
Default shall have occurred and be continuing, be entitled to exercise remedies
under this Indenture for a period of 180 days unless the Owner Trust or the
Owner Participant consents to the declaration of a Lease Event of Default by the
Indenture Trustee.
(f) Any provisions of the Lease or this Indenture to the contrary
notwithstanding, if the Lessee shall fail to pay any Excepted Payment to any
Person entitled thereto as and when due, such Person shall have the right at all
times, to the exclusion of the Indenture Trustee, to demand, collect, ▇▇▇ for,
enforce performance of obligations relating to, or otherwise obtain all amounts
due in respect of such Excepted Payment or to declare a Lease Event of Default
under Section 17 of the Lease solely to enforce such obligations in respect of
any Excepted Payments (provided that any such declaration shall not be deemed to
constitute an Indenture Event of Default hereunder without the consent of the
Indenture Trustee).
Section 4.3 Right to Cure Certain Lease Events of Default.
(a) If the Lessee shall fail to make any payment of Basic Rent due
on any Rent Payment Date when the same shall have become due, and if such
failure of the Lessee to make such payment of Basic Rent shall not constitute
the fourth consecutive such failure or the eighth cumulative failure, then the
Owner Trust may (but need not) pay to the Indenture Trustee, at any time prior
to the expiration of 10 Business Days after the Owner Trust and the Owner
Participant shall have received notice from the Indenture Trustee of the failure
of the Lessee to make such payment of Basic Rent, an amount equal to the
principal of, premium, if any, and interest on the Notes, then due (otherwise
than by declaration of acceleration) on such Rent Payment Date, together with
any interest due thereon on account of the delayed payment thereof, and such
payment by the Owner Trust shall be deemed (for purposes of this Indenture) to
have cured any Indenture Event of Default which arose or would have arisen from
such failure of the Lessee.
(b) If the Lessee shall fail to make any payment of Supplemental
Rent when the same shall become due or otherwise fail to perform any obligation
under the Lease or any other Operative Document, then the Owner Trust may (but
need not) make such payment (to the extent of the amount of principal of, and
premium, if any, and interest on, the Notes then due (otherwise than by
declaration of acceleration)) on the date such Supplemental Rent was payable,
together with any interest due thereon on account of the delayed payment
thereof, or perform such obligation at any time prior to the expiration of 10
Business Days after the Owner Trust or the Owner Participant shall have received
notice of the occurrence of such failure, and such payment or performance by the
Owner Trust shall be deemed to have cured any Indenture Event of Default which
arose or would have arisen from such failure of the Lessee.
(c) (i) The Owner Trust, upon exercising its rights under paragraph
(a) or (b) of this Section 4.3 to cure the Lessee's failure to pay Basic Rent or
Supplemental Rent or to
25
30
perform any other obligation under the Lease or any other Operative Document,
shall not obtain any Lien on any part of the Indenture Estate on account of such
payment or performance nor, except as expressly provided in the next sentence,
pursue any claims against the Lessee or any other party, for the repayment
thereof if such claims would impair the prior right and security interest of the
Indenture Trustee in and to the Indenture Estate. Upon such payment or
performance by the Owner Trust, the Owner Trust shall (to the extent of such
payment made by it and the costs and expenses incurred in connection with such
payments and performance thereof together with interest thereon and so long as
no Indenture Payment Default, Indenture Bankruptcy Default or Indenture Event of
Default hereunder shall have occurred and be continuing) be subrogated to the
rights of the Indenture Trustee and the Noteholders to receive the payment of
Basic Rent or Supplemental Rent, as the case may be, with respect to which the
Owner Trust made such payment and interest on account of such Basic Rent payment
or Supplemental Rent payment being overdue in the manner set forth in the next
two sentences.
(ii) If the Indenture Trustee shall thereafter receive such payment
of Basic Rent, Supplemental Rent or such interest, the Indenture Trustee shall,
notwithstanding the requirements of Section 3.1, forthwith, remit such payment
of Basic Rent or Supplemental Rent, as the case may be (to the extent of the
payment made by the Owner Trust pursuant to this Section 4.3), and such interest
to the Owner Trust in reimbursement for the funds so advanced by it, provided
that if (A) any Indenture Payment Default, Indenture Bankruptcy Default or
Indenture Event of Default hereunder shall have occurred and be continuing or
(B) any payment of principal, interest, or premium, if any, on any Note then
shall be overdue, such payment shall not be remitted to the Owner Trust but
shall be held by the Indenture Trustee as security for the obligations secured
hereby and distributed in accordance with Section 3.1.
(iii) The Owner Trust shall not attempt to recover any amount paid
by it on behalf of the Lessee pursuant to this Section 4.3 except by demanding
of the Lessee payment of such amount or by commencing an action against the
Lessee for the payment of such amount, and except where an Indenture Event of
Default (other than a Lease Event of Default) has occurred and is continuing,
the Owner Trust shall be entitled to receive the amount of such payment and the
costs and expenses incurred in connection with such payments and performance
thereof together with interest thereon from the Lessee (but neither the Owner
Trust nor the Owner Participant shall have any right to collect such amounts by
exercise of any of the remedies under Section 17 of the Lease) or, if paid by
the Lessee to the Indenture Trustee, from the Indenture Trustee to the extent of
funds actually received by the Indenture Trustee.
(d) Until the expiration of the period during which the Owner Trust
or the Owner Participant shall be entitled to exercise rights under paragraph
(a) or (b) of this Section 4.3 with respect to any failure by the Lessee
referred to therein, neither the Indenture Trustee nor any Noteholder shall take
or commence any action it would otherwise be entitled to take or commence as a
result of such failure by the Lessee, whether under this Section 4 or Section 17
of the Lease or otherwise.
(e) Each Noteholder agrees, by acceptance thereof, that if (i)(x) an
Indenture Event of Default, which also constitutes a Lease Event of Default,
shall have occurred and be
26
31
continuing for a period of at least 90 days without the Notes having been
accelerated or the Indenture Trustee having exercised any remedy under the Lease
intended to dispossess the Lessee, (y) the Notes have been accelerated pursuant
to Section 4.2(a) and such acceleration has not theretofore been rescinded, or
(z) an Enforcement Notice giving notice of the intent of the Indenture Trustee
to foreclose on the Undivided Interest or otherwise dispossess the Lessee of the
Undivided Interest has been given pursuant to Section 5.1 within the previous 30
days, (ii) no Indenture Event of Default of the nature described in any of
clauses (b) through (f) of Section 4.1 hereof shall have occurred and be
continuing and (iii) the Owner Trust shall give written notice to the Indenture
Trustee of the Owner Trust's intention to purchase all of the Notes in
accordance with this paragraph, accompanied by assurances reasonably
satisfactory to the Indenture Trustee of the Owner Trust's ability to purchase
the Notes, then, upon receipt within 10 Business Days after such notice from the
Owner Trust of an amount equal to the sum of (x) the aggregate unpaid principal
amount of any unpaid Notes then held by such Noteholder, together with accrued
but unpaid interest thereon to the date of such receipt (as well as any interest
on overdue principal and, to the extent permitted by Applicable Law, overdue
interest) plus the aggregate amount, if any, of all sums which, if Section 3.3
where then applicable, such Noteholder would be entitled to be paid before any
payments were to be made to the Owner Trust, but excluding any premium, such
Noteholder will forthwith sell, assign, transfer and convey to the Owner Trust
(without recourse or warranty of any kind other than of title to the Notes so
conveyed) all of the right, title and interest of such Noteholder in and to the
Indenture Estate, this Indenture, all Notes held by such Noteholder and the
Assigned Documents, and the Owner Trust shall thereupon assume all such
Noteholder's rights and obligations in such documents; provided, that no such
holder shall be required to so convey unless (1) the Owner Trust shall have
simultaneously tendered payment on all other Notes issued by the Owner Trust at
the time outstanding pursuant to this paragraph and (2) such conveyance is not
in violation of any Applicable Law. All charges and expenses required to be paid
in connection with the issuance of any new Note or Notes in connection with this
paragraph shall be borne by the Owner Trust.
Section 4.4 Rescission of Acceleration. If at any time after the
outstanding principal amount of the Notes shall have become due and payable by
acceleration pursuant to Section 4.2, (a) all amounts of principal, premium, if
any, and interest which are then due and payable in respect of all the Notes
otherwise than pursuant to Section 4.2 shall have been paid in full, together
with interest on all such overdue principal and (to the extent permitted by
Applicable Law) overdue interest at the rate or rates specified in the Notes,
and an amount sufficient to cover all costs and expenses of collection incurred
by or on behalf of the holders of the Notes (including, without limitation,
counsel fees and expenses and all expenses and reasonable compensation of the
Indenture Trustee) and (b) every other Indenture Event of Default shall have
been remedied, then a Majority in Interest of Noteholders may, by written notice
or notices to the Owner Trust, the Indenture Trustee and the Lessee, rescind and
annul such acceleration and any related declaration of default under the Lease
and their respective consequences, but no such rescission and annulment shall
extend to or affect any subsequent Indenture Event of Default or impair any
right consequent thereon, and no such rescission and annulment shall require any
Noteholder to repay any principal or interest actually paid as a result of such
acceleration.
27
32
Section 4.5 Return of Indenture Estate, Etc.
(a) If at any time the Indenture Trustee has the right to take
possession of the Indenture Estate pursuant to Section 4.2, at the request of
the Indenture Trustee, the Owner Trust promptly shall (i) execute and deliver to
the Indenture Trustee such instruments of title and other documents and (ii)
make all such demands and give all such notices as are permitted by the terms of
the Lease to be made or given by the Owner Trust upon the occurrence and
continuance of a Lease Event of Default, in each case as the Indenture Trustee
may deem necessary or advisable to enable the Indenture Trustee or an agent or
representative designated by the Indenture Trustee, at such time or times and
place or places as the Indenture Trustee may specify, to obtain possession of
all or any part of the Indenture Estate the possession of which the Indenture
Trustee shall at the time be entitled to hereunder. If the Owner Trust shall for
any reason fail to execute and deliver such instruments and documents after such
request by the Indenture Trustee, the Indenture Trustee may (x) obtain a
judgment conferring on the Indenture Trustee the right to immediate possession
and requiring the Owner Trust to execute and deliver such instruments and
documents to the Indenture Trustee, to the entry of which judgment the Owner
Trust hereby specifically consents, and (y) pursue all or any part of the
Indenture Estate wherever it may be found and enter any of the premises wherever
all or part of the Indenture Estate may be or is supposed to be and search for
all or part of the Indenture Estate and take possession of and remove all or
part of the Indenture Estate.
