When recorded, return to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ a ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
================================================================================
TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
Dated as of July 31, 1986
between
THE FIRST NATIONAL BANK OF BOSTON, not
in its individual capacity, but solely
as Owner Trustee under a Trust
Agreement dated as of July 31,
1986, with chase Manhattan
Realty Leasing Corporation
and
CHEMICAL BANK,
as Indenture Trustee
================================================================================
Sale and Leaseback of a 1.133333% Undivided Interest in Palo Verde Nuclear
Generating Station Unit 1 and a
.377777% Undivided Interest in Certain Common
Facilities
================================================================================
TABLE OF CONTENTS
Page
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ARTICLE I
CONSTRUCTION, GOVERNING LAW, INTERPRETATION
AND DEFINITIONS
SECTION 1.1 Governing Law ........................................... 2
SECTION 1.2 Headings and Table of Contents .......................... 2
SECTION 1.3 Definitions; Construction of
References; Schedules ................................... 3
SECTION 1.4 Disclosure of Beneficiaries ............................. 3
ARTICLE II
SECURITY
SECTION 2.1 Grant of Security Interest; Mortgage .................... 4
SECTION 2.2 Payments Under the Facility Lease ....................... 7
SECTION 2.3 Release of Lien on Lease Indenture Estate ............... 7
SECTION 2.4 Power of Attorney ....................................... 10
-i-
TABLE OF CONTENTS (Continued)
ARTICLE III
ISSUE, EXECUTION, AUTHENTICATION, FORM AND
REGISTRATION OF NOTES
Page
----
SECTION 3.1 Limitation on Notes .................................... 11
SECTION 3.2 Execution of Notes ..................................... 11
SECTION 3.3 Effect of Certificate of
Authentication ......................................... 12
SECTION 3.4 Creation of the Initial Series
Note; Aggregate Principal Amount,
Dating and Terms; Prerequisites to
Authentication and Delivery of the Initial
Series Note; Application of Proceeds ................... 12
SECTION 3.5 Additional Notes ....................................... 13
SECTION 3.6 Security for and Parity of Notes ....................... 16
SECTION 3.7 Source of Payments Limited ............................. 17
SECTION 3.8 Place and Medium of Payment ............................ 18
SECTION 3.9 Prepayment of Notes; Assumption by
Lessee; Notice of Assumption or Prepayment ............. 18
SECTION 3.10 Muti1ated, Destroyed, Lost or Stolen Notes ............. 21
-ii-
TABLE OF CONTENTS (Continued)
Page
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SECTION 3.11 Allocation of Principal and Interest .................. 22
ARTICLE IV
REGISTRATION, TRANSFER, EXCHANGE,
CANCELLATION AND OWNERSHIP OF NOTES
SECTION 4.1 Register of Notes ..................................... 22
SECTION 4.2 Registration of Transfer or
Exchange of Notes ..................................... 22
SECTION 4.3 Cancellation of Notes ................................. 23
SECTION 4.4 Limitation on Timing of Registration of Notes ......... 24
SECTION 4.5 Restrictions on Transfer Resulting
from Federal Securities Laws;
Legend ................................................ 24
SECTION 4.6 Charges upon Transfer or Exchange
of Notes .............................................. 25
SECTION 4.7 Inspection of Register of Notes ....................... 25
SECTION 4.8 Ownership of Notes .................................... 25
iii
TABLE OF CONTENTS (Continued)
Page
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ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME AND PROCEEDS FROM THE LEASE INDENTURE
ESTATE
SECTION 5.1 Basic Rent, Interest on Overdue
Installments of Basic Rent and
Prepayments of Interest ................................ 26
SECTION 5.2 Amounts Received as Result of
Event of Loss, Deemed Loss Event,
Exercise of Option to Terminate,
Exercise of Cure Option or
Occurrence of Special Purchase
Event .................................................. 28
SECTION 5.3 Amounts Received After, or Held
at Time of, Indenture Event of
Default under Section 6.2 .............................. 28
SECTION 5.4 Amounts Received for Which
Provision Is Made in a Transaction
Document ............................................... 30
SECTION 5.5 Amounts Received for Which No
provision Is Made ...................................... 30
SECTION 5.5 Payments to Owner Trustee .............................. 31
SECTION 5.7 Excepted Payments ...................................... 31
-iv-
TABLE OF CONTENTS (Continued)
Page
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ARTICLE VI
REPRESENTATIONS, WARANTIES AND COVENANTS OF
OWNER TRUSTEE; EVENTS OF DEFAULT; REMEDIES
OF THE INDENTURE TRUSTEE
SECTION 6.1 Representations, Warranties and
Covenants of Owner Trustee ............................. 32
SECTION 6.2 Indenture Events of Default ............................ 33
SECTION 6.3 Enforcement of Remedies ................................ 34
SECTION 6.4 Specific Remedies; Enforcement of
Claims without possession of Notes ..................... 35
SECTION 6.5 Rights and Remedies Cumulative ......................... 37
SECTION 6.6 Restoration of Rights and
Remedies ............................................... 37
SECTION 6.7 Waiver of Past Defaults ................................ 38
SECTION 6.8 Right of Owner Trustee to Pay
Rent; Note Purchase; Substitute
Lessee ................................................. 38
SECTION 6.9 Further Assurances ..................................... 40
SECTION 6.10 Right of Indenture Trustee To
Perform Covenants, etc. ................................ 41
-v-
TABLE OF CONTENTS (Continued)
Page
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SECTION 6.11 Certain Other Rights of the Owner
Trustee ................................................ 41
ARTICLE VII
CERTAIN DUTIES OF THE OWNER TRUSTEE AND THE
INDENTURE TRUSTEE
SECTION 7.1 Duties in Respect of Events of
Default, Deemed Loss Events and
Events of Loss; Acceleration of
Maturity ............................................... 42
SECTION 7.2 Duties in Respect of Matters
Specified in Directive ................................. 44
SECTION 7.3 Indemnification ........................................ 44
SECTION 7.4 Limitations on Duties; Discharge
of Certain Liens Resulting from
Claims Against Indenture Trustee ....................... 44
SECTION 7.5 Restrictions on Dealing with Lease
Indenture Estate ....................................... 45
SECTION 7.6 Filing of Financing Statements and
Continuation Statements ................................ 45
-vi-
TABLE OF CONTENTS (Continued)
Page
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ARTICLE VIII
CONCERNING THE OWNER TRUSTEE AND THE
INDENTURE TRUSTEE
SECTION 8.1 Acceptance of Trusts; Standard of
Care .................................................... 47
SECTION 8.2 No Duties of Maintenance, Etc ........................... 48
SECTION 8.3 Representations and Warranties of
Indenture Trustee and the Owner Trustee ................. 48
SECTION 8.4 Moneys Held in Trust;
Non-Segregation of Moneys ............................... 48
SECTION 8.5 Reliance on Writings, Use of
Agents, Etc.. ........................................... 49
SECTION 8.6 Indenture Trustee to Act Solely as
Trustee ................................................. 50
SECTION 8.7 Limitation on Rights Against
Registered Holders, the Owner
Trustee or Lease Indenture Estate ....................... 51
SECTION 8.8 Investment of Certain Payments
Held by the Indenture Trustee ............................ 51
SECTION 8.9 No Responsibility for Recitals,
etc. ..................................................... 52
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TABLE OF CONTENTS (Continued)
Page
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SECTION 8.10 Indenture Trustee May Engage in
Certain Transactions .................................... 52
SECTION 8.11 Construction of Ambiguous
Provisions .............................................. 52
ARTICLE IX
SUCCESSOR TRUSTEES
SECTION 9.1 Resignation and Removal of
Indenture Trustee; Appointment of
Successor ............................................... 53
ARTICLE X
SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE
AND OTHER DOCUNENTS
SECTION 10.1 Supplements, Amendments and
Modifications to This Indenture
Without Consent of Holders of
Notes ................................................... 55
SECTION 10.2 Supplements and Amendments to this
Indenture and the Facility Lease
With Consent of Holders of Notes ........................ 56
SECTION 10.3 Certain Limitations on Supplements
and Amendments. ......................................... 57
-viii-
TABLE OF CONTENTS (Continued)
Page
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SECTION 10.4 Directive Need Not Specify
Particular Form of Supplement or
Amendment .............................................. 58
SECTION 10.5 Trustee to Furnish Copies of
Supplement or Amendment ................................ 58
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Moneys for Payments in Respect of
Notes to be Held in Trust .............................. 59
SECTION 11.2 Disposition of Moneys Held for
Payments of Notes ...................................... 59
SECTION 11.3 Transfers Not to Affect Indenture
or Trusts .............................................. 60
SECTION 11.4 Binding Effect of Sale of Lease
Indenture Estate ....................................... 60
SECTION 11.5 Limitation as to Enforcement of
Rights, Remedies and Claims ............................ 60
SECTION 11.6 Notices ................................................ 61
SECTION 11.7 Separability of Provisions ............................. 61
SECTION 11.8 Benefit of Parties, Successors and
Assigns ................................................ 61
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6091.50.2831.57:1
TABLE OF CONTENTS (Continued)
Page
SECTION 11.9 Survival of Representations and Warranties ............. 62
SECTION 11.10 Bankruptcy of the Owner Trustee ........................ 62
SECTION 11.11 Bankruptcy of the Owner Participant .................... 63
SECTION 11.12 Counterpart Execution .................................. 63
SECTION 11.13 Dating of Indenture .................................... 63
Schedule 1 Undivided Interest Description
Schedule 2 Real Estate Interest Description
Exhibit A Form of Initial Series Note
Exhibit B Form of Assumption Agreement
Exhibit C Form of Undivided Interest Indenture Supplement
Appendix A Definitions
-x-
TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
dated as of July 31, 1986, between THE FIRST NATIONAL BANK OF BOSTON, a national
banking association (FNB), not in its individual capacity, but solely as trustee
(the Owner Trustee) under a Trust Agreement dated as of July 31, 1986 between
FNB, whose address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
Chase Manhattan Realty Leasing Corporation, and CHEMICAL BANK, a New York
banking corporation (the Indenture Trustee), whole address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Owner Trustee has entered into a participation Agreement,
dated as of July 31, 1986 among the Owner Participant, First PV Funding
Corporation, a Delaware corporation, Public Service Company of New Mexico, a New
Mexico corporation, and the Indenture Trustee;
WHEREAS, the Owner Trustee, acting on behalf of the Owner Participant1
pursuant to the Trust Agreement and the Participation Agreement, intend. to
purchase the Undivided Interest and the Real Property Interest from Public
Service Company of New Mexico and lease the Undivided Interest and the Real
Property Interest to Public Service Company of New Mexico pursuant to the
Facility Lease;
WHEREAS, in order to finance a portion of the Purchase Price of the
Undivided Interest, the Owner Trustee desires to issue its promissory note
hereunder with such promissory note to be substantially in the form of Exhibit A
hereto;
WHEREAS, in order to finance all or a portion of the Supplemental
Financing Amount of Capital Improvements and to refund Notes of any series
previously issued, the Owner Trustee may desire to issue additional promissory
notes hereunder (the Additional Notes) secured on a pari passu basis with other
Notes Outstanding from time to time;
6091.50.2831.57:1
WHEREAS, in order to secure the obligations referred to herein, the
Owner Trustee desires to grant to the Indenture Trustee the security interest
herein provided and the parties hereto desire that this Indenture be regarded as
a "security agreement" and as a "financing statement" for such security
agreement under the uniform commercial code;
NOW, INEREFORE, in consideration of the premises, of the acceptance by
the Indenture Trustee of the trusts hereby created and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged the parties hereto agree as follows:
ARTICLE I
CONSTRUCTION, GOVERNING LAW,
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Governing Law.
This Indenture (i) is being executed and delivered in the State
of flew York, (ii) shall be deemed to be a contract made in such State and (iii)
for all purposes shall be construed in accordance with and governed by the laws
of the State of New York, except to the extent that the laws of the State of
Arizona are mandatorily applicable hereto.
SECTION 1.2. Headings and Table of Contents.
The division of this Indenture into articles and sections, the
provision of a table of contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Indenture.
-2-
6091.50.2831.57:1
SECTION 1.3. Definitions; Construction of References; Schedules.
In this Indenture, unless the context otherwise requires:
(a) the term this Indenture means this instrument, together
with all exhibits, appendices and schedules hereto, as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto pursuant to the provisions hereof;
(b) all references in this instrument to designated Articles,
Sections and other subdivisions are to designated Articles, Sections and other
subdivisions of this instrument unless otherwise indicated;
(a) all accounting terms not otherwise defined herein shall
have the meanings assigned to them in accordance with generally accepted
accounting principles; and
(d) capitalized terms used herein which are not otherwise
defined herein shall have the meanings set forth in Appendix A hereto, and the
rules of construction set forth in Appendix A hereto shall be applicable hereto.
(e) Attached as Schedule 1 hereto is a description of the
Undivided Interest and attached as schedule 2 hereto is a description of the
Real Property Interest.
SECTION 1.4. Disclosure of Beneficiaries.
Pursuant to Arizona Revised Statutes Section 33-401, (i) the
beneficiary of the Trust Agreement is chase Manhattan Realty Leasing
Corporation, a New York corporation, whose address is One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Leasing Administrator and
(ii) the beneficiary of this Indenture is the Holder of the Notes, First PV
-3-
6091.50.2831.57:1
Funding corporation, whose address isCorporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and, by pledge and assignment, Chemical Bank,
as trustee under the Collateral Trust Indenture, whose address is ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Attention of Corporate Trustee Administration.
Copies of the Trust Agreement and this Indenture are available for inspection at
the Indenture Trustee's office.
ARTICLE II
SECURITY
SECTION 2.1. Grant of Security Interests Mortgage.
As security for the due and punctual payment of the principal of
and premium, if any, and interest on the Notes according to their respective
terms and effect and the performance and observance by the Owner Trustee of all
the covenants and agreements made by it or on its behalf in the Notes, the
Participation Agreement and this Indenture, the Owner Trustee does by its
execution and delivery hereof hereby grant a security interest in and grant,
bargain, convey, warrant, assign, transfer, mortgage, pledge and set over unto
the Indenture Trustee, and to its successors and assigns in trust, the following
(the Lease Indenture Estate):
(1) all right, title and interest of the Owner Trustee in, to
and under the Facility Lease recorded on August 1, 1986 as
Instrument No. 86- ___________ , records of Maricopa County,
Arizona, to the extent, and only to the extent, constituting
Rent (including, but without limitation, Basic Rent, payments of
Casualty Value, Termination value and Special Casualty value,
and payments under and pursuant to Sections 13(c) and 16 of the
6091.50.2831.57:1
-4-
Facility Lease, excluding all Excepted Payments) (the Assigned
Payments), together with all rights, powers and remedies on the
part of the Owner Trustee arising under the Facility Lease to
demand, collect or receive the Assigned Payments;
(2) all moneys and securities deposited or required to be
deposited with the Indenture Trustee pursuant to any term of
this Indenture and held or required to be held by the Indenture
Trustee hereunder;
(3) all profits, revenues and other income of all property from
time to time subjected to the lien of this Indenture, and all
right, title and interest of every nature whatsoever of the
Owner Trustee in and to the same and every part thereof;
(4) all right, title and interest of the Owner Trustee in and
to any right to restitution from the Lessee in respect of any
determination of invalidity of the Facility Lease; and
(5) all proceeds of the foregoing;
but excluding, however, from the Lease Indenture Estate any and all Excepted
Payments; and subject, however, to (i) the terms and provisions of this
Indenture and (ii) the rights of the Lessee under the Facility Lease.