(b) Upon every such taking of possession, the Indenture Trustee may,
from time to time, as a charge against proceeds of the Indenture Estate, make
all such expenditures with respect to the Indenture Estate as it may deem
proper. In each such case, the Indenture Trustee shall have the right to deal
with the Indenture Estate and to carry on the business and exercise all rights
and powers of the Owner Trust relating to the Indenture Estate, as the Indenture
Trustee shall deem best, and, the Indenture Trustee shall be entitled to collect
and receive all rents (including Basic Rent and Supplemental Rent), revenues,
issues, income, products and profits of the Indenture Estate and every part
thereof (without prejudice to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive cash held by, or required to
be deposited with, the Indenture Trustee hereunder) and to apply the same to the
management of or otherwise dealing with the Indenture Estate and of conducting
the business thereof, and of all expenditures with respect to the Indenture
Estate and the making of all payments which the Indenture Trustee may be
required or may elect to make, if any, for taxes, assessments, insurance or
other proper charges upon the Indenture Estate or any part thereof (including
the employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Owner Trust and the Lessee
relating to the Indenture Estate and the Operative Documents), or under any
provision of, this Indenture, as well as just and reasonable compensation for
the services of the Indenture Trustee and of all Persons properly engaged and
employed by the Indenture Trustee.
Section 4.6 Power of Sale and Other Remedies.
(a) In addition to all other remedies provided for herein, if an
Indenture Event of Default shall have occurred and be continuing, the Indenture
Trustee shall have the
28
33
right to exercise the statutory power of sale and sell the Indenture Estate or
any part of the Indenture Estate at public sale or sales, in order to pay the
Secured Indenture Indebtedness, and all impositions, if any, with accrued
interest thereon, and all expenses of the sale and of all proceedings in
connection therewith, including reasonable attorney's fees, if incurred. At any
such public sale, the Indenture Trustee may execute and deliver to the purchaser
a conveyance of the Indenture Estate or any part of the Indenture Estate, and to
this end, the Owner Trust hereby constitutes and appoints the Indenture Trustee
the agent and attorney in fact of the Owner Trust to make such sale and
conveyance, and thereby to divest the Owner Trust of all right, title or equity
that the Owner Trust may have in and to the Indenture Estate and to vest the
same in the purchaser or purchasers at such sale or sales, and all the acts and
doings of said agent and attorney in fact are hereby ratified and confirmed and
any recitals in said conveyance or conveyances as to facts essential to a valid
sale shall be binding upon the Owner Trust. The aforesaid power of sale and
agency hereby granted are coupled with an interest and are irrevocable by death
or otherwise, are granted as cumulative of the other remedies provided hereby or
by law for collection of the Secured Indenture Indebtedness and shall not be
exhausted by one exercise thereof but may be exercised until full payment of the
Secured Indenture Indebtedness.
(b) Further, if an Indenture Event of Default shall have occurred
and be continuing, the Indenture Trustee may, in addition to and not in
abrogation of other rights and remedies provided in this Section, either with or
without entry or taking possession as herein provided or otherwise, proceed by a
suit or suits in law or in equity or by any other appropriate proceeding or
remedy (i) to enforce payment of the Notes or the performance of any term,
covenant, condition of agreement of this Indenture or any other right, and (ii)
to pursue any other remedy available to it, all as the Indenture Trustee shall
determine to be expedient for such purposes.
(c) Upon any foreclosure sale, the Indenture Trustee may bid for and
purchase the Indenture Estate and shall be entitled to apply all or any part of
the Secured Indenture Indebtedness as a credit to the purchase price. In the
event of a foreclosure sale of the Indenture Estate, the proceeds of said sale
shall be applied as provided in Section 3.3. In the event of any such
foreclosure sale by the Indenture Trustee, the Owner Trust shall be deemed a
tenant holding over and shall forthwith deliver possession to the purchaser or
purchasers at such sale or be summarily dispossessed according to provisions of
law applicable to tenants holding over.
(d) The Indenture Trustee, at the Indenture Trustee's option, is
authorized to foreclose this Indenture subject to the rights of any tenants of
the Indenture Estate, and the failure to make any such tenants parties to any
such foreclosure proceedings and to foreclose their rights will not be, nor be
asserted by the Owner Trust to be, a defense to any proceedings instituted by
the Indenture Trustee to collect the Secured Indenture Indebtedness.
(e) In addition, as part of the consideration for the Secured
Indenture Indebtedness, the Owner Trust has absolutely and unconditionally
assigned and transferred to the Indenture Trustee the Revenues, including those
now due, past due or to become due by
29
34
virtue of any lease or other agreement for the occupancy or use of all or any
part of the Indenture Estate. The Owner Trust hereby authorizes the Indenture
Trustee or the Indenture Trustee's agents to collect the Revenues and hereby
directs such tenants of the Indenture Estate to pay the Revenues to the
Indenture Trustee or the Indenture Trustee's agents; provided, however, that
prior to written notice given by the Indenture Trustee to the Owner Trust of any
Indenture Event of Default by the Owner Trust, but subject to the other
provisions of this Indenture, the Owner Trust shall collect and receive the
Revenues as trustee for the benefit of the Indenture Trustee and the Owner
Trust, to apply the Revenues so collected to the Secured Indenture Indebtedness
with the balance, so long as no Indenture Event of Default has occurred, to the
account of the Owner Trust. The Owner Trust agrees that each tenant of the
Indenture Estate shall pay the Revenues to the Indenture Trustee or the
Indenture Trustee's agents on the Indenture Trustee's written demand therefor
without any liability on the part of said tenant to inquire further as to the
existence of an Indenture Event of Default.
Section 4.7 Appointment of Receiver. If the outstanding principal
amount of the Notes shall have been declared due and payable pursuant to Section
4.2, as a matter of right, the Indenture Trustee shall be entitled to the
appointment of a receiver (who may be the Indenture Trustee or any successor or
nominee thereof) for all or any part of the Indenture Estate, whether such
receivership be incidental to a proposed sale of the Indenture Estate or the
taking of possession thereof or otherwise, and the Owner Trust hereby consents
to the appointment of such a receiver and will not oppose any such appointment.
Any receiver appointed for all or any part of the Indenture Estate shall be
entitled to exercise all the rights and powers with respect to the Indenture
Estate to the extent instructed to do so by the Indenture Trustee.
Section 4.8 Remedies Cumulative. Each and every right, power and
remedy herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee and the exercise or the beginning of the exercise of any right, power or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy. No delay or omission
by the Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Participant,
the Owner Trust or the Lessee or to be an acquiescence therein.
Section 4.9 Waiver of Various Rights by the Owner Trust. The Owner
Trust hereby waives and agrees, to the extent permitted by Applicable Law, that
it will never seek or derive any benefit or advantage from any of the following,
whether now existing or hereafter in effect, in connection with any proceeding
under or in respect of this Indenture:
(a) any stay, extension, moratorium or other similar law;
30
35
(b) any law providing for the valuation of or appraisal of any
portion of the Indenture Estate in connection with a sale thereof; or
(c) any right to have any portion of the Indenture Estate or other
security for the Notes marshaled.
The Owner Trust covenants not to hinder, delay or impede the
exercise of any right or remedy under or in respect of this Indenture except as
permitted by Section 4.3, and agrees, to the extent permitted by Applicable Law,
to suffer and permit its exercise as though no laws or rights of the character
listed above were in effect.
Section 4.10 Discontinuance of Proceedings. In case the Indenture
Trustee or any Noteholder shall have proceeded to enforce any right, power or
remedy under this Indenture by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Indenture Trustee or the Noteholder, then
and in every such case the Owner Trust, the Indenture Trustee and the Lessee
shall be restored to their former positions and rights hereunder with respect to
the Indenture Estate, and all rights, remedies and powers of the Indenture
Trustee or the Noteholder shall continue as if no such proceedings had taken
place.
Section 4.11 No Action Contrary to the Lessee's Rights Under the
Lease. Notwithstanding any other provision of any of the Operative Documents, so
long as no Lease Event of Default shall have occurred and be then continuing and
the Lease shall not have been declared (or deemed to have been declared) in
default, the Indenture Trustee shall not take or cause to be taken any action
contrary to the Lessee's rights under the Lease and the Site Sublease, including
its rights, as between the Lessee and the Owner Trust and the Owner Participant
and any Person claiming by or through the Owner Trust or the Owner Participant,
to quiet enjoyment of the use, operation and possession of the Undivided
Interest by the Lessee of the Facility, the Undivided Interest and the Ground
Interest.
Section 4.12 Right of the Indenture Trustee to Perform Covenants,
Etc. If the Owner Trust shall fail to make any payment or perform any act
required to be made or performed by it hereunder or under the Lease, the Site
Lease, the Site Sublease or the Participation Agreement, or if the Owner Trust
shall fail to release any Lien affecting the Indenture Estate which it is
required to release by the terms of this Indenture or the Participation
Agreement or the Trust Agreement, the Indenture Trustee, without notice to or
demand upon the Owner Trust and without waiving or releasing any obligation or
defaults may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of the
Indenture Estate and may take all such action with respect thereto (including
entering upon the Facility Site or any part thereof, to the extent, of the
Undivided Interest for such purpose) as, in the Indenture Trustee's opinion, may
be necessary or appropriate therefor. No such entry shall be deemed an eviction.
All sums so paid by the Indenture Trustee and all costs and expenses (including,
without limitation, legal fees and expenses) so incurred, together with interest
thereon from the date of payment or incurrence, shall constitute additional
indebtedness secured by this Indenture and shall be paid
31
36
from the Indenture Estate to the Indenture Trustee on demand. The Indenture
Trustee shall not be liable for any damages resulting from any such payment or
action unless such damages shall be a consequence of willful misconduct or gross
negligence on the part of the Indenture Trustee.
Section 4.13 Further Assurances. The Owner Trust covenants and
agrees from time to time to do all such acts and execute all such instruments of
further assurance as shall be reasonably requested by the Indenture Trustee for
the purpose of fully carrying out and effectuating this Indenture and the intent
hereof.
Section 4.14 Waiver of Past Defaults. Any past Indenture Event of
Default and its consequences may be waived by the Indenture Trustee, except an
Indenture Event of Default (a) in respect of the payment of the principal of,
premium, if any, and or interest on any Note, subject to the provisions of
Section 5.1 and 8.1, or (b) in respect of a covenant or provision hereof which,
under Section 8.2, cannot be modified or amended without the consent of each
Noteholder. Upon any such waiver and subject to the terms of such waiver, such
Indenture Event of Default shall cease to exist, and any other Indenture Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Indenture Event of Default or impair any right consequent thereon.
SECTION 5
DUTIES OF INDENTURE TRUSTEE;
CERTAIN RIGHTS AND DUTIES OF OWNER TRUST
Section 5.1 Notice of Action Upon Indenture Event of Default. The
Indenture Trustee shall give prompt written notice to the Owner Trust and the
Owner Participant of any Indenture Event of Default with respect to which the
Indenture Trustee has Actual Knowledge and will give the Lessee and the Owner
Participant not less than 30 days' prior written notice of the date on or after
which the Indenture Trustee intends to exercise remedies under Section 4.2 (an
"Enforcement Notice"), which notice may be given contemporaneously with any
notice contemplated by Section 4.2(a) or 4.2(b).
Section 5.2 Actions upon Instructions Generally. Subject to the
terms of Sections 5.4, 5.5 and 5.6, upon written instructions at any time and
from time to time of a Majority in Interest of Noteholders, the Indenture
Trustee shall take such of the following actions as may be specified in such
instructions: (a) give such notice, direction or consent or exercise such right,
remedy or power or take such action hereunder or under any Assigned Document, or
in respect of any part of or all the Indenture Estate, as it shall be entitled
to take and as shall be specified in such instructions; (b) take such action
with respect to or to preserve or protect the Indenture Estate (including the
discharge of Liens) as it shall be entitled to take and as shall be specified in
such instructions; and (c) waive, consent to, approve (as satisfactory to it) or
disapprove all matters required by the terms of any Operative Documents to be
satisfactory to the Indenture Trustee, it being understood that without such
written instructions
32
37
the Indenture Trustee shall not waive, consent or approve any such matter as
satisfactory to it. The Indenture Trustee may, and upon written instructions
from a Majority in Interest of Noteholders the Indenture Trustee shall, execute
and file or cause to be executed and filed any instrument or document relating
to the security, title, Lien, security interest and assignment granted by the
Owner Trust herein as may be necessary to protect and preserve the security
title, Lien, security interest or assignment created by or pursuant to this
Indenture, to the extent otherwise entitled to do so and as shall be specified
in such instructions.
Section 5.3 Action Upon Payment of Notes or Termination of Lease.
Subject to the terms of Section 5.4, upon payment in full of the principal of
and interest on all Notes then outstanding and all other amounts then due all
Noteholders hereunder, and all other sums secured hereby or otherwise required
to be paid hereunder, under the Participation Agreement and under the Lease, the
Indenture Trustee shall execute and deliver to, or as directed in writing by,
the Owner Trust an appropriate instrument in due form for recording, releasing
the Indenture Estate from the Lien of this Indenture. Nothing in this Section
5.3 shall be deemed to expand the instances in which the Owner Trust is entitled
to prepay the Notes.
Section 5.4 Compensation of the Indenture Trustee; Indemnification.
(a) The Owner Trust will from time to time, on demand, pay to the
Indenture Trustee such compensation for its services hereunder as shall be
agreed to by the Owner Trust, the Lessee and the Indenture Trustee, or, in the
absence of agreement, reasonable compensation for such services (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Indenture Trustee agrees
that it shall have no right against the Noteholders or, except as provided in
Section 3 and Section 4.2 or this Section 5, the Indenture Estate, for any fee
as compensation for its services hereunder.
(b) The Indenture Trustee shall not be required to take any action
or refrain from taking any action under Section 4, 5.2 or 9.1 unless it and its
directors, officers, employees or agents shall have been indemnified in manner
and form satisfactory to the Indenture Trustee. The Indenture Trustee shall not
be required to take any action under Section 4 or Section 5.2, 5.3 or 9.1, nor
shall any other provision of this Indenture be deemed to impose a duty on the
Indenture Trustee to take any action, if it shall have been advised by counsel
(who shall not be an employee of the Indenture Trustee) that such action is
contrary to the terms hereof or is otherwise contrary to Applicable Law or
(unless it shall have been indemnified in manner and form satisfactory to the
Indenture Trustee) may result in personal liability to the Indenture Trustee.
Section 5.5 No Duties Except as Specified; No Action Except Under
Lease, Indenture or Instructions. The Indenture Trustee shall not have any duty
or obligation to and shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Indenture Estate or otherwise take or
refrain from taking any action under or in connection with this Indenture or the
other Assigned Documents except as expressly provided by the terms of this
Indenture or as expressly provided in written instructions from a Majority in
Interest of
33
38
Noteholders in accordance with Section 5.2; and no implied duties or obligations
shall be read into this Indenture against the Indenture Trustee.
Section 5.6 Certain Rights of the Owner Trust. Notwithstanding any
other provision of this Indenture:
(a) The Owner Trust shall at all times, to the exclusion of the
Indenture Trustee, (i) retain all rights to demand and receive payment of,
and to commence an action for payment of, Excepted Payments, but the Owner
Trust shall have no remedy or right with respect to any such payment
against the Indenture Estate nor any right to collect any such payment by
the exercise of any of the remedies under Section 17 of the Lease; (ii)
retain all rights with respect to insurance that Section 11 (Insurance) of
the Lease specifically confers upon the Owner Trust and to waive any
failure by the Lessee to maintain the insurance required by Section 11 of
the Lease so long as the insurance maintained by the Lessee still
constitutes Prudent Industry Practice; (iii) retain all rights to adjust
Basic Rent and Termination Value as provided in Section 3.6 (Adjustment of
Basic Rent and Termination Values) of the Lease or the Tax Indemnity
Agreement; provided, however, that after giving effect to any such
adjustment (x) the amount of Basic Rent (other than Deferrable Payments)
payable on each Rent Payment Date shall be at least equal to the aggregate
amount of all principal and accrued interest payable on such Rent Payment
Date on all Notes then outstanding and (y) Termination Value shall in no
event be less (when added to all other amounts required to be paid by the
Lessee under the Lease in respect of any early termination of the Lease)
than an amount sufficient, as of the date of payment, to pay in full the
principal of, and premium and interest on all Notes outstanding on and as
of such date of payment; and (iv) except in connection with the exercise
of remedies pursuant to the Lease, retain all rights to exercise the Owner
Trust's rights relating to the Appraisal Procedure and to confer and agree
with the Lessee on Fair Market Rental Value or any Renewal Term;
(b) The Owner Trust shall have the right, but not to the exclusion
of the Indenture Trustee, (i) to receive from the Lessee all notices,
certificates, opinions of counsel and other documents and all information
that the Lessee is permitted or required to give or furnish to the Owner
Trust pursuant to the Lease or any other Operative Document; (ii) to
inspect the Facility and the records relating thereto pursuant to Section
12 (Inspection) of the Lease; (iii) to provide such insurance as may be
permitted by Section 11 of the Lease; and (iv) to perform for the Lessee
as provided in Section 20 (Lessor's Right to Perform) of the Lease;
(c) So long as the Notes have not been accelerated pursuant to
Section 4.2(a) (or, if accelerated, such acceleration has theretofore been
rescinded) or the Indenture Trustee shall not have exercised any of its
rights pursuant to Section 4 to take possession of, foreclose, sell or
otherwise take control of all or any part of the Indenture Estate, the
Owner Trust shall retain the right, to the exclusion of the Indenture
Trustee, to exercise the rights of the Owner Trust under, and to determine
compliance by the Lessee with, the provisions of Sections 3.4 (Deferrable
Payments), 5 (Return of
34
39
Undivided Interest) in connection with the return of the Undivided
Interest on the Lease Expiration Date, 10 (Event of Loss) (other than
Section 10.2 thereof), 13 (Termination Option for Burdensome Events), 14
(Termination for Obsolescence) and 15 (Lease Renewal) of the Lease;
(d) Except as otherwise provided in this Section 5.6, so long as the
Notes have not been accelerated pursuant to Section 4.2(a) (or, if
accelerated, such acceleration has theretofore been rescinded) or the
Indenture Trustee shall not have exercised any of its rights pursuant to
Section 4 to take possession of, foreclose, sell or otherwise take control
of all or any part of the Indenture Estate, the Owner Trust shall have the
right, to be exercised jointly with the Indenture Trustee, (i) to exercise
the Owner Trust's rights with respect to the Lessee's use and operation,
modification or maintenance of the Facility, under Sections 7
(Maintenance; Replacement of Components), 8 (Modifications) and 19
(Sublease) of the Lease, and (ii) to exercise the rights of the Owner
Trust under Section 10.2 of the Lease; provided, however, that (A) the
Owner Trust shall have no right to receive any Basic Rent payment or other
payments by or on behalf of the Lessee other than Excepted Payments
payable to the Owner Trust or the Owner Participant, (B) no determination
by the Owner Trust or the Indenture Trustee that the Lessee is in
compliance with the provisions of any such Assigned Document shall be
binding upon or otherwise affect the rights hereunder of the Indenture
Trustee or any Noteholder on the one hand or the Owner Trust or the Owner
Participant on the other hand, and (C) the Owner Trust shall not have the
right to (i) declare any Lease Event of Default pursuant to Section 16 of
the Lease (except as provided in Section 4.2(f) in respect of a failure to
pay Excepted Payments) or (ii) exercise any remedies pursuant to Section
17 of the Lease; and
(e) Nothing in this Indenture shall give to, or create in, or
otherwise provide the benefit of to, the Indenture Trustee, any rights of
the Owner Participant under or pursuant to the Tax Indemnity Agreement or
any other Operative Document (including any Assigned Document), and
nothing in this Section 5.6 or elsewhere in this Indenture shall give to
the Owner Trust the right to exercise any rights specifically given to the
Indenture Trustee pursuant to any Operative Document (including any
Assigned Document); but nothing in clauses (a) through (d) above shall
deprive the Indenture Trustee of the exclusive right, so long as this
Indenture shall be in effect, to declare the Lease to be in default under
Section 16 thereof and thereafter to exercise the remedies provided
therein.
Section 5.7 Restrictions on Dealing with Indenture Estate. Except as
provided in the Operative Documents, but subject to the terms of this Indenture,
the Owner Trust shall not use, operate, store, lease, control, manage, sell,
dispose of or otherwise deal with the Undivided Interest, the Facility Site, any
part of the Facility Site or any other part of the Indenture Estate.
Section 5.8 Filing of Financing Statements and Continuation
Statements. Pursuant to Section 5.10 of the Participation Agreement, the Lessee
has covenanted to maintain
35
40
the priority of the Lien of this Indenture on the Indenture Estate. The
Indenture Trustee shall, at the request and expense of the Lessee, as provided
in the Participation Agreement, execute and deliver to the Lessee and Lessee
will file, if not already filed, such financing statements or other documents
and such continuation statements or other documents with respect to financing
statements or other documents previously filed relating to the Lien created by
this Indenture in the Indenture Estate as may be supplied to the Indenture
Trustee by the Lessee. At any time and from time to time, upon the request of
the Lessee or the Indenture Trustee, at the expense of the Lessee (and upon
receipt of the form of document so to be executed), the Owner Trust shall
promptly and duly execute and deliver any and all such further instruments and
documents as the Lessee or the Indenture Trustee may request in obtaining the
full benefits of the security interest and assignment created or intended to be
created hereby and of the rights and powers herein granted. Upon the reasonable
instructions (which instructions shall be accompanied by the form of document to
be filed) at any time and from time to time of the Lessee or the Indenture
Trustee, the Owner Trust shall execute and file any financing statement (and any
continuation statement with respect to any such financing statement), and any
other document relating to the security interest and assignment created by this
Indenture as may be specified in such instructions. In addition, the Indenture
Trustee and the Owner Trust will execute such continuation statements with
respect to financing statements and other documents relating to the Lien created
by this Indenture in the Indenture Estate as may be specified from time to time
in written instructions of any Noteholder (which instructions may, by their
terms, be operative only at a future date and which shall be accompanied by the
form of such continuation statement or other document so to be filed). Except as
otherwise herein expressly provided, neither the Indenture Trustee nor the Owner
Trust shall have responsibility for the protection, perfection or preservation
of the Lien created by this Indenture.