To the extent that any portion of the Lease Indenture Estate
constitutes fixtures or real property, this Indenture constitutes a realty
mortgage and an assignment of rents with respect to all such items of real
property and in addition to all other rights or remedies set forth in this
Indenture, or otherwise available under Applicable Law, the Indenture Trustee
shall have all of the rights, remedies and benefits of a mortgagee of real
property under Applicable Law, including, without limitation, the rights and
remedies pursuant to Arizona Revised Statutes 5 33-702.3, and the Owner Trustee
shall be deemed a mortgagor with respect to such items.
-5-
TO HAVE AND TO HOLD all the aforesaid properties, rights and
interests unto the Indenture Trustee, its successors and assigns forever, but in
trust, nevertheless, for the use and purposes and with the power and authority
and subject to the terms and conditions mentioned and set forth in this
Indenture.
UPON CONDITION that, unless and until an indenture Event of
Default shall have occurred and be continuing, the Owner Trustee shall be
permitted, to the exclusion of the Indenture Trustee, to possess and use the
Lease Indenture Estate and exercise all rights with respect thereto and, without
limitation of the foregoing;, the Owner Trustee may exercise all of its rights
under the Facility Lease to the same extent as if its right, title and interest
therein had not been assigned to the Indenture Trustee to the extent set forth
above, except that the Indenture Trustee shall receive all payments of Assigned
Payments and all moneys and securities required to be held by or deposited with
the Indenture Trustee hereunder.
It is expressly agreed that, anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain obligated to the Lessee
under the Facility Lease to perform all of the Owner Trustee's obligations
thereunder in accordance with and pursuant to the terms and provisions thereof,
and the Indenture Trustee shall not be required or obligated in any manner,
except as expressly provided herein, to perform or fulfill any obligations of
the Owner Trustee under the Facility Lease or to make any payment, or to make
any inquiry as to the nature or sufficiency of any payment received by it, or to
present or file any claim, or to take any action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
The Owner Trustee hereby warrants and represents that it has not
assigned or pledged any of its right, title or interest in and to the Lease
Indenture Estate to anyone other than the Indenture Trustee.
-6-
SECTION 2.2. Payments Under the Facility Lease.
The Facility Lease provides that (i) all payments constituting
Assigned Payments shall be made to the Indenture Trustee at the Indenture
Trustee's Office, (ii) all other payment. other than Excepted Payments shall be
made to the Lessor at such address as the Lessor may direct by notice in writing
to the Lessee, and (iii) all Excepted Payments shall be made to the Person
entitled to receive such payments. The Owner Trustee agrees that, so long as any
Notes shall be outstanding hereunder, all payments described in clause (i) above
shall be directed to be made to the Indenture Trustee or in accordance with the
Indenture Trustee's instruction and that if it should receive any such payments
or any proceeds for or with respect to the Lease Indenture Estate or otherwise
constituting part of the Lease Indenture Estate, 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 Trustee or otherwise) with respect to
the Lease Indenture Estate in the manner provided in section 3.11 and Article V
hereof.
SECTION 2.3. Release of Lien an Lease Indenture Estate.
(a) Upon receiving evidence satisfactory to the Indenture
Trustee that (i) it has received, or provision has been made in accordance with
paragraph (C) hereof for, full payment of all principal of and premium, if any,
and interest on the Notes and any other sums payable to the Indenture Trustee
and the Holders of the Notes under this Indenture or the Facility Lease, and
(ii) all Trustee's Expenses shall have been paid in full or provision
satisfactory to the Indenture Trustee shall have been made for such payment,
(A) the security interest and all other estate and rights
granted by this Indenture shall cease and become null and void and all
of the property, rights and interests included in the Lease Indenture
Estate shall revert to and revest in the owner Trustee without any
other act or formality whatsoever, and
-7-
(B) the Indenture Trustee shall, at the request of the Owner
Trustee, execute and deliver to the Owner Trustee such termination
statements, releases or other instruments presented to the Indenture
Trustee by or at the direction of the Owner Trustee as shall be
requisite to evidence the satisfaction and discharge of this Indenture
and the lien hereby created with respect to the Lease Indenture Estate,
to release or reconvey to the Owner Trustee or as directed by the Owner
Trustee all the Lease Indenture Estate, freed and discharged from the
provisions herein contained with respect thereto, and to release the
Owner Trustee from its covenants herein contained.
(b) upon receipt by the Indenture Trustee of the Assumption
Agreement and other documents and opinions described in Section 3.9(b) hereof,
(i) the security interest and all other estate and rights granted by this
Indenture by or on behalf of the Owner Trustee shall cease and become null and
void and all of the property, rights and interests included in the Lease
Indenture Estate shall revert to and revest in the Owner Trustee without any
other act or formality whatsoever and (ii) the Indenture Trustee shall, at the
request of the Owner Trustee, execute and deliver to the Owner Trustee such
termination statements, releases or other instruments presented to the Indenture
Trustee by or at the direction of the Owner Trustee as shall be requisite to
evidence the satisfaction and discharge of this Indenture as to the Owner
Trustee and the lien hereby created with respect to the Lease Indenture Estate,
to release or reconvey to the Owner Trustee or as directed by the Owner Trustee
all the Lease Indenture Estate, freed and discharged from the provisions herein
contained with respect thereto, and to release the Owner Trustee from its
covenants herein contained.
-8-
(c) 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 2.3 if (i) there shall have been deposited with the
Indenture Trustee either moneys in an amount which shall be sufficient, or
direct obligations of or obligations the principal of and interest on which are
unconditionally guaranteed by the united States of America or certificates of an
ownership interest in the principal of or interest on obligations of or
guaranteed as to principal and interest by the united States of America (Federal
Securities), in each case which shall not contain provisions permitting the
redemption thereof at the option of the issuer, 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 sub clause (i) above has been made
with the Indenture Trustee and that said Note is deemed to have been paid in
accordance with this section 2.3 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 Federal Securities nor
moneys deposited with the Indenture Trustee pursuant to this Section 2.3 or
principal or interest payments on any such Federal Securities 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
Federal Securities deposited with the Indenture Trustee, shall be reinvested
pursuant to Section 8.8 hereof in Federal Securities. At such time as any Note
-9-
shall be deemed paid as aforesaid, it shall no longer be secured by or entitled
to the benefits of the Lease Indenture Estate or this Indenture, except that
such Note shall be entitled to the benefits of the portions of the Lease
Indenture Estate described in Granting clauses (2), (3) and (5) , to the extent
such portions relate to such moneys or Federal securities deposited with the
Indenture Trustee.
(d) So long as any Note as to which this Indenture has been
discharged remains unpaid, this Indenture shall continue in effect with respect
to such Note solely with respect to rights of registration of transfer, exchange
or replacement of such Note, rights to receive payment of the principal thereof
and premium, if any, and interest thereon in accordance with the terms of this
Indenture from such deposited funds or the proceeds of or interest on such
Federal securities and the correlative rights and responsibilities of the
Indenture Trustee; provided, however, that, following such discharge, no claim
for payment of principal of or premium, if any, or interest on such Note shall
be made against the Owner Trustee or the Lease Indenture Estate other than as
provided in this Section; provided, further, that the Owner Trustee, following
such discharge, shall be released from any further duties or obligations under
this Indenture and, except as expressly provided therein, any other Transaction
Document.
SECTION 2.4. Power of Attorney.
Subject to the other terms of this Indenture, the Owner Trustee
hereby appoints the Indenture Trustee the Owner Trustee's attorney in-fact,
irrevocably, with full power of substitution, to collect, ask, require, demand,
receive and give acquittance for any and all moneys and claims for moneys due
and to become due to the Owner Trustee under or arising out of the Lease
Indenture Estate, to endorse any checks or other instruments or orders in
connection therewith, and to take any action (including the filing of financing
statements or other documents) or institute any proceedings which the Indenture
-10-
Trustee may deem to be necessary or appropriate to protect and preserve the
interest of the Indenture Trustee in the Lease Indenture Estate. Prior to any
exercise by it (acting as attorney-in-fact for the Owner Trustee) of the powers,
authority or rights granted by this section 2.4, the Indenture Trustee will give
three Business Day's prior written notice to the Owner Trustee and the Owner
Participant.
ARTICLE III
ISSUE, EXECUTION, AUTHENTICATION,
FORM AND REGISTRATION OF NOTES
SECTION 3.1. Limitation on Notes,
No Notes may be issued under the provisions of1 or become
secured by, this Indenture except in accordance with the provisions of this
Article III. No Note shall be issued in an original principal amount of less
than $5,000.
SECTION 3.2. Execution of Notes.
All Notes shall be manually executed on behalf of the Owner
Trustee by one of its Responsible Officers. In case any Responsible Officer of
the Owner Trustee who shall have executed any of the Notes shall cease to be
such a Responsible Officer before such Notes so executed shall have been
authenticated by the Indenture Trustee and delivered or disposed of by the Owner
Trustee, such Notes nevertheless may be authenticated and delivered or disposed
of as though the person who executed such Notes had not ceased to be such a
Responsible Officer of the Owner Trustee; and any Note may be executed on behalf
of the Owner Trustee by such person as, at the actual time of execution of such
Note, shall be a Responsible Officer of the Owner Trustee, although at the date
of such Note any such person was not such a Responsible Officer.
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SECTION 3.3. Effect of certificate of Authentication
Only such Notes as shall bear thereon a certificate of
authentication substantially in the following form manually executed by the
Indenture Trustee shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate of authentication of the
Indenture Trustee upon any Note executed by the Owner Trustee shall be
conclusive evidence that the Note so authenticated was duly issued,
authenticated and delivered under this Indenture:
This Note is one of the series of Notes referred to therein
and in the within mentioned Indenture.
CHEMICAL BANK,
as Indenture Trustee
By
---------------------------
Authorized Officer
SECTION 3.4. Creation of the Initial Series Note; Aggregate
Principal Amount, Dating and Terms; prerequisites to Authentication and Delivery
of the Initial Series Note; Application of Proceeds.
(a) There is hereby created and established a separate series
of Notes of the Owner Trustee designated: "Nonrecourse Promissory Note, Initial
Series", which will be substantially in the form of Exhibit A hereto, and is
herein referred to as the Initial Series Note.
(b) Subject to the provisions of Section 3.10 hereof, the
aggregate principal amount of the Initial Series Note issued by the Owner
Trustee and authenticated and delivered by the Indenture Trustee hereunder shall
not exceed $40,000,000
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(c) The Initial Series Note, subject to paragraph (e) of this
section 3.4, shall be executed and issued by the Owner Trustee and authenticated
and delivered by the Indenture Trustee on the date and to the Person specified
by the Owner Trustee in its request and authorization for issuance, shall be
dated the date specified by the Owner Trustee in its request and authorization
for issuance, and shall be in the form of a registered Note payable to the
Person designated in the Owner Trustee's request and authorization for issuance
or its registered assigns.
(d) The Initial series Note shall bear interest on the
principal amount thereof from time to time outstanding from the date thereof
until paid at the rate or the rates of interest set forth in the form of the
Initial Series Note. The principal amount of the Initial Series Note shall be
payable as set forth in the schedule of principal payments attached thereto.
Installments of interest on and principal of the Initial Series Note shall be
due and payable on the dates specified in the form of Initial Series Note.
(e) The Indenture Trustee shall authenticate the Initial
series Note and deliver the Initial Series Note to the Person designated by the
Owner Trustee in the request and authorization for issuance in respect of the
Initial series Note in accordance with the provisions of this section 3.4.
(f) Upon receipt of the proceeds of the Initial series Note,
the Indenture Trustee shall immediately transfer the same to, or pursuant to the
direction of, the Owner Trustee, all as set forth in the request and
authorization for issuance submitted by the Owner Trustee to the Indenture
Trustee.
SICTION 3.5. Additional Notes.
(1) Subject to section 3.6 hereof1 Additional Notes of the
Owner Trustee may be issued under and secured by this Indenture, at any time or
from time to time, in addition to the Initial Series Note and subject to the
conditions hereinafter provided in this Section, for cash in the amount of the
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original principal amount of such Additional Notes, for the purpose of (i)
refunding any previously issued series of Notes, in whole or in part and/or (ii)
providing funds for the payment of all or any portion of the Supplemental
Financing Amount relating to Capital Improvements made or installed from time to
time pursuant to the Facility Lease; provided, however, that (x} in the case of
Notes issued for the purposes set forth in clause (ii) of this section 3.5, no
Note shall be issued by the Owner Trustee pursuant to this Section 3.5 unless
such Notes may be pledged in accordance with Section 2.15(b) of the collateral
Trust Indenture and serve as the basis for Additional Bonds and (y) in the case
of Notes issued for the purposes set forth in clause (i) of this. section 3.5,
no Note shall be issued by the Owner Trustee pursuant to this section 3.5 unless
section 2(c) of the participation Agreement (if applicable) shall have been
complied with.
(2) Before any Additional Notes shall be issued under the
provisions of this Section 3.5, the owner Trustee shall have received from the
Owner participant, and delivered to the Indenture Trustee not less than 2
Business Days nor more than 30 Business Days prior to the proposed date of
issuance of such Additional Notes as set forth in the below mentioned request
and authorization, a request and authorization to issue Additional Notes, which
request and authorization shall include the amount of such Additional Notes, the
date of issuance of such Additional Notes and details with respect thereto which
are not inconsistent with this section. Additional Notes shall have a
designation so as to distinguish such Additional Notes from the Initial series
Note but otherwise shall be substantially similar in terms to the Initial Series
Note, shall specify maturity dates, rank pari passu with all Notes then
Outstanding, be dated their respective dates of authentication, bear interest at
such rates (which may be fixed or floating) as shall be indicated in the
aforementioned request and authorization, and shall be stated to be payable by
their terms not later than the last day of the Basic Lease Term.
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(3) Except as to any differences in the maturity dates and
amortization schedules of the Additional Notes or the rate or rates of interest
thereon and the date or dates such interest is payable or the provisions for
redemption with respect thereto, if any, such Additional Notes shall be on a
parity with, and shall be entitled to the same benefits and security of this
Indenture as, other Notes issued pursuant to the terms hereof.
(4) The terms, conditions and designations of such Additional
Notes (which shall be consistent with this Indenture) shall be set forth in an
indenture supplemental to this Indenture executed by the Owner Trustee and the
Indenture Trustee. Such Additional Notes shall be executed as provided in
section 3.2 and deposited with the Indenture Trustee for authentication, but
before such Additional Notes shall be authenticated and delivered by the
Indenture Trustee there shall be filed with the Indenture Trustee, in addition
to the other documents and certificates required by this section 3.5, the
following, all of which shall be dated as of the date of the supplemental
indenture:
(a) a copy of such supplemental indenture (which shall include
the form of such series of Notes in respect thereof);
(b) a certificate of a Responsible Officer of the Owner
Trustee (i) stating that to the best of his knowledge no Default or Event of
Default or Indenture Event of Default has occurred and is continuing, (ii)
stating that the conditions in respect of the issuance of such additional series
of Notes contained in this Section 3.5 have been satisfied, (iii) stating that
payments pursuant to the Facility Lease of Basic Rent, Casualty value, Special
Casualty value and Termination value and of amounts in respect of the exercise
of the Cure Option and the occurrence of special Purchase Event are sufficient
to pay all the Outstanding Notes, after taking into account the issuance of such
Additional Notes and any related redemption, and (iv)1 in the case of Notes
issued for the purpose set forth in clause (ii) of Section 3.5(1), stating that
all conditions to the related supplemental Financing as set forth in Section
8(f) of the Facility Lease have been satisfied or waived in accordance with such
Section 8(f);
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(c) such additional documents, certificates and opinions as
shall be reasonably requested by, and acceptable to, the Owner Trustee and the
Indenture Trustee.
(d) a request and authorization to the Indenture Trustee by or
on behalf of the Owner Trustee to authenticate and deliver such Additional Notes
to or upon the order of the Person or Persons noted in such request at the
address set forth therein, and in such principal amounts as are stated therein,
upon payment to the Indenture Trustee, but for the account of the Owner Trustee,
of the sum or sums specified in such request and authorization; and
(e) an opinion of counsel to the effect that the conditions
precedent required under this Indenture for the issuance of such Additional
Notes have been complied with.
When the documents referred to in the foregoing clauses (a)
through (e) above shall have been filed with the Indenture Trustee and when the
Additional Notes described in the above-mentioned order and authorization shall
have been executed and authenticated as required by this Indenture, the
Indenture Trustee shall deliver such Additional Notes in the manner described in
clause (d) above, but only upon payment to the Indenture Trustee of the sum or
sums specified in such request and authorization.
SECTION 3.6. 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. The
maximum principal amount of Notes outstanding and secured by this Indenture
shall be $100,000,000.
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SECTION 3.7. Source of Payments Limited.
All payments to be made by the Owner Trustee under this
Indenture or on the Notes shall be made only from the Lease Indenture Estate and
the Trust Estate. Each Holder of a Note, by its acceptance of such Note, and the
Indenture Trustee agree that they will look solely to the Trust Estate and the
income and proceeds from the Lease Indenture Estate to the extant available for
distribution to such Holder or the Indenture Trustee as herein provided and that
neither the Owner Participant nor, except as expressly provided in this
Indenture, the Owner Trustee nor the Indenture Trustee, shall be personally
liable to such Holder of a ▇▇▇▇ or the Indenture Trustee, as the case may be,
for any amounts payable hereunder or under such Note; provided, however, that in
the event that the Lessee shall assume all the obligations and liabilities of
the Owner Trustee hereunder and under the Notes pursuant to section 3.9(b), then
all payments to be made under this Indenture and the Notes shall be mad. only
from payments made by the Lessee under the Notes in accordance with the
Assumption Agreement referred to in section 3.9(b) and each Holder of a Note and
the Indenture Trustee agree that in such event they will look solely to the
Lessee for such payment. Nothing herein contained shall be interpreted as
affecting the duties and obligations of the Indenture Trustee set forth in
section 7.4 hereof.
In furtherance of the foregoing, to the fullest extent
permitted by law, each Holder of a Note (and each assignee of such Person), by
its acceptance thereof, and the Indenture Trustee agree, as a condition to the
Notes being secured under this Indenture, that neither such Holder nor the
Indenture Trustee will exercise any statutory right to negate the agreements set
forth in this Section 3.7.
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SECTION 3.8. Place and Medium of Payment.
The principal of and premium, if any, and interest on each
Note shall be payable at the Indenture Trustee's Office in immediately available
funds in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
Notwithstanding the foregoing or any provision in any Note to the contrary, if
so requested by the Holder of any Note, by written notice to the Indenture
Trustee, all amounts (other than the final payment) payable with respect to such
obligation shall be paid by crediting the amount to be distributed to such
Holder to an account maintained by such Holder with the Indenture Trustee or by
the Indenture Trustee's transferring such amount by wire, with such wire
transfer to be initiated by such time as to permit, to the extent practicable,
oral confirmation thereof (specifying the wire number) to be given no later than
12:00 noon New York City time on the date scheduled for payment, but only to the
extent of funds available for such wire transfer, to such other bank in the
United States having wire transfer facilities, including a Federal Reserve lank,
as shall have been specified in such notice, for credit to the account of such
Holder maintained at such bank, any such credit or transfer pursuant to this
Section 3.8 to be in immediately available funds, without any presentment or
surrender of such Note. Final payment of any such Note shall be made only
against surrender of such Note at the Indenture Trustee's Office.
SECTION 3.9. Prepayment of Notes; Assumption by Lessee; Notice
of Assumption or Prepayment.
(a) Notes shall be subject to prepayment (other than through
application of the installment payments on such Notes) from time to time only as
provided in this Indenture and as otherwise specifically provided, with respect
to Notes of a particular series, in such Notes.
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(b) In the event of the occurrence of a Deemed Loss Event or
Event of Loss or exercise of the Cure Option, and upon receipt by the Indenture
Trustee of the documents listed below, all the obligations and liabilities of
the Owner Trustee hereunder and under the Notes shall be assumed by the Lessee
and the Owner Trustee shall be released and discharged without further act or
formality whatsoever from all obligations and liabilities hereunder and under
the Notes:
(1) A duly executed Assumption Agreement substantially in the
form of Exhibit a to this Indenture;
(2) an opinion of counsel to the Lessee, addressed to the
Indenture Trustee and the Holders of the outstanding Notes, to
the effect that the conditions precedent required by this
Indenture for such assumption have been complied with, that the
Assumption Agreement has been duly authorized, executed and
delivered on behalf of the Lessee, that no Governmental Action
is necessary or required in connection therewith (or if any
such governmental Action is necessary or required, that the
same has been duly obtained and is in full force and effect),
and that the Assumption Agreement is a legal, valid and binding
agreement and obligation of the Lessee, enforceable in
accordance with its terms (except as limited by bankruptcy,
insolvency or similar law. of general application affecting the
enforcement of creditors' rights generally and equitable
principles);
(3) copies of all governmental Actions referred to in such
opinion;
(4) an indenture supplemental to this Indenture which shall,
among other things, confirm the release of the Owner Trustee
and the Lease Indenture Estate thereby effected and contain
provisions appropriately amending references to the Facility
Lease in this Indenture;
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(5) a certificate of a Responsible officer of the Lessee
stating that, to the best of his knowledge, ( i ) the
conditions precedent required by this Indenture for such
assumption have been complied with, (ii) no Indenture Event of
Default has occurred and is continuing, (iii) such assumption
is permitted by the provisions of the Lessee's Articles of
Incorporation and By-Laws and (iv) the Lessee is not insolvent
within the meaning of any applicable preferential transfer,
fraudulent conveyance or bankruptcy law; and
(6) a certificate of a Responsible Officer of the Owner Trustee
stating that, to the best of his knowledge, no Indenture Event
of Default has occurred and is continuing.
(C) Notice of any assumption or prepayment of Notes shall be
given to the registered Holders of the Notes which have been assumed or are to
be prepaid (and any assignee of a registered Holder which has given the
Indenture Trustee written notice of such assignment) as promptly as practicable
after the Indenture Trustee is notified thereof, and, in the case of prepayment,
in no event later than (i) 30 days before the date fixed for prepayment
(provided the Indenture Trustee receives such notification at least three
Business flays before such 30th day) in the event of the exercise by the Owner
Trustee of its option to terminate the Facility Lease pursuant to section 14
thereof or (ii) one day before the date fixed for prepayment in the event of the
exercise by the Lessee of the special Purchase Event pursuant to Section 13(c)
of the Facility Lease.
(d) If the assumption described in paragraph (b) above has not
occurred, then, as required by Section 9(j) of the Facility Lease, not less than
2 Business flays prior to the date on which the Lessee is required to make the
payments specified in Section 9(c) or 9(d) of the Facility Lease, the Owner
Trustee will cause the undivided Interest and the Real Property Interest to be
subjected to the lien of this Indenture by executing and delivering to the
Indenture Trustee an undivided Interest Indenture supplement substantially in
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the form of Exhibit C to this Indenture. Subject to Section 10.3 hereof, the
Indenture Trustee shall execute and accept delivery from the Owner Trustee of
the undivided Interest Indenture supplement.
SECTION 3.10. Mutilated, Destroyed, Lost or Stolen Notes.
If any Note shall become mutilated or shall be destroyed, lost
or stolen, the Owner Trustee shall, upon the written request of the Holder of
such Note, execute, and the Indenture Trustee shall authenticate and deliver in
replacement thereof, a new Note, payable in the same original principal amount
and dated the same date and of the same series as the Note so mutilated,
destroyed, lost or stolen. The Indenture Trustee shall make a notation on each
new Note of the amount of all payments of principal theretofore made on the Note
so mutilated, destroyed, lost or stolen and the date to which interest on such
old Note has been paid. If the Note being replaced has been mutilated, such Note
shall be delivered to the Indenture Trustee who shall then deliver a certificate
of destruction of the type required by section 4.3 hereof. If the Note being
replaced has been destroyed, lost or stolen, the Holder of such Note shall
furnish to the Lessee, the Owner Trustee and the Indenture Trustee a bond or
surety agreement of such Holder as shall be satisfactory to them to save the
Lessee, the Owner Trustee, the Indenture Trustee, the Trust Estate and the Lease
Indenture Estate harmless from any loss, however remote, including claims for
principal of, and premium, if any, and interest on the purportedly destroyed,
lost or stolen Note, together with evidence satisfactory to the Lessee, the
Owner Trustee and the Indenture Trustee of the destruction, loss or theft of
such Note and of the ownership thereof, provided, however, that if the Holder of
such Note is the Collateral Trust Trustee, the unsecured written undertaking of
the Collateral Trust Trustee, in its individual capacity, shall be sufficient
indemnity for purposes of this Section.
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SECTION 3.11. Allocation of Principal and Interest.
in the case of each Note, each payment of principal thereof
and interest thereon shall be applied, first, to the payment of accrued but
unpaid interest on such Note (as well as any interest on overdue principal or,
to the extent permitted by law, interest) 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 installment of principal) thereunder and third,
the balance, if any, remaining thereafter, to the balance of the payment of the
principal amount of, and premium, if any, on such Note.
ARTICLE IV
REGISTRATION, TRANSFER. EXCHANGE,
CANCELLATION AND OWNERSHIP OF
NOTES
SECTION 4.1. Register of Notes.
The Indenture Trustee on behalf of the Owner Trustee shall
maintain at the Indenture Trustee's Office a register for the purpose of
registration, and registration of transfer and exchange, of the Notes by series
and in which shall be entered the names and addresses of the owners of such
Notes and the principal amounts of the Notes owned by them, respectively. For
these purposes, the Indenture Trustee is hereby appointed transfer agent and
registrar for the Notes.
SECTION 4.2. Registration of Transfer or Exchange of Notes.
A Holder of a Note intending to register the transfer of any
outstanding Note held by such Holder (including any transfer in the form of a
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pledge or assignment) or to exchange any outstanding Note held by such Holder
for a new Note or Notes of the same series may surrender such Outstanding Note
at the Indenture Trustee's Office, together with the written request of such
Holder, or of its attorney duly authorized in writing, in each case with
signatures guaranteed, for the registration of such Note in the name of any
pledgee or assignee (in the case of a transfer in the form of a pledge or
assignment) or for the issuance of a new Note or Notes of the same series,
specifying the authorized denomination or denominations of any new Note or Notes
to be issued and the name and address of the Person or Persons in whose name or
names the Note or Notes are to be registered (either as pledgee or assignee or
as owner). Promptly upon receipt by the Indenture Trustee of the foregoing and
satisfaction of the requirements of sections 4.5 and 4.6 hereof, the Indenture
Trustee shall register such Note or Notes in the name or names of the Person or
Persons as shall be specified in the written request and, in the case in which a
new Note or Notes are to be issued, the Owner Trustee shall execute and the
Indenture Trustee shall authenticate and deliver such new Note or Notes of the
same series, in the same aggregate principal amount and dated the same date as
the Outstanding Note surrendered, in such authorized denomination or
denominations as shall be specified in the written request. The Indenture
Trustee shall make a notation on each new Note of the amount of all payments of
principal theretofore made on the old Note or Notes in exchange or transfer for
which any new Note has been issued and the date to which interest on such old
Note or Notes has been paid.
SECTION 4.3. Cancellation of Notes.
All Notes surrendered to the Indenture Trustee for payment in
full, prepayment in full or registration of transfer or exchange shall be
cancelled by it; and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Notes held by it in a manner satisfactory to the
Owner Trustee and deliver a certificate of destruction to the Owner Trustee. If
the Owner Trustee shall acquire any of the Notes, such acquisition shall not
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operate as a redemption of or the satisfaction of the indebtedness represented
by such Notes unless and until the same shall be delivered to the Indenture
Trustee for cancellation.
SECTION 4.4. Limitation on Timing of Registration of Notes.
The Indenture Trustee shall not be required to register
transfers or exchanges of Notes on any date fixed for the payment or prepayment
of principal of or interest on the Notes or during the fifteen days preceding
any such date.
SECTION 4.5. Restrictions on Transfer Resulting from Federal
Securities Laws; Legend.
If not prohibited by the Securities Act, each Note shall be
delivered to the initial Holder thereof without registration of such Note under
the securities Act and without qualification of this Indenture under the Trust
Indenture Act. Prior to any transfer of any Note, in whole or in part, to any
Person other than the collateral Trust Trustee, the Holder thereof shall furnish
to the Lessee, the Indenture Trustee and the Owner Trustee an opinion of
counsel, which opinion and which counsel shall be reasonably satisfactory to the
Indenture Trustee, the Owner Trustee 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, and all
Notes issued hereunder shall be endorsed with a legend which shall read
substantially as follows:
This Note has not been registered under the securities Act of
1933 and may not be transferred, sold or offered for sale in
violation of such Act.
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SECTION 4.6. Charges upon Transfer or Exchange of Notes.
As a further condition to registration of transfer or exchange
of any Note, the Indenture Trustee and the Owner Trustee may charge the Holder
thereof for any stamp taxes or governmental charges required to be paid with
respect to such registration of transfer or exchange.
SECTION 4.7. Inspection of Register of Notes.