SECTION 6
INDENTURE TRUSTEE AND OWNER TRUST
Section 6.1 Acceptance of Trusts and Duties. The Indenture Trustee
accepts the trusts hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture, and agrees to receive and
disburse all moneys constituting part of the Indenture Estate in accordance with
the provisions hereof. If any Indenture Event of Default shall have occurred and
be continuing, the Indenture Trustee shall, subject to the provisions of Section
4 and 5, exercise such of the rights and remedies vested in it by this Indenture
and shall at all times use the same degree of care in their exercise as a
prudent person would exercise or use in the circumstances in the conduct of its
own affairs. The Indenture Trustee shall not be liable under any circumstances,
except (a) for its own negligence or willful misconduct, (b) for any inaccuracy
of any representation or warranty contained in (x) Section 3.4 of the
Participation Agreement, (y) the certificate delivered by the Indenture Trustee
at the Closing pursuant to Section 4.5 of the Participation Agreement or (z)
Section 6.3(b), or (c) for the performance of its obligations under Section 9 of
the Participation Agreement; and the Indenture Trustee shall not be liable for
any action or inaction of the Owner Trust; provided, however, that
36
41
(i) Prior to the occurrence of an Indenture Event of Default of
which a Responsible Officer of the Indenture Trustee shall have Actual
Knowledge, and after the curing of all such Indenture Events of Default
which may have occurred, the duties and obligations of the Indenture
Trustee shall be determined solely by the express provisions of the
Operative Documents, the Indenture Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in the Operative Documents, no implied covenants or obligations
shall be read into the Operative Documents against the Indenture Trustee
and, in the absence of bad faith on the part of the Indenture Trustee, the
Indenture Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any notes or
opinions furnished to the Indenture Trustee and conforming to requirements
of this Indenture;
(ii) The Indenture Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or other officers of the Indenture Trustee, unless it shall be
proven that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Indenture Trustee shall not be liable in its individual
capacity with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with this Indenture or at the direction
of the Majority in Interest of Noteholders, relating to the time, method
and place of conducting any proceeding or remedy available to the
Indenture Trustee, or exercising or omitting to exercise any trust or
power conferred upon the Indenture Trustee, under this Indenture;
(iv) The Indenture Trustee shall not be required to take notice or
be deemed to have notice or knowledge of any default, Lease Event of
Default, Lease Material Default or Indenture Event of Default (except for
defaults and Indenture Event of Default resulting from an event of
nonpayment) unless a Responsible Officer of the Indenture Trustee shall
have received written notice thereof. In the absence of receipt of such
notice, the Indenture Trustee may conclusively assume that there is no
default or Indenture Event of Default;
(v) The Indenture Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability for the performance
of any of its duties hereunder or the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this
Indenture shall in any event require the Indenture Trustee to perform, or
be responsible for the manner of performance of, any of the obligations of
the Owner Trust under this Indenture;
(vi) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act;
37
42
(vii) The Indenture Trustee may consult with counsel;
(viii) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Indenture Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it hereunder with due care; and
(ix) The Indenture Trustee shall not be personally liable absent
gross negligence for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the direction of
rights or powers conferred upon it by this Agreement or any other
Operative Document.
Section 6.2 Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Section 5.2 and except as provided in
Section 5.5 and 5.8, the Indenture Trustee shall have no duty (a) to see to any
registration, recording or filing of any Operative Document (or any financing or
continuation statements in respect thereof) or to see to the maintenance of any
such registration, recording or filing, (b) to see to any insurance on the
Facility or the Undivided Interest or to effect or maintain any such insurance,
(c) except as otherwise provided in Section 5.5 or in Section 9 of the
Participation Agreement, to see to the payment or discharge of any Tax or any
Lien of any kind owing with respect to, or assessed or levied against, any part
of the Indenture Estate, (d) to confirm or verify the contents of any report,
notice, request, demand, certificate, financial statement or other instrument of
the Lessee, the Owner Trust or the Owner Participant, (e) to inspect the
Facility at any time or ascertain or inquire as to the performance or observance
of any of the covenants of the Lessee, the Owner Trust or the Owner Participant
with respect to the Facility, (f) to exercise any of the trusts or powers vested
in it by this Indenture or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Noteholders, pursuant to the provisions of this Indenture, unless such
Noteholders shall have provided to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby (which in the case of the Majority in Interest of Noteholders
will be deemed to be satisfied by a letter agreement with respect to such costs
from such Majority in Interest in the Noteholders); or (g) to give any bond or
surety in respect of the execution of the trust fund created hereby or the
powers granted hereunder. Notwithstanding the foregoing, the Indenture Trustee
shall furnish to each Noteholder and to the Owner Trust and the Owner
Participant promptly upon receipt thereof of duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
other instruments furnished to the Indenture Trustee hereunder or under any of
the Operative Documents unless the Indenture Trustee shall reasonably believe
that each such Noteholder, the Owner Trust and the Owner Participant shall have
received copies thereof.
Section 6.3 Representations, Warranties and Covenants.
(a) Subject to Section 2.5, the Owner Trust hereby covenants and
agrees that it will duly and punctually pay the principal of, and premium, if
any, and interest on, the Notes in accordance with the terms thereof and this
Indenture. The Owner Trust represents and
38
43
warrants that it has not assigned or pledged, and hereby covenants that it will
not assign or pledge, so long as this Indenture shall remain in effect, any of
its estate, right, title or interest subject to this Indenture, to anyone other
than to an additional or successor trustee under the Trust Agreement or to the
Indenture Trustee. Subject to Section 5.6, the Owner Trust further covenants
that it will not, except with the prior written consent of the Indenture Trustee
or as expressly provided in or permitted by this Indenture or with respect to
any property not constituting part of the Indenture Estate, (i) exercise any
election or option, or make any decision or determination, or give any notice,
consent, waiver or approval, or take any other action, under or in respect of
any Assigned Document, (ii) accept and retain any payment from, or settle or
compromise any claim against, the Lessee under any Assigned Document in
violation of Section 3.9, (iii) submit or consent to the submission to
arbitration of any dispute, difference or other matter arising under or in
respect of any Assigned Document, or (iv) take any action, which would result in
an alteration or impairment of any Note or any Assigned Document (except in
respect of Excepted Payments) or any of the rights or security created or
effected thereby. A signed copy of any amendment or supplement to the Trust
Agreement shall be delivered by the Owner Trust, the Indenture Trustee and the
Lessee. This Indenture and the Indenture Estate shall not be affected by any
action taken under or in respect of the Trust Agreement except as otherwise
provided or permitted by this Indenture.
(b) NEITHER THE OWNER TRUST NOR THE INDENTURE TRUSTEE MAKES, NOR
SHALL BE DEEMED TO HAVE MADE (i) ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, VALUE, COMPLIANCE WITH PLANS OR SPECIFICATIONS,
QUALITY, DURABILITY, SUITABILITY, CONDITION, DESIGN, OPERATION, MERCHANTABILITY
OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE OF THE FACILITY OR ANY PART
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE UNDIVIDED INTEREST OR ANY OTHER PART OF THE INDENTURE
ESTATE, except that the Owner Trust represents and warrants that on the Closing
Date it shall have received whatever title or interest to the Undivided Interest
and the Facility Site as was conveyed to it by the Sellers under the Asset
Purchase Agreement and that on the Closing Date the Undivided Interest shall be
free of Lessor's Liens and the Owner Participant's Liens or (ii) any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Notes or any of the other Operative Documents, or as to the
correctness of any statement contained in any thereof, except that each of the
Owner Trust and the Indenture Trustee represents and warrants that this
Indenture and the Participation Agreement have been, and, in the case of the
Owner Trust, the other Operative Documents to which it is or is to become a
party have been or will be, executed and delivered by one of its officers who is
and will be duly authorized to execute and deliver such document on its behalf.
Section 6.4 No Segregation of Moneys; No Interest. All moneys and
securities deposited with and held by the Indenture Trustee under this Indenture
for the purpose of paying, or securing the payment of, the principal of or
premium or interest on the Notes shall be held in trust. Except as specifically
provided herein or in the Lease, any moneys received by the Indenture Trustee
hereunder need not be segregated in any manner except to the extent required by
Applicable Law and may be deposited under such general conditions as may be
39
44
prescribed by Applicable Law, and neither the Owner Trust nor the Indenture
Trustee shall be liable for any interest thereon; provided, however, subject to
Section 6.5, that any payments received or applied hereunder by the Indenture
Trustee shall be accounted for by Indenture Trustee so that any portion thereof
paid or applied pursuant hereto shall be identifiable as to the source thereof.
Section 6.5 Reliance; Agents; Advice of Experts. The Indenture
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper, or any facsimile transmission, e-mail
or other electronic communication, believed to be genuine and believed to be
signed or sent by the proper party or parties. The Indenture Trustee may accept
in good faith a certified copy of a resolution of the Board of Directors of the
Lessee as conclusive evidence that such resolution has been duly adopted by such
Board and that the same is in full force and effect. As to the amount of any
payment to which any Noteholder is entitled pursuant to Clause "Third" of
Section 3.2 or Section 3.3, and as to the amount of any payment to which any
other Person is entitled pursuant to Section 3.5 or Section 3.7, the Indenture
Trustee for all purposes hereof may rely on and shall be protected in acting or
refraining from acting upon an Officer's Certificate of such Noteholder or other
Person, as the case may be. As to any fact or matter the manner of ascertainment
of which is not specifically described herein, the Indenture Trustee for all
purposes hereof may rely on an Officer's Certificate of the Owner Trust or the
Lessee or a Noteholder as to such a fact or matter, and such certificate shall
constitute full protection to the Indenture Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon. In the
administration of the trusts hereunder, the Indenture Trustee may execute any of
the trusts or powers hereof and perform its powers and duties hereunder directly
or through agents or attorneys and may, at the expense of the Indenture Estate
(but subject to the priorities of payment set forth in Section 3), consult with
independent skilled Persons to be selected and retained by it (other than
Persons regularly in its employ) as to matters within their particular
competence, and the Indenture Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice or
opinion, within such Person's area of competence, of any such Person, so long as
the Indenture Trustee shall have exercised reasonable care in selecting such
Person.
SECTION 7
SUCCESSOR INDENTURE TRUSTEES AND SEPARATE TRUSTEES
Section 7.1 Resignation or Removal of the Indenture Trustee;
Appointment of Successor.
(a) Resignation or Removal. The Indenture Trustee or any successor
thereto may resign at any time with or without cause by giving at least 30 days'
prior written notice to the Owner Trust, the Owner Participant, the Lessee and
each Noteholder, such resignation to be effective on the acceptance of
appointment by the successor to the Indenture Trustee pursuant to the provisions
of subsection (b) below. In addition, a Majority in Interest in the Noteholders
may at any time remove the Indenture Trustee with or without cause by an
instrument in
40
45
writing delivered to the Owner Trust, the Owner Participant and the Indenture
Trustee, and the Owner Trust shall give prompt written notification thereof to
each Noteholder and the Lessee. Such removal will be effective on the acceptance
of appointment by the successor Indenture Trustee pursuant to the provisions of
subsection (b) below. In the case of the resignation or removal of the Indenture
Trustee, a Majority in Interest of Noteholders may appoint a successor Indenture
Trustee by an instrument signed by such holders. If a successor Indenture
Trustee shall not have been appointed within 30 days after such resignation or
removal, the Indenture Trustee or any Noteholder may apply to any court of
competent jurisdiction to appoint a successor Indenture Trustee to act until
such time, if any, as a successor shall have been appointed by a Majority in
Interest of Noteholders as above provided. The successor Indenture Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Indenture Trustee appointed by a Majority in Interest in the
Noteholders as above provided.
(b) Acceptance of Appointment. Any successor Indenture Trustee shall
(i) execute and deliver to the predecessor Indenture Trustee, the Owner
Participant, the Owner Trust and all Noteholders an instrument accepting such
appointment, and (ii) execute and present for filing with the appropriate
Governmental Entity, if any, a notice with the relevant details of such
appointment, and thereupon such successor Indenture Trustee, without further
act, shall become vested with all the estates, properties, rights, powers and
duties of the predecessor Indenture Trustee hereunder in the trusts hereunder
applicable to it with like effect as if originally named the Indenture Trustee
herein; but nevertheless upon the written request of such successor Indenture
Trustee or a Majority in Interest of Noteholders, such predecessor Indenture
Trustee shall execute and deliver an instrument transferring to such successor
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights and powers of such predecessor Indenture Trustee,
and such predecessor Indenture Trustee shall duly assign, transfer, deliver and
pay over to such successor Indenture Trustee all moneys or other property then
held by such predecessor Indenture Trustee hereunder. To the extent required by
Applicable Law or upon request of the successor Indenture Trustee, the Owner
Trust shall execute any and all documents confirming the vesting of such
estates, properties, rights and powers in the successor Indenture Trustee.
(c) Qualifications. Any successor Indenture Trustee, however
appointed, shall be a trust company or bank with trust powers (i) which (A) has
a combined capital and surplus of at least $150,000,000, or (B) is a direct or
indirect subsidiary of a corporation which has a combined capital and surplus of
at least $150,000,000 provided such corporation guarantees the performance of
the obligations of such trust company or bank as Indenture Trustee, or (C) is a
member of a bank holding company group having a combined capital and surplus of
at least $150,000,000 provided the parent of such bank holding company group or
a member which itself has a combined capital and surplus of at least
$150,000,000 guarantees the performance of the obligations of such trust company
or bank, and (ii) is willing, able and legally qualified to perform the duties
of Indenture Trustee hereunder upon reasonable or customary terms. No successor
Indenture Trustee, however appointed, shall become such if such appointment
would result in the violation of any Applicable Law or create a conflict or
relationship involving a conflict of interest under the Trust Indenture Act of
1939, as amended.
41
46
(d) Merger, etc. Any corporation into which the Indenture 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
Indenture Trustee shall be a party, or any corporation to which substantially
all the corporate trust business of the Indenture Trustee may be transferred,
shall, subject to the terms of subsection (c) above, be the Indenture Trustee
under this Indenture without further act.
Section 7.2 Appointment of Additional and Separate Trustees.
(a) Appointments. Whenever (i) the Indenture Trustee shall deem it
necessary or prudent in order to conform to any law of any applicable
jurisdiction or to make any claim or bring any suit with respect to or in
connection with the Indenture Estate, this Indenture, the Lease, the Notes or
any of the transactions contemplated by the Operative Documents, (ii) the
Indenture Trustee shall be advised by counsel, satisfactory to it, that it is so
necessary or prudent in the interest of the Noteholders or (iii) a Majority in
Interest of Noteholders deems it so necessary or prudent and shall have
requested in writing the Indenture Trustee to do so, then in any such case the
Indenture Trustee shall execute and deliver from time to time all instruments
and agreements necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Indenture Trustee either to act as
additional trustee or trustees of all or any part of the Indenture Estate,
jointly with the Indenture Trustee, or to act as separate trustee or trustees of
all or any part of the Indenture Estate, in any such case with such powers as
may be provided in such instruments or agreements, and to vest in such bank,
trust company or Person as such additional trustee or separate trustee, as the
case may be, any property, title, right or power of the Indenture Trustee deemed
necessary or advisable by the Indenture Trustee, subject to the remaining
provisions of this Section 7.2. The Owner Trust hereby consents to all actions
taken by the Indenture Trustee under the provisions of this Section 7.2 and
agrees, upon the Indenture Trustee's request, to join in and execute,
acknowledge and deliver any or all such instruments or agreements; and the Owner
Trust hereby makes, constitutes and appoints the Indenture Trustee its agent and
attorney-in-fact for it and in its name, place and stead to execute, acknowledge
and deliver any such instrument or agreement in the event that the Owner Trust
shall not itself execute and deliver the same within 15 days after receipt by it
of such request so to do; provided, however, that the Indenture Trustee shall
exercise due care in selecting any additional or separate trustee if such
additional or separate trustee shall not be a Person possessing trust powers
under Applicable Law. If at any time the Indenture Trustee shall deem it no
longer necessary or prudent in order to conform to any such law or take any such
action or shall be advised by such counsel that it is no longer necessary or
prudent in the interest of the Noteholders or in the event that the Indenture
Trustee shall have been requested to do so in writing by a Majority in Interest
of Noteholders, the Indenture Trustee shall execute and deliver all instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee. In such connection, the Indenture Trustee may act on behalf of the
Owner Trust to the same extent as is provided above. Notwithstanding anything
contained to the contrary in this Section 7.2(a), to the extent the laws of any
jurisdiction preclude the Indenture Trustee from taking any action hereunder
either alone, jointly or through a separate trustee under the direction and
control of the Indenture Trustee, the Owner Trust, at the instruction of the
Indenture Trustee, shall appoint a separate trustee for such
42
47
jurisdiction, which separate trustee shall have full power and authority to take
all action hereunder as to matters relating to such jurisdiction without the
consent of the Indenture Trustee, but not subject to the same limitations in any
exercise of his power and authority as those to which the Indenture Trustee is
subject.
(b) The Indenture Trustee as Agent. Any additional trustee or
separate trustee at any time by an instrument in writing may constitute the
Indenture Trustee its agent or attorney-in-fact, with full power and authority,
to the extent not prohibited by Applicable Law, to do all acts and things and
exercise all discretions which it is authorized or permitted to do or exercise,
for and in its behalf and in its name. In case any such additional trustee or
separate trustee shall become incapable of acting or cease to be such additional
trustee or separate trustee, the property, rights, powers, trusts, duties and
obligations of such additional trustee or separate trustee, as the case may be,
so far as permitted by Applicable Law, shall vest in and be exercised by the
Indenture Trustee, without the appointment of a new successor to such additional
trustee or separate trustee, unless and until a successor is appointed in the
manner hereinbefore provided.
(c) Requests, etc. Any request, approval or consent in writing by
the Indenture Trustee to any additional trustee or separate trustee shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take the requested, approved or consented to action.
(d) Subject to Indenture, etc. Each additional trustee and separate
trustee appointed pursuant to this Section 7.2 shall be subject to, and shall
have the benefit of, Sections 3 through 9 insofar as they apply to the Indenture
Trustee. Notwithstanding any other provision of this Section 7.2, (i) the
powers, duties, obligations and rights of any additional trustee or separate
trustee appointed pursuant to this Section 7.2 shall not in any case exceed
those of the Indenture Trustee hereunder, (ii) all powers, duties, obligations
and rights conferred upon the Indenture Trustee in respect of the receipt,
custody, investment and payment of moneys or the investment of moneys shall be
exercised solely by the Indenture Trustee and (iii) no power hereby given to, or
exercisable as provided herein by, any such additional trustee or separate
trustee shall be exercised hereunder by such additional trustee or separate
trustee except jointly with, or with the consent of, the Indenture Trustee.
SECTION 8
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
Section 8.1 Supplemental Indentures and Other Amendments With
Consent, Conditions and Limitations. At any time and from time to time, subject
to Section 8.3, but only upon the written direction of a Majority in Interest of
Noteholders and the written consent of the Owner Trust, (a) the Indenture
Trustee shall execute an amendment or supplement hereto for the purpose of
adding provisions to, or changing or eliminating provisions of, this Indenture
as specified in such request, and (b) the Indenture Trustee shall enter into or
consent to such
43
48
written amendment of or supplement to any Assigned Document as each other party
thereto may agree to and as may be specified in such request, or execute and
deliver such written waiver or modification of or consent to the terms of any
such agreement or document as may be specified in such request; provided,
however, that without the consent of the Noteholders representing one hundred
percent (100%) of the outstanding principal amount of Notes, such percentage to
be determined in the same manner as provided in the definition of the term
"Majority in Interest of Noteholders," no such supplement to or amendment of
this Indenture or any Assigned Document, or waiver or modification of or consent
to the terms hereof or thereof, shall (i) modify the definition of the terms
"Majority in Interest in the Noteholders" or reduce the percentage of
Noteholders required to take or approve any action hereunder, (ii) change the
amount or the time of payment of any amount owing or payable under any Note or
change the rate or manner of calculation of interest payable on any Note, (iii)
alter or modify the provisions of Section 3 with respect to the manner of
payment or the order of priorities in which distributions thereunder shall be
made as between the Noteholders and the Owner Trust, (iv) reduce the amount
(except to any amount as shall be sufficient to pay the aggregate principal of,
premium, if any, and interest on all outstanding Notes) or extend the time of
payment of Basic Rent or Termination Value except as expressly provided in
Section 3.6 of the Lease, or change any of the circumstances under which Basic
Rent or Termination Value is payable, or (v) consent to any assignment of the
Lease if in connection therewith the Lessee will be released from its obligation
to pay Basic Rent and Termination Value or such assignment shall reduce the
Lessee's obligations in respect of the payment of Basic Rent or Termination
Value or change the absolute and unconditional character of such obligations as
set forth in Section 9 of the Lease.
Section 8.2 Supplemental Indentures and Other Amendments Without
Consent. Without the consent of any Noteholders but subject to the provisions of
Section 8.3, and only after notice thereof shall have been sent to the
Noteholders and with the consent of the Owner Trust, the Indenture Trustee shall
enter into any indenture or indentures supplemental hereto or execute any
amendment, modification, supplement, waiver or consent with respect to any other
Operative Document (a) to evidence the succession of a successor as the
Indenture Trustee hereunder, the removal of the Indenture Trustee or the
appointment of any separate or additional trustee or trustees, in each case if
done pursuant to the provisions of Section 7 and to define the rights, powers,
duties and obligations conferred upon any such separate trustee or trustees or
co-trustee or co-trustees, (b) to correct, confirm or amplify the description of
any property at any time subject to the Lien of this Indenture or to convey,
transfer, assign, mortgage or pledge any property to or with the Indenture
Trustee, (c) to provide for any evidence of the creation and issuance of any
Additional Notes pursuant to, and subject to the conditions of, Section 2.12,
(d) to cure any ambiguity in, to correct or supplement any defective or
inconsistent provision of, or to add to or modify any other provisions and
agreements in this Indenture or any other Operative Document in any manner that
will not in the judgment of the Indenture Trustee materially adversely affect
the interests of the Noteholders, (e) to grant or confer upon the Indenture
Trustee for the benefit of the Noteholders any additional rights, remedies,
powers, authority or security which may be lawfully granted or conferred and
which are not contrary or inconsistent with this Indenture, (f) to add to the
covenants or agreements to be observed by the Owner Trust and which are not
contrary to this Indenture, to add Indenture
44
49
Events of Defaults for the benefit of Noteholders or to surrender any right or
power of the Owner Trust, provided it has consented thereto, and (g) with
respect to any indenture or indentures supplemental hereto or any amendment,
modification, supplement or waiver or consent with respect to any other
Operative Document, provided such supplemental indenture, amendment,
modification, supplement, waiver or consent shall not, in the judgment of the
Indenture Trustee, materially adversely affect the interest of the Noteholders;
provided, however, that no such amendment, modification, supplement, waiver or
consent contemplated by this Section 8.2 shall, without the consent of the
holder of each then outstanding Note, cause any of the events specified in
clauses (i) through (v) of the first sentence of Section 8.1 to occur; and
provided, further, that no such amendment, modification, supplement, waiver or
consent contemplated by this Section 8.2 shall, without the consent of the
holder of a Majority in Interest of Noteholders, modify the provisions of
Sections 5 or 6 of the Participation Agreement without the consent of a Majority
in Interest of Noteholders.