The register of the Holders of the Notes referred to in
section 4.1 shall at all reasonable times be open for inspection by any Holder
of a Note. upon request by any Holder of a Note, or the Owner Trustee or the
Lessee, the Indenture Trustee shall furnish such Person, at the expense of such
Person, with a list of the names and addresses of all Holders of Notes entered
on the register kept by the Indenture Trustee indicating the series, principal
amount and number of each Note held by each such Holder.
SECTION 4.8. Ownership of Notes.
(a) Prior to due presentment for registration of transfer of any
Note, the Owner Trustee and the Indenture Trustee may deem and treat the Holder
of record of such Note as the absolute owner of such ▇▇▇▇ for the purpose of
receiving payment of all amounts payable with respect to such Note and for all
other purposes, and neither the Owner Trustee nor the Indenture Trustee shall be
affected by any notice to the contrary.
(b) The Owner Trustee and the Indenture Trustee may, in their
discretion, treat the Holder of record of any Note as the owner thereof without
actual production of such Note for any purpose hereunder, except as provided in
the last sentence of section 3.8 hereof.
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(c) Neither the Owner Trustee nor the Indenture Trustee shall
be bound to take notice of or carry out the execution of any trust in respect of
any Note, and may register the transfer of the same on the direction of the
Holder of record thereof, whether named as trustee or otherwise, as though such
Holder were the beneficial owner thereof.
(d) The receipt by the Holder of record of any Note of any
payment of principal, premium or interest shall be a good discharge to the Owner
Trustee and the Indenture Trustee for the same and neither the Owner Trustee nor
the Indenture Trustee shall be bound to inquire into the title of any such
Holder.
ARTICLE V
RECEIPT, DISTRISUTION AND
APPLICATION OF INCOME AND PROCEEDS FROM
THE LEASE INDENTURE ESTATE
SECTION 5.1. Basic Rent Interest on Overdue Installments of
Basic Rent and prepayments of Interest.
Except as otherwise provided in Section 5.3 or 5.7 hereof,
each payment of Basic Rent, as well as any payment of supplemental Rent
representing interest on overdue installments of Basic Rent, received by the
Indenture Trustee at any time, shall be distributed by the Indenture Trustee in
the following order of priority: first, so much of such payment as shall be
required to pay in full the aggregate amount of the payment or payments of
principal and/or interest (as well as any interest on overdue principal or, to
the extent permitted by law, interest) then due and unpaid on all Notes shall be
distributed to the Holders of the Notes ratably, without priority of one over
the other, in the proportion that the aggregate amount of such payment or
payments then due and unpaid on all Notes held by each such Holder on such date
bears to the aggregate amount of such payment or payments then due and unpaid on
all Notes outstanding on such date, without priority of interest over principal
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or principal over interest; and second, the balance, if any, of such payment
remaining thereafter shall be distributed, concurrently with any distribution
pursuant to clause first hereof, to the Owner Trustee or as the Owner Trustee
may direct. If there shall not otherwise have been distributed on any date (or
within any applicable period of grace), pursuant to this Section 5.1, the full
amount then distributable pursuant to clause first of this Section 5.1, the
Indenture Trustee shall distribute other payments referred to in sections 5.4
and 5.5 then held by it or thereafter received by it, except as otherwise
provided in section 5.3, to the Holders of all Notes to the extent necessary to
enable it to make all the distributions then due pursuant to such clause first;
provided that to the extent any distribution is made from amounts held pursuant
to section 5.4 hereof and the Lessee subsequently makes the payment of Basic
Rent or supplemental Rent in respect of which such distribution was made, such
payment of Basic Rent or supplemental Rent shall, unless an Indenture Default or
an Indenture Event of Default shall have occurred and be continuing, be applied
to the purpose for which such amount held pursuant to section 5.4 had been held,
subject, in all cases, to the terms of section 5.4. 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 3.11. Any payment received by the Indenture Trustee pursuant to section
6.8 shall be distributed to the Holders of the Notes, ratably, without priority
of one over the other, in the proportion that the amount of such payment or
payments then due and unpaid on all Notes held by each such Holder bears to the
aggregate amount of the payments then due and unpaid on all Notes Outstanding.
Amounts distributed by the Indenture Trustee pursuant to this section 5.1 shall
be distributed as promptly as practicable after such amounts are actually
received by the Indenture Trustee; provided, however, that in the event the
Indenture Trustee shall be directed to make payments to the Holder of any Note
by wire transfer in accordance with Section 3.8 hereof, any amounts received by
the Indenture Trustee after 11:00 A.M., New York City time, may be distributed
on the following Business Day.
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SECTION 5.2. Amounts Received as Result of Event of Lass, Deemed
Loss Event, Exercise of Option to Terminate, Exercise of Cure Option or
Occurrence of Special Purchase Event.
If an Event of toss or Deemed Loss Event shall occur or the
Lessee shall exercise the Cure Option, and if either the Assumption Agreement or
the undivided Interest Indenture Supplement shall have been executed and
delivered, any amounts of Casualty value, special casualty Value or Fair Market
Sales value received or held by the Indenture Trustee in respect of such Event
of Loss or Deemed Loss Event or exercise of the Cure Option shall, except as
otherwise provided in Section 5.3, be distributed forthwith to the Owner
Participant. If the Lessee or the Owner Trustee, as the case may be, shall
exercise its option to terminate the Facility Lease pursuant to Section 14
thereof, or the special Purchase Event shall have occurred, then there shall be
prepaid, on the date payments of proceeds with respect thereto are received by
the Indenture Trustee (or as soon thereafter as practicable) under section 13(c)
or 14 of the Facility Lease as the case may be, the unpaid principal amount of
all Notes, together with the premium, if any, and all accrued but unpaid
interest thereon to the date of such prepayment. Notice of such prepayment shall
be given as provided in Section 3.9(c) and may provide that it is subject to
receipt of funds for such prepayment. Except as. otherwise provided in section
5.3 or 5.7, any payments received and amounts realized by the Indenture Trustee
upon exercise of the Lessee's or the Owner Trustee's option to terminate the
Facility Lease under section 14 thereof or upon occurrence of the Special
Purchase Event shall in each case be distributed on the date of prepayment as
provided in clauses first, second and fifth of Section 5.3.
SECTION 5.3. Amounts Received After, or Held at rime of
Indenture Event of Default under Section 6.2.
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6091.50.2831.57:1
Except as otherwise provided in Section 5.7, all payments
received and amounts realized by the Indenture Trustee in respect of the Lease
Indenture Estate (including any amounts realized by the Indenture Trustee from
the exercise of any remedies pursuant to the Facility Lease or Article VI of
this Indenture) after an Indenture Event of Default referred to in section 6.2
shall have occurred and be continuing and the Notes have been accelerated
pursuant to Section 7.1, as well as all payments thereafter received or amounts
then held by the Indenture Trustee as part of the Lease Indenture Estate, shall
be distributed by the Indenture Trustee in the following order of priority:
first, so much of such payments or amounts as shall be
required to reimburse the Indenture Trustee for any Trustee's Expenses
(to the extent not previously reimbursed) and to pay the reasonable
remuneration of the Indenture Trustee, shall be applied by the Indenture
Trustee to such reimbursement and payment;
second, so much of such payments or amounts remaining as shall
be required to pay in full the aggregate unpaid principal amount of all
Notes, together with premium, if any, plus accrued but unpaid interest
(as well as interest on overdue principal and, to the extent permitted
by law, on overdue interest) thereon to the date of distribution, shall
be distributed to the Holders of such Notes and in case the aggregate
amount so to be distributed shall be insufficient to pay all such Notes
in full as aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid principal amount of
all such Notes held by each such Holder, together with premium, if any,
plus accrued but unpaid interest thereon to the date of distribution
bears to the aggregate unpaid principal amount of all Notes, together
with premium, if any, plus accrued but unpaid interest thereon to the
date of distribution;
third, so much of such payments or amounts remaining as shall
be required to pay the present or former Holders of the Notes the
amounts payable to them as Indemnitees (to the extent not previously
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reimbursed) shall be distributed to such Holders; and in case the
aggregate amount so to be paid to all such Holders in accordance with
this clause third shall be insufficient to pay all such amounts as
aforesaid, then ratably, without priority of one over the other, in the
proportion that the amount of such indemnity or other payments to which
such Person is entitled bears to the aggregate amount of such indemnity
or other payments to which all such Persons are entitled;
fourth, the balance, if any, of such payments or amounts
remaining shall be applied to the payment of any other indebtedness at
the time due and owing to the Indenture Trustee or the Holders of the
Notes which this Indenture by its terms secures; and
fifth, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to or upon the direction of
the Owner Trustee.
SECTION 5.4. Amounts Received for which provision Is Made in a
Transaction Document.
Except as otherwise provided in section 5.1, 5.3 or 5.7 hereof,
any payments received by the Indenture Trustee in respect of the Lease Indenture
Estate for which provision as to the application thereof is made in a
Transaction Document shall be applied to the purpose for which such payment was
made in accordance with the terms of such Transaction Document, as determined,
in the first instance, from instructions or other information accompanying such
payment, or, otherwise, in accordance with instructions from the payor of such
payments.
SECTION 5.5. Amounts Received for Which No Provision Is Made.
Except as otherwise provided in section 5.1, 5.2, 5.3 or 5.7,
any payments received and any amounts realized by the Indenture Trustee in
respect of the Lease Indenture Estate
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(a) for which no provision as to the application thereof is made in a
Transaction Document or elsewhere in this Article V shall be held by the
Indenture Trustee as part of the Lease Indenture Estate, and
(b) 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 the Notes,
as well as any other amounts remaining as part of the Lease Indenture
Estate after payment in full of the principal of and premium, if any,
and interest on all the Notes, shall be distributed by the Indenture
Trustee in the order of priority set forth in Section 5.3 (omitting
clause second thereof).
SECTION 5.6. Payments to Owner Trustee.
Unless otherwise directed by the Owner Trustee, all payments to
be made to the Owner Trustee hereunder shall be made to the Owner Participant by
wire transfer of immediately available funds as soon as practicable but in any
event no later than the close of business on the date of receipt (assuming the
Indenture Trustee has received such funds prior to 11:00 a.m. New York City time
on the same day), to such account at such bank or trust company as the Owner
Participant shall from time to time designate in writing to the Indenture
Trustee.
SECTION 5.7. Excepted Payments.
Anything in this Article V or elsewhere in this Indenture to the
contrary notwithstanding, any Excepted Payment received at any time by the
Indenture Trustee shall be distributed as promptly as practicable to the Person
entitled to receive such Payment (such entitlement to be conclusively determined
by reference to payment instructions from such Person).
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ARTICLE VI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF OWNER TRUSTEE; EVENTS
OF DEFAULT; REMEDIES OF THE
INDENTURE TRUSTEE
SECTION 6.1. Representations, Warranties and Covenants of Owner
Trustee
The Owner Trustee hereby covenants and agrees that (i) 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, (ii) it will
not pledge, create a security interest in or mortgage, so long as this Indenture
shall remain in effect, any of its estate, right, title or interest in and to
the Lease Indenture Estate or otherwise constituting part of the Trust Estate,
to anyone other than the Indenture Trustee, (iii) so long as this Indenture
shall remain in effect, it will not purchase or agree to purchase any property
or asset other than the Undivided Interest and the Real Property Interest and
other than as contemplated by the Transaction Documents, (iv) it will not,
except with the prior written concurrence of the Indenture Trustee or as
expressly provided in or permitted by this Indenture or with respect to the
Trust Agreement or any property not constituting part of the Lease Indenture
Estate, take any action which would result in an impairment of any Note or the
obligation of the Lessee to pay any amount under the Facility Lease which is
part of the Lease Indenture Estate (not in any event including in respect of
Excepted Payments) or any of the other rights or security created or effected
thereby, or (v) issue, or incur any obligation in respect of, indebtedness for
borrowed money except for its obligations in respect of Notes.
A signed copy of any amendment or supplement to the Trust
Agreement shall be delivered by the Owner Trustee to the Indenture Trustee and
the Lessee. This Indenture and the Lease Indenture Estate shall not be affected
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by any action taken under or in respect of the Trust Agreement except as
otherwise provided in or permitted by this Indenture. The Trust Agreement may
not in any event be terminated by the Owner Participant or the Owner Trustee or
revoked by the Owner Participant so long as any of the Notes or any unpaid
obligations under this Indenture remain Outstanding. The Owner Trustee may
resign as Owner Trustee, appoint a successor Owner Trustee and take all
necessary and proper action to constitute one or more Persons as co-trustee(s)
jointly with the Owner Trustee or as separate trustee(s), all in accordance with
the terms and conditions of Article IX of the Trust Agreement.
SECTION 6.2. Indenture Events of Default.
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 of the Events of Default specified in the following
clauses of section 15 of the Facility Lease: (1) clause (i)(y), except a failure
of the Lessee to pay any amount which shall constitute an Excepted Payment; (2)
clause (i)(x), except a failure of the Lessee to pay any amount which shall
constitute an Excepted Payment or except where the Owner Trustee shall not have
rescinded or terminated the Facility Lease pursuant to section l6(a)(i) of the
Facility Lease; or (3) clause (vii); or
(b) the rescission, or termination of, or the taking of action
by the Owner Trustee or the Owner Participant the effect of which would be to
rescind or terminate, the Facility Lease, whether pursuant to section l6(a)(i)
of the Facility Lease or otherwise; or
(c) any failure by the Lessee to perform and observe Section
10(b) (3)(iii) of the Participation Agreement; or
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(d) the Owner Trustee shall fail to make any payment in
respect of the principal of, or premium, if any, or interest on, the Notes
within ten (10) Business Days after the same shall have become due (other than
by virtue of any failure by the Lessee to make any payment of Rent therefor); or
(e) the Owner Trustee shall fail to perform or observe any
covenant or agreement to be performed or observed by it under section 6.1 of
this Indenture, or the Owner Participant shall fail to perform or observe any
covenant or agreement to be performed or observed by it under Section 7(b)(l) of
the Participation Agreement and, in any such case, such failure shall continue
for a period of 30 days after notice thereof shall have been given to the Owner
Trustee, the Owner Participant and the Lessee by the Indenture Trustee,
specifying such failure and requiring it to be remedied.
SECTION 5.3. Enforcement of Remedies
(a) In the event that an Indenture Event of Default shall have
occurred and be continuing, then and in every such case the Indenture Trustee,
subject to paragraph (b) of this section 6.3 and section 6.11, may, and when
required pursuant to the provisions of Article VIZ hereof shall, exercise any or
all of the rights and powers and pursue, subject to the rights of the Lessee
under the Facility Lease, (x) in the event such Indenture Event of Default is
referred to in paragraph (d) or (e) of Section 6.2, any or all of the remedies
then available pursuant to this Article V! and Article VII, or (y) in the event
such Indenture Event of Default is referred to in paragraph (a), (b) or (c) of
Section 6.2, any or all of such remedies concurrently with the exercise and
pursuit by the Owner Trustee of any or all of the remedies then available to the
Owner Trustee under the Facility Lease.
(b) Any provisions of the Facility 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
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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.
SECTION 5.4. Specific Remedies; Enforcement of claims without
Possession of Notes.
Subject to sections 6.2, 6.3 and 6.11 hereof and the terms of
the documents constituting a part of the Lease Indenture Estate, upon the
occurrence and during the continuance of an Indenture Event of Default:
(a) The Indenture Trustee may, in order to enforce the rights
of the Indenture Trustee and of the Holders of the Notes, direct payment to it
of all moneys and enforce any agreement or undertaking constituting a part of
the Lease Indenture Estate by any action, suit, remedy or proceeding authorized
or permitted by this Indenture or by law or by equity, and 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 Applicable Law, and in addition may sell, assign,
transfer and deliver, from time to time to the extent permitted by Applicable
Law, all or any part of the Lease 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 Applicable 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 uncontrolled discretion, may
determine, or as may be required by Applicable Law, so long as the Owner
Participant and the Owner Trustee are afforded a commercially reasonable
opportunity to bid for all or such part of the Lease Indenture Estate in
connection therewith. It is agreed that 90 days' notice to the Owner
Participant, the Owner Trustee and the Lessee of the date, time and place of any
proposed sale by the Indenture Trustee of all or any part of the Lease Indenture
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Estate or interest therein is reasonable. 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 }Holders of the
Notes asserted or upheld in any bankruptcy, receivership or other judicial
proceedings.
(b) Without limiting the foregoing, the Indenture Trustee, its
assigns and its legal representatives, subject to the rights of the Lessee under
the Facility Lease, shall have as to such of the Lease Indenture Estate as is
subject to the uniform commercial Code or similar law in each relevant
jurisdiction all the remedies of a secured party under the uniform commercial
Code or similar law in such jurisdiction and such further remedies as from time
to time may hereafter be provided in such jurisdiction for a secured party.
(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 Holders of the
Notes 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 Holders of the Notes, and it shall not be
necessary to make any such Holders parties to such proceedings.
(d) The Indenture Trustee may exercise any other right or
remedy that may be available to it under Applicable Law or proceed by
appropriate court action to enforce the terms hereof or to recover damages for
the breach hereof.
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SECTION 6.5. Rights and Remedies Cumulative.
Subject to Sections 6.2, 6.3 and 6.11 hereof, (a) each and
every right, power and remedy herein specifically given to the Indenture Trustee
under 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 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, and (b) no delay or
omission by the Indenture Trustee in the exercise of any right, power or remedy
or in the pursuance of any remedy shall impair any such right, power or remedy
or be construed to be a waiver of any default on the part of the Owner
Participant, the Owner Trustee or the Lessee or to be an acquiescence therein.
SECTION 6.5. Restoration of Rights and Remedies.
In case the Indenture Trustee 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,
then and in every such case the Owner Trustee, the Owner Participant, the
Indenture Trustee and the Lessee shall be restored to their former positions and
rights hereunder with respect to the Lease Indenture Estate, and all rights,
powers and remedies of the Indenture Trustee shall continue as if no such
proceedings had been taken.
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SECTION 6.7. Waiver of Past Defaults.
Any past Indenture Default or Indenture Event of Default and
its consequences may be waived by the Indenture Trustee, except an Indenture
Default or an Indenture Event of Default (i) in the payment of the principal of
or interest on any Note, subject to the provisions of Section 7.1 hereof, or
(ii) in respect of a covenant or provision hereof which, under Section 10.2
hereof, cannot be modified or amended without the con-sent of each Holder of a
Note then outstanding. Upon any such waiver, such Indenture Default or 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
Default or Indenture Event of Default or impair any right consequent thereon.
SECTION 6.8. Right of Owner Trustee to Pay Rent; Note Purchase;
Substitute Lessee.
Anything in this Article VI or Article VII to the contrary
notwithstanding:
(a) an Indenture Event of Default shall be deemed cured if
such Indenture Event of Default results from non-payment of Basic Rent or
supplemental Rent under the Facility Lease, and the Owner Trustee or the Owner
Participant shall have paid all principal of and interest on the Notes due
(other than by acceleration) on the date such Basic Rent was payable (plus
interest on such amount as required hereby) within 20 days after the receipt by
the Owner Trustee of notice of such non-payment, such receipt to be evidenced
by, among other things, any notice thereof given to the Owner Trustee in
accordance with the notice provisions of the Participation Agreement. The owner
Trustee or the Owner Participant, upon exercising cure rights under this
paragraph (a), shall not obtain any Lien on any part of the Lease Indenture
Estate on account of such payment for' the costs and expenses incurred in
connection therewith nor, except as expressly provided in the succeeding
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sentence, shall any claims of the Owner Trustee or the Owner Participant against
the Lessee or any other Person for the repayment thereof impair the prior right
and security interest of the Indenture Trustee in and to the Lease Indenture
Estate. Upon any payment by the Owner Trustee or the Owner Participant pursuant
to this Section 6.6, the Owner Trustee or the Owner Participant, as the case may
be, shall (to the extent of such payment made by it) be subrogated to the rights
of the Indenture Trustee and the Holders of the Notes to receive the payment of
Rent with respect to which the Owner Trustee or the Owner Participant made such
payment and interest on account of such Rent payment being overdue in the manner
set forth in the next sentence. If the Indenture Trustee shall thereafter
receive such payment of Rent or such interest, the Indenture Trustee shall,
notwithstanding the requirements of section 5.10 on the date such payment is
received by the Indenture Trustee, remit such payment of Rent (to the extent of
the payment made by the Owner Trustee or the Owner Participant pursuant to this
section 6.6) and such interest to the Owner Trustee or the Owner Participant, as
the case may be, in reimbursement for the funds so advanced by it.
(b) Each Holder of a Note agrees, by acceptance thereof, that
if the Notes have been accelerated pursuant to section 7.1, and the Owner
Trustee, within 30 days after receiving notice from the Indenture Trustee
pursuant to Section 7.1 hereof, shall give written notice to the Indenture
Trustee of the Owner Trustee's intention to purchase all of the Notes in
accordance with this paragraph, accompanied by assurances of the Owner Trustee
to purchase the Notes, then, upon receipt within 10 Business Days after such
notice from the Owner Trustee of an amount equal to the aggregate unpaid
principal amount of and any premium with respect to any unpaid Notes then held
by such Holder, 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 law, interest), such Holder will forthwith sell, assign, transfer
and convey to the Owner Trustee (without recourse or warranty of any kind other
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than of title to the Notes so conveyed) all of the right, title and interest of
such Holder in and to the Lease. Indenture Estate, this Indenture and all Notes
held by such Holder; provided, that no such Holder shall be required so to
convey unless (1) the Owner Trustee shall have simultaneously tendered payment
for all other Notes issued by the Owner Trustee at the time Outstanding pursuant
to this paragraph and (2) such conveyance is not in violation of any Applicable
Law.
(c) Each Holder of a Note further agrees by its acceptance
thereof that the Owner Trustee shall have the right, pursuant to Section 16 of
the Facility Lease, to terminate the Facility Lease and, in connection
therewith, to arrange for the substitution of another Person as lessee under a
new lease substantially similar to the Facility Lease (hereinafter the
Substituted Lessee) and, subject to: (i) any Indenture Event of Default under
paragraphs (d) and (e) of Section 6.2 having been cured by the Owner Trustee,
(ii) the Substituted Lessee's assuming all of the obligations of the Lessee
under the Facility Lease and (iii) the Substituted Lessee's having an assigned
credit rating by Standard & Poor's Corporation and ▇▇▇▇▇'▇ Investors Service,
Inc. (or, if either of such organizations shall not rate securities issued by
such Substituted Lessee, by any other nationally recognized rating organization
in the United States of America) with respect to at least one series of its debt
obligations or preferred stock equal to or better than the ratings assigned,
immediately prior to such substitution, by such organizations to comparable
securities of the Lessee immediately prior to such substitution but in no event
less than "investment grade", then the Facility Lease between the Owner Trustee
and such Substituted Lessee shall, for all purposes of this Indenture, be deemed
to be the Facility Lease subject to the lien of this Indenture.
SECTION 6.9. Further Assurances.
Subject to section 7.6 hereof, the Owner Trustee 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.
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SECTION 6.10. Right of Indenture Trustee To Perform Covenants,
etc.
If the Owner Trustee shall fail to make any payment or perform
any act required to be made or performed by it hereunder or under the Facility
Lease or if the Owner Trustee shall fail to release any Lien affecting the Lease
Indenture Estate which it is required to release by the terms of this Indenture,
the Indenture Trustee, without notice to or demand upon the Owner Trustee and
without waiving or releasing any obligation or default, 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 Lease Indenture Estate. All sums so
paid by the Indenture Trustee and all costs and expenses (including without
limitation reasonable fees and expenses of legal counsel and other
professionals) so incurred, together with interest thereon from the date of
payment or occurrence, shall constitute additional indebtedness secured by this
Indenture and shall be paid from the Lease 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 6.11. Certain Other Rights of the Owner Trustee.
Notwithstanding any provision to the contrary in this Indenture,
the Owner Trustee shall at all times retain, to the exclusion of the Indenture
Trustee, all rights of the Owner Trustee to exercise any election or option or
to make any decision or determination or to give or receive any notice, consent,
waiver or approval or to take any other action under or in respect of the
Facility Lease, as well as all rights, powers and remedies on the part of the
Owner Trustee, whether arising under the Facility Lease or by statute or at law
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or in equity or otherwise, arising out of any Default or Event of Default
subject, however, to Section 10.2. Without the prior written consent of the
indenture Trustee, the exercise of any of the aforesaid rights so retained by
the Owner Trustee shall not be exercised in such a manner as to (i) reduce the
amounts payable by the Lessee under the Facility Lease below the amounts
necessary to provide the owner Trustee with sufficient monies to make timely
payments in full of amounts due with respect to the principal of and premium, if
any, and interest on all Notes or (ii) rescind or terminate the Facility Lease
pursuant to section 16 thereof. Nor shall the Owner Trustee exercise any other
right or remedy under the Facility Lease the effect of which would be to effect
such rescission or termination.
ARTICLE VII
CERTAIN DUTIES OF THU ON
TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 7.1. Duties in Respect of Events of Default, Deemed
Loss Events and Events of Loss; Acceleration of Maturity.
In the event the Owner Trustee shall have actual knowledge of an
Indenture Event of Default, an Event of Default, a Deemed Loss Event or an Event
of Loss, the Owner Trustee shall give prompt written notice thereof to the Owner
Participant, the Lessee and the Indenture Trustee. In the event the Indenture
Trustee shall have actual knowledge of an Event of Default, an Indenture Event
of Default, a Deemed Loss Event or an Event of Loss, the Indenture Trustee shall
give prompt written notice thereof to the Owner Participant, the Owner Trustee,
the Lessee and each Holder of a ▇▇▇▇. Subject to the terms of sections 6.2, 6.3,
6.4, 6.8, 6.11 and 7.3 hereof, (a) the Indenture Trustee shall take such action
(including the waiver of past Defaults in accordance with section 6.7 hereof),
or refrain from taking such action, with respect to any such Indenture Event of
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Default, Event of Default, Deemed Loss Event or Event of Loss as the Indenture
Trustee shall be instructed by a Directive, (b) if the Indenture Trustee shall
not have received instructions as above provided within 20 days after mailing by
the Indenture Trustee of notice of such Indenture Event of Default, Event of
Default, Deemed Loss Event or Event of Loss to the Persons referred to above,
the Indenture Trustee may1 subject to instructions thereafter received pursuant
to the preceding sentence, take such action, or refrain from taking such action,
but shall be under no duty to take or refrain from taking any action, with
respect to such Indenture Event of Default, Event of Default, Deemed Loss Event
or Event of Loss as it shall determine advisable in the best interests of the
Holders of the Notes of all series and (c) 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 a Directive shall, by written notice to the
Owner Trustee, declare the unpaid principal amount of all Notes with accrued
interest thereon to be immediately due and payable, upon which declaration such
principal amount and much accrued interest shall immediately become due and
payable without further act or notice of any kind. For all purposes of this
Indenture, in the absence of actual knowledge, neither the Owner Trustee nor the
Indenture Trustee shall be deemed to have knowledge of an Indenture Event of
Default or Event of Default except that the Indenture Trustee shall be deemed to
have knowledge of the failure of the Lessee to pay any installment of Basic Rent
within 10 Business nays after the same shall become due. For purposes of this
section 7.1, neither the Owner Trustee nor the Indenture Trustee shall be deemed
to have actual knowledge of any Indenture Event of Default, Event of Default,
Deemed Loss Event or Event of Loss unless it shall have received notice thereof
pursuant to section 11.6 hereof or such Indenture Event of Default or Event of
Default shall actually be known by an officer in the corporate trust department
of the Owner Trustee or by an officer in the corporate Trustee Administration
Department of the Indenture Trustee, as the case may be.
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SECTION 7.2. Duties in Respect of Matters Specified in
Directive.
Subject to the terms of Sections 6.2, 6.3, 6.4, 6.8, 6.11, 7.1
and 7.3 hereof, upon receipt of a Directive, the Indenture Trustee shall take
such of the following actions as may be specified in such Directive: (i) give
such notice or direction or exercise such right, remedy or power permitted
hereunder or permitted with respect to the Facility Lease or in respect of any
part or all of the Lease Indenture Estate as shall be specified in such
Directive; and (ii) take such action to preserve or protect the Lease Indenture
Estate as shall be specified in such Directive, it being agreed that without
such a Directive, the Indenture Trustee shall not waive, consent to or approve
any such matter as satisfactory to it.
SECTION 7.3. Indemnification.
The Indenture Trustee shall not be required to take or refrain
from taking any action under section 7.1 or 7.2 or Article VI hereof which shall
require the Indenture Trustee to expend or risk its own funds or otherwise incur
any financial liability unless the Indenture Trustee shall have been indemnified
by the Holders of the Notes against liability, cost or expense (including
counsel fees) which may be incurred in connection therewith, or unless, in the
reasonable judgment of the Indenture Trustee, the indemnities of the Lessee
shall be adequate for such purpose; provided, however, that if the Holder of
such Notes is the Collateral Trust Trustee, the unsecured written undertaking of
the collateral Trust Trustee, in its individual capacity, shall be sufficient
indemnity for purposes of this Section. The Indenture Trustee shall not be
required to take any action under Section 7.1 or 7.2 or Article VI hereof nor
shall any other provision of this Indenture be deemed to impose a duty on the
Indenture Trustee to take any action, if the Indenture Trustee shall reasonably
determine, or shall have been advised by counsel, that such action is likely to
result in personal liability or is contrary to the terms hereof or of the
Facility Lease or is otherwise contrary to law.
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SECTION 7.4. Limitations on Duties; Discharge of Certain Liens
Resulting from Claims Against Indenture Trustee.
The Indenture Trustee shall have no duty or obligation to take
or refrain from taking any action under, or in connection with, this Indenture
or the Facility Lease, except as expressly provided by the terms of this
Indenture. The Indenture Trustee nevertheless agrees that it will, in its
individual capacity and at its own cost and expense, promptly take such action
as may be necessary duly to discharge all Liens on any part of the Lease
Indenture Estate which result from acts by or claims against it arising out of
events or conditions not related to its rights in the Lease Indenture Estate or
the administration of the Lease Indenture Estate or the transactions
contemplated hereby.