Section 8.3 Conditions to Action by the Indenture Trustee. If in the
opinion of the Indenture Trustee any document required to be executed pursuant
to the terms of Section 8.1 or 8.2 or the election referred to in Section 9.13
adversely affects any immunity or indemnity in favor of the Indenture Trustee
under this Indenture or the Participation Agreement, or would materially
increase its administrative duties or responsibilities hereunder or thereunder
or may result in personal liability for it (unless it shall have been provided
an indemnity satisfactory to the Indenture Trustee), the Indenture Trustee may
in its discretion decline to execute such document or the election. With every
such document and election, the Indenture Trustee shall be furnished with
evidence that all necessary consents have been obtained and with an opinion of
counsel that such document complies with the provisions of this Indenture, does
not deprive the Indenture Trustee or the holders of the Notes of the benefits of
the Lien hereby created on any property subject hereto or of the assignments
contained herein (except as otherwise consented to in accordance with Section
8.1) and that all consents required by the terms hereof in connection with the
execution of such document or the making of such election have been obtained.
The Indenture Trustee shall be fully protected in relying on such opinion.
SECTION 9
MISCELLANEOUS
Section 9.1 Surrender, Defeasance and Release.
(a) Surrender and Cancellation of Indenture. This Indenture shall be
surrendered and canceled and the trusts created hereby shall terminate and this
Indenture shall be of no further force or effect upon satisfaction of the
conditions set forth in the proviso to the Granting Clause hereof. Upon any such
surrender, cancellation and termination, the Indenture Trustee shall pay all
moneys or other properties or proceeds constituting part of the Indenture Estate
(the distribution of which is not otherwise provided for herein) to the Owner
Trust, and the Indenture Trustee shall, upon request and at the cost and expense
of the Owner Trust, execute and deliver proper instruments acknowledging such
cancellation and termination and
45
50
evidencing the release of the security, rights and interests created hereby. If
this Indenture is terminated pursuant to this Section 9.1(a), the Indenture
Trustee shall promptly notify the Lessee and the Owner Participant of such
termination.
(b) Defeasance of Notes. Any Note shall, prior to the maturity or
Redemption Date thereof, be deemed to have been paid within the meaning and with
the effect expressed in this Section 9.1 if (i) there shall have been deposited
with the Indenture Trustee either moneys in an amount which shall be sufficient,
or U.S. Government Obligations, the principal of and the interest on which when
due, and without any reinvestment thereof, will provide moneys in an amount
which shall be sufficient, together with the moneys, if any, deposited with or
held by the Indenture Trustee at the same time (such sufficiency to be
established by the delivery to the Indenture Trustee of a certificate of an
independent public accountant), to pay when due the principal of and premium, if
any, and interest due and to become due on said Note on and prior to the
Redemption Date or maturity date thereof, as the case may be, and (ii) in the
event said Note does not mature or is not to be redeemed within the next 45
days, the Indenture Trustee shall have been given irrevocable instructions to
give, as soon as practicable, a notice to the registered holder of such Note
that the deposit required by subclause (i) above has been made with the
Indenture Trustee and that said Note is deemed to have been paid in accordance
with this Section 9.1(b) and stating such maturity or Redemption Date upon which
moneys are to be available for the payment of the principal of and premium, if
any, and interest on said Note. Neither the U.S. Government Obligations nor
moneys deposited with the Indenture Trustee pursuant to this Section 9.1(b) or
principal or interest payments on any such U.S. Government Obligations shall be
withdrawn or used for any purpose other than, and shall be held in trust for the
payment of the principal of and premium, if any, and interest on said Note;
provided, however, that any cash received from such principal or interest
payments on such U.S. Government Obligations deposited with the Indenture
Trustee shall be reinvested in accordance with Section 3.4 in U.S. Government
Obligations. At such time as any Note shall be deemed paid as aforesaid, it
shall no longer be secured by or entitled to the benefits of the portions of the
Indenture Estate or this Indenture, except that (i) such Note shall be entitled
to the benefits of the portions of the Indenture Estate described in Granting
Clauses (4) and (7), to the extent such portions relate to such moneys or U.S.
Government Obligations deposited with the Indenture Trustee, (ii) the provisions
of Sections 2.8 and 2.9 shall continue to apply to such Note and (iii) the
duties and immunities of the Indenture Trustee hereunder shall continue with
respect to such Note. Notwithstanding the foregoing, the Owner Trust shall not
make or cause to be made the deposit of moneys or property provided for by this
Section 9.1(b) unless it shall have delivered to the Indenture Trustee an
opinion or opinions of counsel reasonably satisfactory to the Indenture Trustee
to the effect that the deposit of such moneys or U.S. Government Obligations by
the Owner Trust or other defeasance of the Lessor Notes will not cause a Tax
Event.
(c) Release.
(i) Whenever a Component is replaced pursuant to the Lease, the
Owner Trust's interest in such Component shall automatically and without further
act of any Person be released from the Lien of the Indenture and the Indenture
Trustee shall, upon request of the
46
51
Owner Trust or the Lessee, execute and deliver to, and as directed in writing
by, the Lessee or the Owner Trust an appropriate instrument (in due form for
recording) releasing the Owner Trust's interest in the replaced Component from
the Lien of the Indenture.
(ii) Whenever the Lessee is entitled to acquire or have transferred
to it the Undivided Interest pursuant to the express terms of the Lease, the
Indenture Trustee shall release the Indenture Estate from the Lien of the
Indenture and execute and deliver to, or as directed in writing by, the Lessee
or the Owner Trust an appropriate instrument (in due form for recording)
releasing the Indenture Estate from the Lien of the Indenture; provided that all
sums secured by this Indenture have been paid to the Persons entitled to such
sums.
Section 9.2 Conveyances Pursuant to Section 5.2 of Site Lease.
Sales, grants of leases or easements and conveyances of portions of the Facility
Site, rights of way, easements or leasehold interest made by the Lessee in
accordance with Section 5.2 of the Site Lease and any such property right so
sold, leased or otherwise conveyed shall automatically, without further act of
any Person, be released from this Indenture.
Section 9.3 Appointment of the Indenture Trustee as Attorney;
Further Assurances. The Owner Trust hereby appoints the Indenture Trustee the
true and lawful attorney of the Owner Trust irrevocably with full power as long
as the Indenture is in effect (in the name of the Owner Trust or otherwise) to
ask, require, demand, receive, compound and give acquittance for any and all
moneys and claims for moneys due and to become due under or arising out of the
Assigned Documents (except to the extent that such moneys and claims constitute
Excepted Payments), to endorse any checks or other instruments or orders in
connection therewith, to make all such demands and to give all such notices as
are permitted by the terms of the Lease to be made or given by the Owner Trust
upon the occurrence and continuance of a Lease Material Default or a Lease Event
of Default, to enforce compliance by the Lessee with all terms and provisions of
the Lease (except as otherwise provided in Sections 4.3 and 5.6), and to file
any claims or take any action or institute any proceedings which the Indenture
Trustee may request in the premises.
Section 9.4 Indenture for Benefit of Certain Persons Only. Nothing
in this Indenture, whether express or implied, shall be construed to give to any
Person other than the parties hereto, the Owner Participant, the Lessee (with
respect to Sections 2.2, 2.3, 2.4, 2.10, 2.12, 3.1, 3.2, 3.3, 5.4, 5.8, 7.1,
8.1, 9.4, 9.12, and 9.14) and the Noteholders (and any successor or assign of
any thereof) any legal or equitable right, remedy or claim under or in respect
to this Indenture, and this Indenture shall be for the sole and exclusive
benefit of the parties hereto, the Owner Participant, the Lessee (as provided in
Sections 2.2, 2.3, 2.4, 2.10, 2.12, 3.1, 3.2, 3.3, 5.4, 5.8, 7.1, 8.1, 9.4,
9.12, and 9.14) and the Noteholders of the Notes.
Section 9.5 Notices, Furnishing Documents, etc. Unless otherwise
expressly specified or permitted by the terms hereof, all communications and
notices provided for herein to a party hereto shall be in writing or by a
telecommunications device capable of creating a written record, and any such
notice shall become effective (a) upon personal delivery thereof, including,
without limitation, by overnight mail or courier service, (b) in the case of
notice by
47
52
United States mail, certified or registered, postage prepaid, return receipt
requested, upon receipt thereof, or (c) in the case of notice by such a
telecommunications device, upon transmission thereof, provided such transmission
is promptly confirmed by either of the methods set forth in clauses (a) and (b)
above, in each case addressed to such party and copy party at its address set
forth below or at such other address as such party or copy party may from time
to time designate by written notice to the other party:
If to the Owner Trust:
▇▇▇▇▇▇▇▇ Facility Trust A-1
c/o Wilmington Trust Company, as Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
with a copy to the Owner Participant:
As set forth on Schedule 16.5 of the Participation Agreement.
If to the Indenture Trustee:
Bankers Trust Company
Mailbox # MS5041
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Assistant Vice President
If to AEE:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Project Manager
Section 9.6 Severability. Any provision of this Indenture which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of
48
53
such prohibition or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.7 Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
on behalf of the Owner Trust by the Trustee, not individually or personally but
solely as trustee of the Owner Trust under the Trust Agreement, in the exercise
of the powers and authority conferred and vested in it pursuant thereto, (b)
each of the representations, undertakings and agreements herein made on the part
of the Owner Trust is made and intended not as personal representations,
undertakings and agreements by the Trustee, but is made and intended for the
purpose for binding only the Owner Trust, (c) nothing herein contained shall be
construed as creating any liability on the Trustee, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto or by any Person
claiming by, through or under the parties hereto and (d) under no circumstances
shall the Trustee be personally liable for the payment of any indebtedness or
expenses of the Owner Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trust under this Indenture.
Section 9.8 Written Changes Only. Subject to Sections 8.1 and 8.2,
no term or provision of this Indenture or any Note may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Person against whom enforcement of the change, waiver, discharge or
termination is sought; and any waiver of the terms hereof or of any Note shall
be effective only in the specific instance and for the specific purpose given.
Section 9.9 Counterparts. This Indenture may be executed in separate
counterparts, each of which, when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 9.10 Successors and Permitted Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns and
each Noteholder. Any request, notice, direction, consent, waiver or other
instrument or action by any Noteholder shall bind the successor and assigns
thereof.
Section 9.11 Headings and Table of Contents. The headings of the
sections of this Indenture and the Table of Contents are inserted for purposes
of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 9.12 Governing Law. This Indenture and the Notes shall be in
all respects governed by and construed in accordance with the laws of the State
of New York, including all matters of construction, validity and performance
(without giving effect to the conflicts of laws provisions thereof, other than
New York General Obligations Law Section 5-1401).
49
54
Section 9.13 Reorganization Proceedings with Respect to the Trust
Estate. If (a) the Trust Estate becomes a debtor subject to the reorganization
provisions of Title 11 of the United States Code, or any successor provisions,
(b) pursuant to such reorganization provisions the Owner Participant is required
by reason of the Owner Participant's being held to have recourse liability that
it would not otherwise have had under Section 2.5 to the debtor or the trustee
of the debtor, directly or indirectly, to make payment on account of any amount
payable as principal or interest on the Notes and (c) any Noteholder or the
Indenture Trustee actually receives any Excess Amount (as hereinafter defined)
which reflects any payment by the Owner Participant on account of clause (b)
above, then such Noteholder or the Indenture Trustee, as the case may be, shall
promptly refund such Excess Amount, without interest, to the Owner Participant
after receipt by such Noteholder or the Indenture Trustee, as the case may be,
of a written request for such refund by the Owner Participant (which request
shall specify the amount of such Excess Amount and shall set forth in detail the
calculation thereof). For purposes of this Section 9.13, "Excess Amount" means
the amount by which such payment exceeds the amount which would have been
received by such holder and the Indenture Trustee in respect of such principal
or interest if the Owner Participant had not become subject to the recourse
liability referred to in clause (b) above. Nothing contained in this Section
9.13 shall prevent the Indenture Trustee or any Noteholder from enforcing any
personal recourse obligations (and retaining the proceeds thereof) of the Owner
Participant under the Participation Agreement.
The Noteholders and the Indenture Trustee agree that should the
Trust Estate become a debtor subject to the reorganization provisions of the
Bankruptcy Code, they shall upon the request of the Owner Participant, and
provided that the making of the election hereinafter referred to is permitted to
be made by them under Applicable Law and will not have any adverse impact on any
Noteholder, the Indenture Trustee or the Indenture Estate other than as
contemplated by the preceding paragraph, make the election referred to in
Section 1111(b)(1)(A)(i) of Title 11 of the Bankruptcy Code or any successor
provision if, in the absence of such election, the Noteholders would have
recourse against the Owner Participant for the payment of the indebtedness
represented by the Notes in circumstance in which such Noteholders would not
have recourse under this Indenture if the Trust Estate had not become a debtor
under the Bankruptcy Code.
Section 9.14 Withholding Taxes; Information Reporting. The Indenture
Trustee shall exclude and withhold from each distribution of principal, premium,
if any, and interest and other amounts due hereunder or under the Lessor Notes
any and all withholding taxes applicable thereto as required by law. The
Indenture Trustee agrees (a) to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Lessor
Notes, to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the Noteholders, (b) that it will file
any necessary withholding tax returns or statements when due, and (c) that, as
promptly as possible after the payment thereof, it will deliver to each
Noteholder appropriate documentation showing the payment thereof, together with
such additional documentary evidence as such Noteholders may reasonably
50
55
request from time to time. The Indenture Trustee agrees to file any other
information as it may be required to file under United States law.
(Remainder of Page Intentionally Left Blank)
51
56
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed on the date and year first above written.
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: ____________________
Name:
Title:
Date:
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: ____________________
Name:
Title:
52
57
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 14th day of
May, 1999, by ____________, ______________, to be the free act and deed of
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity but solely as Trustee.
_______________________________
Notary Public
My Commission Expires__________
58
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 14th day of
May, 1999, by ____________________, ________________, to be the free act and
deed of Bankers Trust Company, a New York banking corporation, not in its
individual capacity but solely as Indenture Trustee.
_______________________________
Notary Public
My Commission Expires__________
59
Annex 1
to
Indenture
DEFINITIONS
[Attached]
60
EXHIBIT A
to
Indenture
DESCRIPTION OF THE FACILITY
61
EXHIBIT B
to
Indenture
DESCRIPTION OF THE FACILITY SITE
62
EXHIBIT C
to
Indenture
FORM OF 2016 LESSOR NOTE
(▇▇▇▇▇▇▇▇)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
NONRECOURSE PROMISSORY NOTE NO. __, DUE IN A SERIES OF
INSTALLMENTS OF PRINCIPAL WITH FINAL PAYMENT DATE OF JULY 2, 2016.
Issued at: New York, New York
Issue Date: May 14, 1999
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1, a Delaware business trust (herein
called the "Owner Trust," which term includes any successor person under the
Indenture hereinafter referred to), hereby promises to pay to BANKERS TRUST
COMPANY, in its capacity as trustee of the Series 1999-A Pass Through Trust, or
its registered assigns, the principal sum of Twenty Nine Million One Hundred
Seventeen Thousand Two Hundred Nine and 87/100 Dollars ($29,117,209.87), which
is due and payable in installments of principal with a final payment date of
July 2, 2016, as provided below, together with interest at the rate of nine
percent (9.00%) per annum on the principal remaining unpaid from time to time.
Interest on the outstanding principal amount under this Note
(computed on the basis of a 360-day year of twelve 30-day months) shall be due
and payable in arrears at the rate specified above, commencing on January 2,
2000, and semi-annually on each January 2 and July 2 thereafter until the
principal of this Note is paid in full. The principal of this Note shall be due
and payable in installments on the respective dates and in the respective
amounts set forth in Schedule 1 attached hereto in the column headed "Scheduled
Principal Amount Payable", provided, that the last installment of principal
shall be equal to the then unpaid balance of the principal of this Note.
Capitalized terms used in this Note which are not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture of Trust and
Security Agreement (▇▇▇▇▇▇▇▇ A-1), dated as of May 1, 1999 (the "Indenture"),
between the Owner Trust and Bankers Trust Company, as grantee (the "Indenture
Trustee").
Interest (computed on the basis of a 360-day year of twelve 30-day
months) on any overdue principal and premium, if any, and, to the extent
permitted by Applicable Law, on overdue interest shall be paid on demand at the
Overdue Rate.
1
63
In the event any date on which a payment is due under this Note is
not a Business Day, then payment thereof shall be made on the next succeeding
Business Day with the same effect as if made on the date on which such payment
was due.
Except as otherwise specifically provided in the Indenture and in
the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Indenture Trustee hereunder and under the Indenture
shall be made only from the Indenture Estate, and the Owner Trust shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments in
accordance with the terms of Section 3 of the Indenture; and the Owner
Participant shall not have any obligation for payments in respect of this Note
or under the Indenture. The holder hereof, by its acceptance of this Note,
agrees that it will look solely to the income and proceeds from the Indenture
Estate to the extent available for distribution to the holder hereof, as herein
provided, and that, except as expressly provided in the Indenture or the
Participation Agreement, none of the Owner Participant, the Owner Trust, the
Lease Indenture Company or the Indenture Trustee is or shall be personally
liable to the holder for any amounts payable under this Note or under the
Indenture, or for any performance to be rendered under the Indenture or any
Assigned Document or for any liability under the Indenture or any Assigned
Document.
The principal of and premium, if any, and interest on this Note
shall be paid by the Indenture Trustee, without any presentment or surrender of
this Note, except that, in the case of the final payment in respect of this
Note, this Note shall be surrendered to the Indenture Trustee, by mailing a
check for the amount then due and payable, in New York Clearing House funds, to
the Noteholder, at the last address of the Noteholder appearing on the Note
Register, or by whichever of the following methods has been specified by notice
from the Noteholder to the Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to a banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be distributed by the Indenture Trustee are actually received by the
Indenture Trustee if such amounts are received by 2:00 p.m., New York City time,
on a Business Day or (ii) on the next succeeding Business Day if received after
such time or on any day other than a Business Day. Prior to due presentment for
registration of transfer of this Note, the Owner Trust and the Indenture Trustee
may deem and treat the Person in whose name this Note is registered on the Note
Register as the absolute owner and holder of this Note for the purpose of
receiving payment of all amounts payable with respect to this Note and for all
other purposes, and neither the Owner Trust nor the Indenture Trustee shall be
affected by any notice to the contrary. All payments made on this Note in
accordance with the provisions of this paragraph shall be valid and effective to
satisfy and discharge the liability on this Note to the extent of the sums so
paid and neither the Indenture Trustee nor the Owner Trust shall have any
liability in respect of such payment.
64
The holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied in the manner set forth in
Section 2.7 of the Indenture, which provides that each payment on the Note shall
be applied as follows: first, to the payment of accrued interest (including
interest on overdue principal and, to the extent permitted by Applicable Law,
overdue interest) on this Note to the date of such payment; second, to the
payment of the principal amount of, and premium, if any, on this Note then due
(including any overdue installments of principal) thereunder; and third, to the
extent permitted by Section 2.10 of the Indenture, the balance, if any,
remaining thereafter, to the payment of the principal amount of, and premium, if
any, on this Note.
This Note is the Note referred to in the Indenture as the "2016
Lessor Note" and is being issued simultaneously with the "2020 Lessor Note". The
Indenture also permits the issuance of additional notes ("Additional Lessor
Notes"), as provided in Section 2.12 of the Indenture, and the several Notes may
be for varying principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of the Owner Trust
included in the Indenture Estate are pledged or mortgaged to Indenture Trustee
to the extent provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Note and all other Notes
issued and outstanding from time to time under the Indenture.
Reference is hereby made to the Indenture for a statement of the
rights of the holder of, and the nature and extent of the security for, this
Note and of the rights of, and the nature and extent of the security for, the
holders of the other Notes and of certain rights of the Owner Trust and the
Owner Participant, as well as for a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions the holder
hereof agrees by its acceptance of this Note.
This Note is subject to redemption, in whole or in part as
contemplated by the Indenture, as follows: (i) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued interest
on such principal amount to the Redemption Date, (ii) in the case of redemptions
under the circumstances set forth in Section 2.10(d)(i) of the Indenture, at a
price equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the Redemption Date, plus the Make-Whole
Premium, if any, and (iii) in the case of redemptions under the circumstances
set forth in Section 2.10(d)(ii) of the Indenture, at a price equal to the
principal amount of this Note then outstanding and accrued interest on such
principal amount to the Redemption Date, plus the Modified Make-Whole Premium,
if any; provided, however, that no such redemption shall be made until notice
thereof is given by the Indenture Trustee to the holder hereof as provided in
the Indenture.
In case either (i) a Regulatory Event of Loss under the Lease shall
occur or (ii) a termination of the Lease pursuant to Section 13.1 or 13.2 of the
Lease, where in connection with such termination the Lessee in each case
acquires the Undivided Interest pursuant to an assumption agreement, the
obligations of the Owner Trust under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Indenture, be assumed in whole by the Lessee
in
65
which case the Owner Trust shall be released and discharged from all such
obligations. In connection with such an assumption, the holder of this Note may
be required to exchange this Note for a new Note indicating that the Lessee is
the issuer thereof.
In case a Lease Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued interest
and premium, if any, thereon may, subject to certain rights of the Owner Trust
and the Owner Participant contained or referred to in the Indenture, be declared
or may become due and payable in the manner and with the effect provided in the
Indenture.