SECTION 7.5. Restrictions on Dealing with Lease Indenture
Estate.
Except as provided in the Transaction Documents, the Owner
Trustee shall not use, operate, store, lease, control, manage, sell, dispose of
or otherwise deal with any part of the Lease Indenture Estate.
SECTION 7.6. Filing of Financing Statements and Continuation
Statements.
Pursuant to Section l0(b)(2) of the participation Agreement, the
Lessee has covenanted to maintain the priority of the lien of this Indenture on
the Lease 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 the 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 under this Indenture in the Lease
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as may be necessary to protect, perfect and preserve the lien
created under this Indenture. At any time and from time to time, upon the
request of the Lessee or the Indenture Trustee, at the expense of the Lessee as
provided in the Participation Agreement (and upon receipt of the form of
document so to be executed) , the Owner Trustee shall promptly and duly execute
and deliver any and all such further instruments and documents as the Lessee or
the Indenture Trustee may reasonably request in order for the Indenture Trustee
to obtain the full benefits of the security interest, assignment and mortgage
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 Trustee shall execute and
file any financing statement (and any continuation statement with respect to any
such financing statement), any certificate of title or any other document, in
each case relating to the security interest, assignment and mortgage created by
this Indenture, as may be specified in such instructions. In addition, the
Indenture Trustee and the Owner Trustee will execute such continuation
statements with respect to financing statements and other documents relating to
the lien created under this Indenture in the Lease Indenture Estate as may be
reasonably specified from time to time in written instructions of any Holder of
a Note (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).
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ARTICLE VIII
CONCERNING THE OWNER TRUSTEE AND
THE INDENTURE TRUSTEE
SECTION 8.1. Acceptance of Trusts; Standard of Care.
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 the Participation Agreement and agrees to receive and disburse all
moneys constituting part of the Lease Indenture Estate in accordance with the
provisions hereof, provided that no implied duties or obligations shall be read
into this Indenture or the Participation Agreement against the Indenture
Trustee. The Indenture Trustee shall enter into and perform its obligations
under the Participation Agreement, and, at the request of the Owner Trustee, any
other agreement relating to any transfer of the Undivided Interest or the Real
Property Interest or the assignment of rights under the Assignment and
Assumption or, at the request of the Owner Trustee, the purchase by any Person
of Notes or Additional Notes issued hereunder, all as contemplated hereby. The
Indenture Trustee shall not be liable under any circumstances, except for its
own willful misconduct or gross negligence. If any Indenture Event of Default
shall have occurred and be continuing, the Indenture Trustee shall exercise such
of the rights and remedies vested in it by this Indenture, subject to the
provisions hereof, and shall use the same degree of care in their exercise as a
prudent man would exercise or use in the circumstances in the conduct of his own
affairs; provided that it in the opinion of the Indenture Trustee such action
may tend to involve expense or liability, it shall not be obligated to take such
action unless it is furnished with indemnity satisfactory to it.
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SECTION 8.2. No Duties of Maintenance, Etc.
Except pursuant to Section 7.2 hereof and except as provided in,
and without limiting the generality of, sections 7.1 and 7.4 hereof, the
Indenture Trustee shall have no duty (i) to see to any recording or filing of
any Transaction Document, or to see to the maintenance of any such recording or
filing, or (ii) to see to the payment or discharge of any tax, assessment or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, or assessed or levied against, any part of the Lease Indenture
Estate (except such as are required to be paid or discharged by it pursuant to
this Indenture or any 0(pound) the other Transaction Documents) or to make or
file any reports or returns related thereto.
SECTION 8.3. Representations and warranties of Indenture
Trustee and the Owner Trustee.
NEITHER THE OWNER TRUSTEE NOR THE INDENTURE TRUSTEE MAKES Any
REPRESENTATION OR WARRANTY AS TO THE VALUE, CONDITION, MERCHANTABILITY OR
FITNESS FOR USE OF UNIT 1, THE UNDIVIDED INTEREST OR ANY PART OF THE LEASE
INDENTURE ESTATE OR AS TO ITS INTEREST THEREIN, OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO UNIT 1, THE UNDIVIDED INTEREST OR ANY PART OF THE LEASE
INDENTURE ESTATE WHATSOEVER. The Owner Trustee and the Indenture Trustee each
represents and warrants, in its individual capacity, as to itself that this
Indenture has been executed and delivered by one or more of its officers who are
duly authorized to execute and deliver this Indenture on its behalf.
SECTION 8.4. Moneys Held in Trust; Non-Segregation of Moneys.
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 provided in Sections 2.3(c), 8.8 and 11.1 hereof,
moneys received by the Indenture Trustee under this Indenture need not be
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segregated in any manner except to the extent required by law, and may be
deposited under such general conditions as may be prescribed by law; provided,
however, that any payments received or applied hereunder by the Indenture
Trustee shall be accounted for by the Indenture Trustee so that any portion
thereof paid or applied pursuant hereto shall be identifiable as to the source
thereof. Except as otherwise expressly provided herein, the Indenture Trustee
shall not be liable for any interest on any money held pursuant to this
Indenture.
SECTION 8.5. Reliance on Writings, Use of Agents, Etc.
The Indenture Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
telegram, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. In the case of the Lessee, the Indenture Trustee may accept a copy
of a resolution of the Board of Directors or any duly constituted and authorized
committee of the Board of Directors of the Lessee, certified by the Secretary or
an Assistant Secretary of the Lessee as duly adopted and in full force and
effect, as conclusive evidence that such resolution has been duly adopted by
such Board or Committee and that the same is in full force and effect. As to the
aggregate unpaid principal amount of the Notes outstanding as of any date, the
Owner Trustee may for all purposes hereof rely on a certificate signed by any
Authorized Officer of the Indenture Trustee. As to any fact or matter the manner
of ascertainment of which is not specifically described herein, the Indenture
Trustee may for all purposes hereof rely on a certificate, signed by the
Chairman of the Board, the President, any Vice president and the Treasurer or
the secretary or any Assistant Treasurer or Assistant Secretary of the Lessee ,
or a Holder of a Note or any Responsible Officer of the Owner Trustee, as the
case may be, as to such fact or matter, and such certificate shall constitute
full protection to the Indenture Trustee for any action taken or omitted to be
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taken by it in good faith in reliance thereon. The Indenture Trustee shall
furnish to the Owner Trustee upon request such information and copies of such
documents as the Indenture Trustee may have and as are necessary for the Owner
Trustee to perform its duties under Article III hereof. 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 selected by it in good faith and with reasonable care, and,
with respect to matters relating to the Notes, the Lease Indenture Estate and
its rights and duties under this Indenture and the other Transaction Documents,
may, at the expense of the Lessee, or, if the Lessee shall have failed to pay or
provide for the payment thereof, at the expense of the Lease Indenture Estate,
consult with counsel, accountants and other skilled persons to be selected and
employed by it in good faith and with reasonable care, 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 of any such counsel, accountants or
other skilled persons so selected. unless otherwise specified herein or in any
other Transaction Document, any opinion of counsel referred to in this Indenture
or in such other Transaction Document may be relied on by the Indenture Trustee
to the extent it is rendered by an attorney or firm of attorneys satisfactory to
the Indenture Trustee (which may be counsel to the Owner Participant, the Owner
Trustee, the Lessee or any party to any Transaction Document)
SECTION 8.6. Indenture Trustee to Act solely as Trustee.
The Indenture Trustee acts hereunder solely as trustee as herein
provided and not in any individual capacity, except as otherwise expressly
provided herein; and except as provided in Sections 9(a) and 9(b) of the
Participation Agreement or section 7.4 or 6.1 hereof, all Persons having any
claim against the Indenture Trustee arising from matters relating to the Notes
by reason of the transactions contemplated hereby shall, subject to the lien and
priorities of payment as herein provided and to Sections 3.6 and 5.7, look only
to the Lease Indenture Estate for payment or satisfaction thereof.
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SECTION 8.7. Limitation on Rights Against Registered Holders,
the Owner Trustee or Lease Indenture Estate.
The Indenture Trustee shall be entitled to be paid or reimbursed
for Trustee's Expenses as provided herein and in the other Transaction
Documents. Nonetheless, the Indenture Trustee agrees that it shall have no right
against the Holders of the Notes, the Owner Trustee (except to the extent
included in Transaction Expenses payable by the Owner Participant) or, except as
provided in Article V and section 6.4 or this Article VIII, the Lease Indenture
Estate for any fee as compensation for its services hereunder.
SECTION 8.8. Investment of Certain Payments Held by the
Indenture Trustee.
Any amounts held by the Indenture Trustee hereunder other than
pursuant to section 2.3(c) or 11.1 hereof shall be invested by the Indenture
Trustee from time to time as directed in writing by the Owner Participant and at
the expense and risk of the Owner Participant in (i) obligations of, or
guaranteed as to interest and. principal by, the United States Government
maturing not more than 90 days after such investment, (ii) open market
commercial paper of any corporation incorporated under the laws of the United
states of America or any state thereof rated "prime-1" or its equivalent by
▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" or its equivalent by Standard & Poor's
corporation or (iii) certificates of deposit maturing within 90 days after such
investment issued by commercial banks organized under the laws of the United
States of America or of any political subdivision thereof having a combined
capital and surplus in excess of $500,000,000; provided, however, that the
aggregate amount at any one time so invested (a) in open market commercial paper
of any corporation shall not exceed $2,000,000 and (b) in certificates of
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deposit issued by any one bank shall not exceed $10,000,000. Any income or gain
realized as a result of any such investment shall be applied to make up any
losses resulting from any such investment to the extent such losses shall not
have been paid by the Owner Trustee or the Owner Participant pursuant to this
Section 8.8. Any further income or gain so realized shall be promptly
distributed (in no event later than the next Business Day) to the Owner Trustee
or the Owner Participant, except after the occurrence and during the continuance
of an Indenture Event of Default. The Indenture Trustee shall have no liability
for any loss resulting from any investment made in accordance with this section.
Any such investment may be sold (without regard to maturity date) by the
Indenture Trustee when-ever necessary to make any distribution required by
Article V hereof.
SECTION 8.9. No Responsibility for Recitals etc.
The Indenture Trustee makes no representation or warranty as to
the correctness of any statement, recital or representation made by any Person
other than the Indenture Trustee in this Indenture, any other Transaction
Document or the Notes.
SECTION 8.10. Indenture Trustee May Engage in Certain
Transactions.
The Indenture Trustee may engage in or be interested in any
financial or other transaction with the Lessee, the Owner Participant, the Owner
Trustee and any other party to a Transaction Document, provided that if the
Indenture Trustee determines that any such relation is in conflict with its
duties under this Indenture, it shall eliminate the conflict or resign as
Indenture Trustee.
SECTION 8.11. Construction of Ambiguous Provisions.
Construction of Ambiguous
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The Indenture Trustee, subject to Section 6.1 hereof, may
construe any ambiguous or inconsistent provisions of this Indenture, and any
such construction by the Indenture Trustee shall be binding upon the
Noteholders. In construing any such provision, the Indenture Trustee will be
entitled to rely upon opinions of counsel and will not be responsible for any
loss or damage resulting from reliance in good faith thereon, except for its own
gross negligence or willful misconduct.
ARTICLE IX
SUCCESSOR TRUSTEES
SECTION 9.1. resignation and removal of Indenture trustee;
Appointment of Successor.
(a) The Indenture Trustee may resign at any time without cause
by giving at least 30 days' prior written notice to the Owner Participant, the
Owner Trustee, the Lessee and to each Holder of a Note, such resignation to be
effective upon the acceptance of such trusteeship by a successor. In addition,
the Indenture Trustee may be removed without cause by a Directive delivered to
the Owner Participant, the Owner Trustee, the Lessee and the Indenture Trustee,
and the Indenture Trustee shall promptly give notice thereof in writing to each
Holder of a Note. In the case of the resignation or removal of the Indenture
Trustee, a successor trustee may be appointed by such a Directive. If a
successor trustee shall not have been appointed within 30 days after such notice
of resignation or removal, the Indenture Trustee, the Owner Trustee or any
Holder of a Note may apply to any court of competent jurisdiction to appoint a
successor to act until such time, if any, as a successor shall have been
appointed as above provided. The successor so appointed by such court shall
immediately and without further act be superseded by any successor appointed as
above provided within one year from the date of the appointment by such court.
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(b) Any successor trustee, however appointed, shall execute and
deliver to its predecessor and to the Owner Trustee an instrument accepting such
appointment, and thereupon such successor, without further act, shall become
vested with all the estates, properties, rights, powers and duties of its
predecessor hereunder in the trusts under this Indenture applicable to it with
like effect as if originally named the Indenture Trustee; but, nevertheless,
upon the written request of such successor trustee or receipt of a Directive,
its predecessor shall execute and deliver an instrument transferring to such
successor trustee, upon the trusts herein expressly applicable to it, all the
estates, properties, rights and powers of such predecessor under this Indenture,
and such predecessor shall duly assign, transfer, deliver and pay over to such
successor trustee all moneys or other property then held by such predecessor
under this Indenture.
(c) Any successor trustee, however appointed, shall be a bank
or trust company organized under the laws of the United States or any
jurisdiction thereof having a combined capital and surplus of at least
$100,000,000, if there be such en institution willing, able and legally
qualified to perform the duties of the Indenture Trustee hereunder upon
reasonable or customary terms.
(d) 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 paragraph (c) of this Section 9.1, be the Indenture
Trustee under this Indenture with-out further act.
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ARTICLE X
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 10.1. Supplements, Amendments and Modifications to This
Indenture without Consent of Holders of Notes.
The Indenture Trustee may, with the written consent of the
Owner Trustee, from time to time and at any time execute a supplement to this
Indenture without the consent of the Holders of Notes outstanding in order to
(i) cure any defect, omission or ambiguity in this Indenture or for any other
purpose if such action does not adversely affect the interests of such Holders,
(ii) grant or confer upon the Indenture Trustee for the benefit of such Holders
any additional rights, remedies, powers, authority or security which may be
lawfully granted or conferred and which are not contrary to or inconsistent with
this Indenture, (iii) add to. the covenants or agreements to be observed by the
Owner Trustee and which are not contrary to this Indenture or surrender any
right or power of the Owner Trustee, (iv) confirm or amplify, as further
assurance, any pledge under, and the subjection to any lien or pledge created or
to be created by, this Indenture, of the properties covered hereby, or subject
to the lien or pledge of this Indenture additional revenues, properties or other
collateral, including pursuant to an undivided Interest Indenture Supplement,
(v) qualify this Indenture under the provisions of the Trust Indenture Act, (vi)
evidence the appointment of any successor Indenture Trustee pursuant to the
terms hereof, (vii) evidence the assumption and release affected by the
Assumption Agreement, or (viii) execute supplemental indentures to evidence the
issuance of and to provide the terms of, Additional Notes to be issued hereunder
in accordance with the terms hereof.