There shall be maintained at the Indenture Trustee Office a register
for the purpose of registering transfers and exchanges of Notes in the manner
provided in the Indenture. The transfer of this Note is registrable, as provided
in the Indenture, upon surrender of this Note for registration of transfer duly
endorsed or accompanied by a written instrument of transfer duly executed by or
on behalf of the registered holder hereof, together with the amount of any
applicable transfer taxes.
This Note shall be governed by the laws of the State of New York.
66
IN WITNESS WHEREOF, the Owner Trust has caused this Note to be duly
executed as of the date hereof.
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:____________________
Name:
Title:
67
This is one of the Notes referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as the Indenture Trustee
By:____________________
Name:
Title:
68
SCHEDULE 1 TO 2016 LESSOR NOTE
Schedule of Principal and Interest Payments
(% of original principal amount)
-------------------------------------------------------------------------
Scheduled Scheduled Principal
Principal Interest Amount
Payment Date Amount Payable Payable Paid Interest Paid
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
69
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
_________________________
_________________________
_________________________
(Please print or typewrite name and
address including zip code of assignee)
_________________________
Insert Taxpayer Identification No.
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing Bankers Trust Company its attorney to transfer said Note on the books
of the Issuer with full power of substitution in the premises.
Date:____________________
_________________________
(Signature of Transferor)
NOTE: The signature to this assignment must correspond with the name as written
upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.
70
EXHIBIT D
to
Indenture
FORM OF 2020 LESSOR NOTE
(▇▇▇▇▇▇▇▇)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN
VIOLATION OF SUCH ACT.
NONRECOURSE PROMISSORY NOTE NO. __, DUE IN A SERIES OF
INSTALLMENTS OF PRINCIPAL WITH FINAL PAYMENT DATE OF JULY 2, 2020.
Issued at: New York, New York
Issue Date: May 14, 1999
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1, a Delaware business trust (herein
called the "Owner Trust," which term includes any successor person under the
Indenture hereinafter referred to), hereby promises to pay to BANKERS TRUST
COMPANY, in its capacity as trustee of the Series 1999-B Pass Through Trust, or
its registered assigns, the principal sum of Fourteen Million Six Hundred
Seventy Two Thousand One Hundred Ninety Two and 10/100 Dollars ($14,672,192.10),
which is due and payable in a series of installments of principal with a final
payment date of July 2, 2020, as provided below, together with interest at the
rate of nine and 67/100 percent (9.67%) per annum on the principal remaining
unpaid from time to time.
Interest on the outstanding principal amount under this Note
(computed on the basis of a 360-day year of twelve 30-day months) shall be due
and payable in arrears at the rate specified above, commencing on January 2,
2000, and semi-annually on each January 2 and July 2 thereafter until the
principal of this Note is paid in full. The principal of this Note shall be due
and payable in installments on the respective dates and in the respective
amounts set forth in Schedule 1 attached in the column headed "Scheduled
Principal Amount Payable", provided, that the final installment of principal
shall be equal to the then unpaid balance of the principal of this Note.
Capitalized terms used in this Note which are not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture of Trust and
Security Agreement (▇▇▇▇▇▇▇▇ A-1), dated as of May 1, 1999 (the "Indenture"),
between the Owner Trust and Bankers Trust Company, as grantee (the "Indenture
Trustee").
Interest (computed on the basis of a 360-day year of twelve 30-day
months) on any overdue principal and premium, if any, and (to the extent
permitted by Applicable Law), on overdue interest shall be paid, on demand at
the Overdue Rate.
1
71
In the event any date on which a payment is due under this Note is
not a Business Day, then payment thereof shall be made on the next succeeding
Business Day with the same force and effect as if made on the date on which such
payment was due.
Except as otherwise specifically provided in the Indenture and in
the Participation Agreement, all payments of principal, premium, if any, and
interest to be made by the Indenture Trustee hereunder and under the Indenture
shall be made only from the Indenture Estate, and the Owner Trust shall have no
obligation for the payment thereof except to the extent that there shall be
sufficient income or proceeds from the Indenture Estate to make such payments in
accordance with the terms of Section 3 of the Indenture; and the Owner
Participant shall not have any obligation for payments in respect of this Note
or under the Indenture. The holder hereof, by its acceptance of this Note,
agrees that it will look solely to the income and proceeds from the Indenture
Estate to the extent available for distribution to the holder hereof, as herein
provided, and that, except as expressly provided in the Indenture or the
Participation Agreement, none of the Owner Participant, the Owner Trust, the
Lease Indenture Company or the Indenture Trustee is or shall be personally
liable to the holder hereof for any amounts payable under this Note or under the
Indenture, or for any performance to be rendered under the Indenture or any
Assigned Document or for any liability under the Indenture or any Assigned
Document.
The principal of and premium, if any, and interest on this Note
shall be paid by the Indenture Trustee, without any presentment or surrender of
this Note, except that, in the case of the final payment in respect of this
Note, this Note shall be surrendered to the Indenture Trustee, by mailing a
check for the amount then due and payable, in New York Clearing House funds, to
the Noteholder, at the last address of the Noteholder appearing on the Note
Register, or by whichever of the following methods has been specified by notice
from the Noteholder to the Indenture Trustee: (a) by crediting the amount to be
distributed to the Noteholder to an account maintained by the Noteholder with
the Indenture Trustee, (b) by making such payment to the Noteholder in
immediately available funds at the Indenture Trustee Office, or (c) by
transferring such amount in immediately available funds for the account of the
Noteholder to a banking institution having bank wire transfer facilities as
shall be specified by the Noteholder, such transfer to be subject to telephonic
confirmation of payment. All payments due with respect to this Note shall be
made (i) as soon as practicable prior to the close of business on the date the
amounts to be distributed by the Indenture Trustee are actually received by the
Indenture Trustee if such amounts are received by 2:00 p.m., New York City time,
on a Business Day or (ii) on the next succeeding Business Day if received after
such time or if received on any day other than a Business Day. Prior to due
presentment for registration of transfer of this Note, the Owner Trust and the
Indenture Trustee may deem and treat the Person in whose name this Note is
registered on the Note Register as the absolute owner and holder of this Note
for the purpose of receiving payment of all amounts payable with respect to this
Note and for all other purposes, and neither the Owner Trust nor the Indenture
Trustee shall be affected by any notice to the contrary. All payments made on
this Note in accordance with the provisions of this paragraph shall be valid and
effective to satisfy and discharge the liability on this Note to the extent of
the sums so paid and neither the Indenture Trustee nor the Owner Trust shall
have any liability in respect of such payment.
72
The holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied in the manner set forth in
Section 2.7 of the Indenture, which provides that each payment on the Note shall
be applied as follows: first, to the payment of accrued interest (including
interest on overdue principal and, to the extent permitted by Applicable Law,
overdue interest) on this Note to the date of such payment; second, to the
payment of the principal amount of, and premium, if any, on this Note then due
(including any overdue installments of principal) thereunder; and third, to the
extent permitted by Section 2.10 of the Indenture, the balance, if any,
remaining thereafter, to the payment of the principal amount of, and premium, if
any, on this Note.
This Note is the Note referred to in the Indenture as the "2020
Lessor Note" and is being issued simultaneously with the 2016 Lessor Note. The
Indenture also permits the issuance of additional notes ("Additional Lessor
Notes"), as provided in Section 2.12 of the Indenture, and the several Notes may
be for varying principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of the Owner Trust
included in the Indenture Estate are pledged or mortgaged to Indenture Trustee
to the extent provided in the Indenture as security for the payment of the
principal of and premium, if any, and interest on this Note and all other Notes
issued and outstanding from time to time under the Indenture.
Reference is hereby made to the Indenture for a statement of the
rights of the holder of, and the nature and extent of the security for, this
Note and of the rights of, and the nature and extent of the security for, the
holders of the other Notes and of certain rights of the Owner Trust and the
Owner Participant, as well as for a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions the holder
hereof agrees by its acceptance of this Note.
This Note is subject to redemption, in whole or in part as
contemplated by the Indenture, as follows: (i) in the case of redemptions under
the circumstances set forth in Section 2.10(a) of the Indenture, at a price
equal to the principal amount of this Note then outstanding and accrued interest
on such principal amount to the Redemption Date, (ii) in the case of redemptions
under the circumstances set forth in Section 2.10(d)(i) of the Indenture, at a
price equal to the principal amount of this Note then outstanding and accrued
interest on such principal amount to the Redemption Date, plus the Make-Whole
Premium, if any, and (iii) in the case of redemptions under the circumstances
set forth in Section 2.10(d)(ii) of the Indenture, at a price equal to the
principal amount of this Note then outstanding and accrued interest on such
principal amount to the Redemption Date, plus the Modified Make-Whole Premium,
if any; provided, however, that no such redemption shall be made until notice
thereof is given by the Indenture Trustee to the holder hereof as provided in
the Indenture.
In case either (i) a Regulatory Event of Loss under the Lease shall
occur or (ii) a termination of the Lease pursuant to Section 13.1 or 13.2 of the
Lease, where in connection with such termination the Lessee in each case
acquires the Undivided Interest pursuant to an assumption agreement, the
obligations of the Owner Trust under this Note may, subject to the conditions
set forth in Section 2.10(b) of the Indenture, be assumed in whole by the Lessee
in
73
which case the Owner Trust shall be released and discharged from all such
obligations. In connection with such an assumption, the holder of this Note may
be required to exchange this Note for a new Note indicating that the Lessee is
the issuer thereof.
In case a Lease Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note together with all accrued interest
and premium, if any, thereon may, subject to certain rights of the Owner Trust
and the Owner Participant contained or referred to in the Indenture, be declared
or may become due and payable in the manner and with the effect provided in the
Indenture.
There shall be maintained at the Indenture Trustee Office a register
for the purpose of registering transfers and exchanges of Notes in the manner
provided in the Indenture. The transfer of this Note is registrable, as provided
in the Indenture, upon surrender of this Note for registration of transfer duly
endorsed or accompanied by a written instrument of transfer duly executed by or
on behalf of the registered holder hereof, together with the amount of any
applicable transfer taxes.
This Note shall be governed by the laws of the State of New York.
74
IN WITNESS WHEREOF, the Owner Trust has caused this Note to be duly
executed as of the date hereof.
▇▇▇▇▇▇▇▇ FACILITY TRUST A-1,
as Owner Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:____________________
Name:
Title:
75
This is one of the Notes referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in
its individual capacity but
solely as the Indenture Trustee
By:____________________
Name:
Title:
76
SCHEDULE 1 TO 2020 LESSOR NOTE
Schedule of Principal and Interest Payments
(% of original principal amount)
---------------------------------------------------------------------------------
Scheduled Scheduled Principal
Principal Interest Amount
Payment Date Amount Payable Payable Paid Interest Paid
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
i
77
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
_________________________
_________________________
_________________________
(Please print or typewrite name and
address including zip code of assignee)
_________________________
Insert Taxpayer Identification No.
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing Bankers Trust Company its attorney to transfer said Note on the books
of the Issuer with full power of substitution in the premises.
Date:____________________
_________________________
(Signature of Transferor)
NOTE: The signature to this assignment must correspond with the name as written
upon the face of the within-mentioned instrument in every particular, without
alteration or any change whatsoever.
ii