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SECTION 10.2. Supplements and Amendments to this Indenture and
the Facility Lease With Consent of Holders of Notes.
Except as provided in Section 10.1 hereof, at any time and
from time to time, (i) upon receipt of a Directive, the Indenture Trustee shall
execute a supplement to this Indenture (to which the Owner Trustee has agreed in
writing) for the purpose of adding provisions to, or changing or eliminating
provisions of, this Indenture, but only as specified in such Directive and, (ii)
upon receipt of a written instruction from the Lessee and the Owner Trustee, the
Indenture Trustee shall consent to any amendment of or supplement to the
Facility Lease or execute and deliver such written waiver or modification of the
terms of the Facility Lease to which the Owner Trustee may agree; provided,
however, that, without the consent of the Holders of all the Notes then
Outstanding no such supplement or amendment to this Indenture or the Facility
Lease, or waiver or modification of the terms of either thereof, shall (x)
modify any of the provisions of this section or of section 7.1 or 7.2 hereof or
Section 4 of the Facility Lease or of the definition of Directive contained in
Appendix A hereto or the definition of Indenture Event of Default herein, reduce
the amount of the Basic Runt, Casualty Value, Special Casualty Value,
Termination value or any payment under or pursuant to section 16 of the Facility
Lease as set forth in the Facility Lease below such amount as is required to pay
the full principal of, and premium, if any, and interest on, the Notes when due,
or extend the time of payment thereof, (y) except as permitted by clause (x)
above, modify, amend or supplement the Facility Lease or consent to the
termination or any assignment thereof, in any case reducing the Lessee's
obligations in respect of the payment of the Basic Rent, Casualty Value, special
Casualty Value, Termination Value or any payment under or pursuant to section 16
of the Facility Lease below the amount referred to in clause (x) above, or (z)
deprive the Holders of any Notes of the lien of this Indenture on the Lease
Indenture Estate (except as contemplated by Section 3.9(b)) or materially
adversely affect the rights and remedies for the benefit of such Holders
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provided in Article VI of this Indenture; and, provided, further, that, without
the consent of the Holders of all the Notes then outstanding and affected
thereby no such supplement or amendment to this Indenture or the Facility Lease,
or waiver or modification of the terms of either thereof, shall reduce the
amount or extend the time of payment of any amount payable under any Note,
reduce or modify the provisions for the computation of the rate of interest
owing or payable thereon, adversely alter or modify the provisions of Article V
with respect to the order of priorities in which distributions thereunder with
respect to the Notes shall be made, or reduce, modify or amend any indemnities
in favor of the Holders of the Notes. Anything to the contrary contained herein
notwithstanding, without the necessity of the consent of the Holders of Notes or
the Indenture Trustee, (a) any indemnities in favor of the Owner Trustee or the
Owner Participant may be modified, amended or changed and (b) the Owner Trustee
may enter into any agreement with respect to the Lease Indenture Estate which by
its terms does not become effective prior to the satisfaction and discharge of
this Indenture, provided however, that any agreement entered into by the Owner
Trustee pursuant to this clause (b) shall not materially adversely affect the
Indenture Trustee or the Holder of any Note. Notwithstanding the foregoing, the
Indenture Trustee shall, upon receipt or a written instruction from the Lessee
and the Owner Trustee, consent to an amendment of the definitions of "Deemed
Loss Event, "Event of Loss" and "Final shutdown" contained in or appended to the
Facility Lease or this Indenture. The Owner Trustee shall deliver to the
Indenture Trustee a copy of each amendment to the Facility Lease whether or not
the Indenture Trustee is required to consent or otherwise act with respect
thereto.
SECTION 10.3. certain Limitations on Supplements and Amendments.
If in the opinion of the Owner Trustee or the Indenture Trustee,
each of which shall be entitled to rely on counsel for purposes of this Section
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10.3, any document required to be executed by either of them pursuant to the
terms of Section 10.1 or 10.2 does not comply with. the provisions of this
Indenture or adversely affects any right, immunity or indemnity in favor of, or
increases any duty of, the Owner Trustee or the Indenture Trustee under this
Indenture, the Facility Lease or the Participation Agreement, the owner Trustee
or the Indenture Trustee, as the case may be, may in its discretion decline to
execute such document.
SECTION 10.4. Directive Need Not specify particular Form of
Supplement or Amendment.
It shall not be necessary for any Directive furnished pursuant
to Section 10.2 hereof to specify the particular form of the proposed documents
to be executed pursuant to such section, but it shall be sufficient if such
request shall indicate the substance thereof.
SECTION 10.5. Trustee to Furnish Copies of Supplement or
Amendment.
Promptly after the execution by the Owner Trustee or the
Indenture Trustee of any document entered into pursuant to section 10.2, the
Indenture Trustee shall mail, by first class mail, postage prepaid, a conformed
copy thereof to each Holder of an outstanding Note at the address of such Person
set forth in the register kept pursuant to Section 4.1 but the failure of the
Indenture Trustee to mail such conformed copies shall not impair or affect the
validity of such document.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Moneys for Payments in Respect of Notes to be
Held in Trust.
In case the Holder of any Note shall fail to present the same
for payment on any date on which the principal thereof or interest thereon
becomes payable, the Indenture Trustee may set aside in trust the moneys then
due thereon uninvested and shall pay such moneys to the Holder of such Note or
such Person upon due presentation or surrender thereof in accordance with the
provisions of this Indenture, subject always however, to the provisions of
Sections 3.8 and 11.2.
SECTION 11.2. Disposition of Moneys Held for Payments of Notes.
Any moneys set aside under section 11.1 and not paid to Holders
of Notes as provided in Section 11.1 shall be held by the Indenture Trustee in
trust until the latest of (i) the date three years after the date of such
setting aside, (ii) the date all other Holders of the Notes shall have received
full payment of all principal of and interest and other sums payable to them on
such Notes or the Indenture Trustee shall hold (and shall have notified such
Persons that it holds) in trust for that purpose an amount sufficient to make
full payment thereof when due and (iii) the date the Owner Trustee shall have
fully performed and observed all its covenants and obligations contained in this
Indenture with respect to the Notes; and thereafter shall be paid to the Owner
Trustee by the Indenture Trustee on demand; and thereupon the Indenture Trustee
shall be released from all further liability with respect to such moneys; and
thereafter the Holder. of the Notes in respect of which such moneys were so paid
to the Owner Trustee shall have no rights in respect thereof except to obtain
payment of such moneys from the Owner Trustee. upon the setting aside of such
moneys, interest shall cease to accrue on the Notes.
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SECTION 11.3. Transfers Not to Affect Indenture or Trusts.
No Holder of a Note shall have legal title to any part of the
Lease Indenture Estate. No transfer, by operation of law or otherwise, of any
Note or other right, title and interest of any Holder of a Note in and to the
Lease Indenture Estate or hereunder shall operate to terminate this Indenture or
the trusts hereunder with respect to such Note or entitle any successor or
transferee of such Holder to an accounting or to the transfer to it of legal
title to any part of the Lease Indenture Estate.
SECTION 11.4. Binding Effect of Sale of Lease Indenture Estate.
Any sale or other conveyance of the Lease Indenture Estate or
any part thereof by the Indenture Trustee made pursuant to the terms of this
Indenture or the Facility Lease shall bind the Holders of the Notes and shall be
effective to transfer or convey all right, title and interest of the Indenture
Trustee, the Owner Trustee and such Holders in and to the same. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such sale or conveyance or as to the application of
any sale or other proceeds with respect thereto by the Indenture Trustee.
SECTION 11.5. Limitation as to Enforcement of Rights, Remedies
and Claims.
Nothing in this Indenture, whether express or implied, shall
be construed to give to any person, other than the Owner Trustee, the Owner
Participant, the Lessee (to the extent the Lessee's consent or other action by
the Lessee is expressly provided for), the Indenture Trustee and the Holders of
the Notes, any legal or equitable right, remedy or claim under or in respect of
this Indenture or any Note.
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SECTION 11.6. Notices.
Unless otherwise expressly specified or permitted by the terms
hereof, all communications and notices given hereunder to the Lessee, the Owner
Trustee, the Owner Participant or the Indenture Trustee shall be given in the
manner provided in Section 16 of the Participation Agreement. Notices by the
Indenture Trustee to any Holder of a Note shall be in writing and shall be given
in person or by means of telex, telecopy or other wire transmission (with
request for assurance of receipt in a manner typical with respect to
communications of that type), or mailed by registered or certified mail,
addressed to such Holder at the address set forth in the register kept pursuant
to Section 4.1. Whenever any notice in writing is required to be given by the
Indenture Trustee to any Holder of a Note such notice shall be effective (x) if
sent by telex, telecopy or other wire transmission, on the date of transmission
thereof, or (y) if sent by mail, three Business flays after being mailed.
SECTION 11.7. Separability of Provisions
In case any one or more of the provisions of this Indenture or
any application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
hereof and any other application hereof shall not in any way be affected or
impaired.
SECTION 11.8. Benefit of Parties, Successors and Assigns.
All representations, warranties, covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee, the Indenture Trustee and their respective successors and assigns and
each Holder of a Note, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by any Holder of a Note shall bind
the successors and assigns of such Holder and any Holder of a Note issued in
transfer or exchange of such Note.
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SECTION 11.9. Survival of Representations and Warranties.
All representations and warranties made with respect to the
Notes shall survive the execution and delivery of this Indenture and the issue,
sale and delivery of any Notes and shall continue in effect so long as any Note
issued hereunder is outstanding and unpaid.
SECTION 11.10. Bankruptcy of the Owner Trustee.
If (a) the Owner Trustee becomes a debtor subject to the
reorganization provisions of the Bankruptcy Code, or any successor provision,
(b) pursuant to such reorganization provisions the owner Trustee is required, by
reason of the Owner Trustee being held to have recourse liability directly or
indirectly to the Holder of any Note or the Indenture Trustee, to make payment
on account of any amount payable as principal or interest on such Note and (a)
such Holder or the Indenture Trustee actually receives any Excess Amount (as
hereinafter defined) which reflects any payment by the Owner Trustee on account
of clause (b) of this section1 then such Holder or the Indenture Trustee, as the
case may be, shall promptly refund to the Owner Trustee such Excess Amount,
"Excess Amount" means the amount by which such payment exceeds the amount which
would have been received on or prior to the date of such payment by such Holder
or the Indenture Trustee if the Owner Trustee had not become subject to the
recourse liability referred to in clause (b) of this Section. Nothing contained
in this Section shall prevent such Holder or the Indenture Trustee from
enforcing any recourse obligation (and retaining the proceeds thereof) of the
Owner Trustee expressly provided for under this Indenture or in the Notes.
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SECTION 11.11. Bankruptcy of the Owner Participant.
The Indenture Trustee and the Holders of the Notes shall be
bound by the provisions of Section 19(f) of the Participation Agreement.
SECTION 11.12. Counterpart Execution.
This Indenture and any amendment or supplement to this Indenture
may be executed in any number of counterparts and by the different parties
hereto and thereto on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.13. Dating of Indenture.
Although this Indenture is dated for convenience and for the
purpose of reference as of the date mentioned, the actual date or dates of
execution by the Owner Trustee and the Indenture Trustee are as indicated by
their respective acknowledgments hereto annexed.
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IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have
each caused this Indenture to be duly executed by their respective officers
thereunto duly authorized, all as of the date first set forth above.
THE FIRST' NATIONAL BANK OF
BOSTON, not in its individual
capacity, but solely as Owner Trustee
under the Trust Agreement dated as of
July 31, 1986 with Chase Manhattan
Realty Leasing Corporation
By /s/ M ▇. ▇▇▇▇▇
------------------------------
Assistant Vice President
CHEMICAL BANK
By /s/ ▇. ▇. ▇▇▇▇▇
-----------------------------
Vice President
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NEW YORK )
On ,the 30th day of July, 1986, before me personally came ▇.
▇. ▇▇▇▇▇, to me known, who, being by me duly sworn, did acknowledge, depose and
say that he resides at Boston, Massachusetts; that he is an Assistant Vice
President of THE FIRST NATIONAL BANK 0F BOSTON, a national banking association,
described in and which executed the foregoing instrument; that he knows the seal
of said association; that the seal affixed to said instrument is such seal; that
it was so affixed by authority of the by-laws of said association; and that he
signed his name thereto on behalf of said association by like order.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Notary Public
[NOTARIAL SEAL] Term Expires:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 41-341160
Qualified in Queens County
Commission Expires: March 30, ▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NEW YORK )
On the 30th day of July, 1986, before me personally came ▇.▇.
▇▇▇▇▇, to me known, who, being by me duly sworn, did acknowledge, depose and say
that he resides at Bethpage, New York; that he is a Vice president of CHEMICAL
BANK, a New York banking corporation, described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such seal; that it was so affixed by authority of
the board of directors of said corporation; and that he signed his name thereto
on behalf of said corporation by like order.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Notary Public
[NOTARIAL SEAL] Term Expires.:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 41-341160
Qualified in Queens County
Commission Expires: March 30, 1987
-66-
EXHIBIT A
TO
INDENTURE
FORM OF INITIAL SERIES NOTE
The Initial Series Note shall be substantially in the following form, with such
omissions, insertions and variations as the Owner Trustee may determine with the
approval of the Indenture Trustee and are not inconsistent with the provisions
of the Indenture or as may be provided for in the Indenture:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED
FOR SALE IN VIOLATION OF SUCH ACT
NONRECQURSE PROMISSORY NOTED, INITIAL SERIES
Issued at: New York, New York
Issue Date: August 1, 1986
THE FIRST NATIONAL BANK OF BOSTON, not in its individual
capacity, but solely as owner trustee (Owner Trustee) under a Trust Agreement
dated as of July 31, 1986 with Chase Manhattan Realty Leasing Corporation (the
Owner Participant), hereby promises to pay to FIRST PV FUNDING CORPORATION, or
registered assigns, the principal sum of Forty Million Dollars ($40,000,000) (to
the extent remaining unpaid on such date) on January 15, 2015, and to pay
interest on the remaining unpaid principal amount hereof from the date hereof,
or from the most recent interest payment date to which interest has been paid or
duly provided for, quarterly on January 15, April 15, July 15 and October 15 in
each year, commencing October 15, 1986, at the rate equal to the Variable Rate
(as defined below) per annum, until the principal hereof is paid in full or Made
available for payment.
A-1
Said principal shall be payable in installments consisting of 54 installments of
principal commencing on July 15, 1988, and on each January 15 and July 15
thereafter, to and including January 15, 2015, each such principal installment
to be equal to the percentage of the original principal amount hereof set forth
in Schedule X hereto for the date such installment is due.
The "Variable Rate" shall mean the Applicable Percentage (as defined
below) of the rate of interest per annum equal to the prime commercial lending
rate of The Chase Manhattan Bank, N.A., as announced from time to time at its
principal office in New York, New York. The "Applicable Percentage" shall equal
(1) 100% for the period from August 1, 1986 through January 30, 1987, (ii) 125%
for the period from January 31, 1987 through April 30, 1987, (iii) 150% for the
period from May 1, 1987 through July 30, 1987, and (iv) 200% thereafter. All
payments of interest shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be.
Capitalized terms used in this Initial Series Note which are
not otherwise defined herein shall have the meanings ascribed thereto in the
Indenture (as hereinafter defined).
In the event any date on which a payment is due under this
Initial Series Note is not a Business Day, then payment thereof may 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.
All payments of principal, premium, if any, and interest to be
made by the Owner Trustee hereunder and under the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of July 31, 1986, as at any
time hereafter amended or supplemented in accordance with the provisions thereof
A-2
(the Indenture), between the Owner Trustee and Chemical Bank, as Trustee (the
Indenture Trustee), shall be made only from the Lease Indenture Estate and the
Trust Estate and the Indenture Trustee shall have no obligation for the payment
thereof except to the extent that the Indenture Trustee shall have sufficient
income or proceeds from the Lease :Indenture Estate to make such payments in
accordance with the terms of Article V of the Indenture. The Holder hereof, by
its acceptance of this Initial Series Note, agrees that such Holder will look
solely to the income and proceeds from the Lease Indenture Estate to the extent
available for distribution to the Holder hereof as above provided, and that
neither the Owner Participant, nor, except as expressly provided in the
Indenture, the Owner Trustee nor the Indenture Trustee is or shall be personally
liable to the Holder hereof for any amounts payable under this Initial Series
Note or for any performance to be rendered under the Indenture or any other
Transaction Document or for any liability thereunder provided, however, that in
the event the Lessee shall assume all the obligations of the Owner Trustee
hereunder and under the Indenture pursuant to section 3.9(b) of the Indenture,
then all the payments to be made under this Note shall be made only from
payments made by the Lessee in accordance with the Assumption Agreement referred
to in said section 3.9(b) and the Holder of this Note agrees that in such event
it will look solely to the Lessee for such payment.
Principal, premium, if any, and interest shall be payable, in
the manner provided in the Indenture, on presentment of this Initial Series Note
at the Indenture Trustee Office, or as otherwise provided in the Indenture.
The Holder hereof, by its acceptance of this Initial Series
Note, agrees that each payment received by it hereunder shall be applied in the
manner set forth in Section 3.11 of the Indenture. The solder of this Initial
Series Note agrees, by its acceptance hereof, that it will duly note by
appropriate means all payments of principal or interest made hereon and that it
will not in any event transfer or otherwise dispose of this Initial Series Note
unless and until all such notations have been duly made.
A-3
This Initial Series Note is the Initial Series Note referred
to in the Indenture. The Indenture permits the issuance of additional series of
Notes, as provided in Section 3.5 of the Indenture, and the several series may
be for varying aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Least Indenture Estate are pledged to the
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 Initial
series 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 Holders of, and the nature and extent of the security for, this
Initial Series 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
Trustee, 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 the Initial series Note.
This Initial Series Note is subject to mandatory prepayment in
full as provided in section 5.2 of the Indenture, such prepayment being without
premium but including accrued interest to the date of prepayment. In addition
this Initial Series note is subject to special prepayment, in whole only, on the
date on which the Fixed Rate Note is issued in accordance with section 3.5 of
the Indenture, by giving written notice to the Indenture Trustee and the Holder
of this Initial Series Note at least one Business Day prior to such date, such
prepayment being without premium, together with accrued interest to the date of
prepayment.
A-4
In case an Indenture Event of Default shall occur and be continuing the
unpaid balance of the principal of this Initial Series Note and any other Notes
together with all accrued but unpaid interest thereon may, subject to certain
rights of the Owner Trustee or 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. Upon such declaration there shall also be
due and payable as a special premium on this Initial Series Note an amount equal
to a ratable portion of the fees and expenses then payable to the Collateral
Trust Trustee, as certified to the Indenture Trustee by the collateral Trust
Trustee.
The lien upon the Lease Indenture Estate is subject to being legally
discharged prior to the maturity of this Initial Series Note upon the deposit
with the Indenture Trustee of cash or certain securities sufficient to pay this
Initial Series Note when due or an assumption of the obligation of the Owner
Trustee under this Initial Series Note and the Indenture, in each case in
accordance with the terms of the Indenture.
There shall be maintained at the Indenture Trustee's office a register
for the purpose of registering transfers and exchanges of Notes in the manner
provided in the Indenture. The transfer of this Initial Series Note is
registrable, as provided in the Indenture, upon surrender of this Initial Series
Note for registration of transfer duly accompanied by a written instrument of
transfer duly executed by or on behalf of the registered Holder hereof, together
with the amount of any applicable transfer taxes. Prior to due presentment for
registration of transfer of this Initial Series Note, the Owner Trustee and the
Indenture Trustee may treat the person in whose name this Initial Series Note is
registered as the owner hereof for the purpose of receiving payments of
principal of, and premium if any, and interest on this Initial Series Note and
for all other purposes whatsoever, whether or not this Initial Series Note be
overdue, and neither the Owner Trustee nor the Indenture Trustee shall be
affected by notice to the contrary.
A-5
This Initial Series Note shall be governed by the laws of the State of
New York.
IN WITNESS WHEREOF, the Owner Trustee has caused this Initial Series
Note to be duly executed as of the date hereof.
THE FIRST NATIONAL BANK OF BOSTON, not
in its individual capacity, but solely
as Owner Trustee under a Trust
Agreement dated as of July 31, 1986
with Chase Manhattan Realty Leasing
Corporation
By
--------------------------------
Assistant Vice President
This Note is one of the Series of Notes referred to therein and in the
within-mentioned Indenture.
CHEMICAL BANK,
as Indenture Trustee
By
--------------------------------
Authorized Officer
A-6
ASSIGNMENT
Date: August 1, 1986
For value received, the undersigned hereby sells, assigns and
transfers to CHEMICAL BANK, as Trustee pursuant to the Collateral Trust
Indenture dated as of December 16, 1985, as amended and supplemented, among the
undersigned, Public Service Company of New Mexico and said Trustee, without
recourse, the Initial Series Note to which this Assignment is annexed and all
rights thereunder.
FIRST PV FUNDING CORPORATION
By
-------------------------
Vice President
A-7
SCHEDULE X
to
INITIAL SERIES
NOTE
Date Principal Amount
---- ----------------
July 15, 1989 0.5972134%
January 15, 1989 0.8241794
July 15, 1989 0.8653883
January 15, 1990 0.9086578
July 15, 1990 0.9540906
January 15, 1991 1.0017952
July 15, 1991 1.0518849
January 15, 1992 1.1044792
July 15, 1992 1.1597031
January 15, 1993 1.2176883
July 15, 1993 1.2785727
January 15, 1994 1.3425013
July 15, 1994 1.4096264
January 15, 1995 1.4801077
July 15, 1995 1.5541131
January 15, 1996 1.6318188
July 15, 1996 1.7134097
January 15, 1997 1.7990802
July 15, 1997 1.8890342
January 15, 1998 1.9834859
July 15, 1998 2.0826602
January 15, 1999 2.1867932
July 15, 1999 2.2961329
January 15, 2000 2.4109395
July 15, 2000 2.5314865
January 15, 2001 2.6580608
July 15, 2001 2.7909639
January 15, 2002 2.3233915
A-8
July 15, 2002 1.7247869%
January15, 2003 1.4465925
July 15, 2003 1.7366326
January 15, 2004 1.4625916
July 15, 2004 1.8222554
January 15, 2005 1.5343060
July 15, 2005 1.9121376
January 15, 2006 1.6095839
July 15, 2006 2.0064425
January 15, 2007 1.6885660
July 15, 2007 2.1053877
January 15, 2008 1.7714343
July 15, 2008 2.2092016
January 15, 2Q09 1.8583802
July 15, 2009 2.3181236
January 15, 2010 1.9496043
July 15, 2010 2.4324051
January 15, 2011 2.0453171
July 15, 2011 2.5523099
January 15, 2012 2.1457395
July 15 2012 2.6781146
January 15, 2013 2.2511032
July 15 2013 2.8101095
January 15, 2014 2.3616513
July 15, 2014 2.9485993
January 15, 2015 3.5713649
A-9
EXHIBIT B
ASSUMPTION AGREEMENT
TO: The Holders (as defined below) from time to time at the Notes (as
defined below) of The First national flank of Boston, not in its
individual capacity, but solely as owner trustee under a Trust
Agreement dated as a! July 31, 1986 with chase Manhattan Leasing
Realty corporation (in such capacity, the "Issuer") under the Trust
Indenture, Mortgage, Security Agreement, and Assignment of Rents
(the Indenture) dated as of July 31, 1986 among the Issuer and
Chemical Bank (the "Trustee").
The undersigned, PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico
corporation (the "Obligor"), for the purpose of satisfying in part its
obligation to make certain payments under that certain Facility Lease dated as
of July 31, 1986 between the Issuer and the Obligor (the "Facility Lease"), does
hereby covenant and agree with the Holders (as defined in the Indenture) from
time to time of the Notes (as defined in the Indenture) as follows:
SECTION 1. The Obligor does hereby agree to, and does hereby,
assume unconditionally the payment of the principal of the Notes and of the
interest and premium (if any) thereon, at the rates provided in the Notes, when
and as the same shall become due and payable, whether at maturity or upon
mandatory prepayment or upon declaration or otherwise, according to the terms of
the Notes and of the Indenture.
B-1
SECTION 2. The assumption herein contained shall be binding
upon the obligor, its successors and assigns and shall remain in full force and
effect irrespective of the power or authority of the :Issuer to issue the Notes
or to execute, acknowledge and deliver the Indenture or the validity of the
Notes, or the Indenture, or of any defense whatsoever that the Issuer may or
might have to the payment of the Notes (principal, interest or premium), or to
the performance or observance of any of the provisions or conditions of the
Indenture or any Note, or of the existence or continuance of the Issuer as a
legal entity; nor shall said assumption be affected by the merger,
consolidation, or other dissolution of the Issuer or the sale or other transfer
of the property of the Issuer or by the Issuer as an entirety, or substantially
so, to any other person; nor shall the assumption be discharged or impaired by
any act, failure or omission whatsoever on the part of any Holder of any Notes
or the Trustee, including, among other such acts, failures and omissions, the
following:
(a) any failure to present any Note for payment or to demand
payment thereof, or to give to the obligor notice of dishonor and
non-payment of any Note when and as the same may become due and payable,
or notice of any failure on the part of the Issuer to do any act or
thing or to perform or keep any covenant or agreement by it to be done,
kept or performed under the terms of Notes or the Indenture;
(b) any extension of the obligation of any Note, either
indefinitely or for any period of time, or any other modification in the
obligations under any Note or the Indenture or of the Issuer thereon or
in connection therewith;
(c) any act or failure to act with regard to any Note or the
Indenture or anything which might vary the risk of the obligor; and
B-2
(d) any action taken under the Indenture and the Notes in the
exercise of any right or power thereby conferred or any failure or
omission on the part of the Trustee or the Holder of any Note to enforce
any right or security given under the Indenture or any Note, or any
waiver of any right or any failure or omission on the part of the
Trustee or any Holder of any Note to enforce any right of any Holder of
any Note against the Issuer;
provided, always, that the specific enumeration of the above mentioned acts,
failures, waivers or omissions shall not be deemed to exclude any other acts,
failures, waivers or omissions though not specifically mentioned herein, it
being the purpose and intent of this Assumption Agreement that the obligation of
the obligor shall be absolute and unconditional to the extent herein specified
and shall not be discharged, impaired or varied except by the payment of the
principal of and interest on any Note and any premium thereon in case of
prepayment1 and then only to the extent of such payments.
SECTION 3. (a) Subject to the requirements of sections 10(b) (3) (iii)
and (b) (3) (iv) of the participation Agreement and to the provisions of
paragraph (b) of this section, nothing contained in this Assumption Agreement
shall prevent any consolidation or merger of the obligor with or into any other
corporation or corporations (whether or not affiliated with the obligor), or
successive consolidations or mergers in which the obligor or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all the property of the obligor, to any other
corporation authorized to acquire and operate the same; provided, however, and
the obligor hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease, all obligations of the Obligor under this
Assumption Agreement on or in respect of any Note, and the due and punctual
performance and observance of all of the covenants and conditions of this
Assumption Agreement to be performed by the Obligor, shall be expressly and duly
assumed, by an agreement reasonably satisfactory in form and substance to the
Trustee, executed and delivered by the corporation (if other than the obligor)
formed by such consolidation, or into which the obligor shall have been merged,
or by the corporation which shall have acquired such property.
B-3
(b) The Indenture Trustee (as defined in the Indenture), subject to
applicable provisions of the Indenture, may rely upon an opinion of counsel to
the Obligor as conclusive evidence that any such merger, consolidation, sale or
conveyance complies with the provisions of this Section.
SECTION 4. The Obligor does hereby consent to all of the terms and
conditions of each Note Series and of the Indenture, and hereby waives any and
all rights of notice of any fact or facts or circumstance or circumstances
whatsoever and consents to any extension or extensions of time of any payment or
payments, or of any other act or thing which any Bolder or Holders of any Note
or the Issuer may agree to consent to, either expressly, by acquiescence or
otherwise, and hereby agrees not to claim or enforce any rights of subrogation
or any other right or privilege which might otherwise arise on account of any
payment made by it or act or thing done by it on account of or in accordance
with its assumption herein contained, unless and until all of the Notes have
been fully paid and discharged.
SECTION 5. The assumption herein expressed may be transferred or
assigned at any time or from time to time and shall be considered to be
transferred and assigned upon the transfer of any Note, whether with or without
the consent of or notice to the obligor or the Issuer. The Obligor hereby agrees
to execute and deliver such instruments and to do such acts and things requested
by the Trustee as shall be reasonably necessary to carry out and effectuate the
purposes and intents of this Assumption Agreement. This Assumption Agreement may
not be amended or modified in any respect without the prior written consent
(evidenced as provided in the Indenture) of the Holders of not less than a
majority in principal amount of the Notes outstanding (as defined in the
Indenture); provided, however, that without the written consent of the Holders
of all of the Notes outstanding, no such amendment or modification shall be
effective which will change any of the provisions of sections 1, 2, 4 or S of
this Assumption Agreement. The Obligor agrees to file with the Indenture Trustee
a duplicate original of each such consent.
B-4
6091.50.2831.57:1
PUBLIC SERVICE COMPANY OF NEW
MEXICO
By
-----------------------------
Title:
ATTEST:
-----------------------
Title:
B-5
EXHIBIT C
UNDIVIDED INTEREST SUPPLEMENTAL INDENTURE
SUPPLEPIENTAL INDENTURE NO. dated as of _________ to the TRUST
INDENTURE, MORTOAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS (hereinafter,
together with supplements thereto, the Indenture) dated as of July 31, 1986,
between THE FIRST NATIONAL BANK OF BOSTON (FNB), not in its individual capacity,
but solely as trustee (the Owner Trustee) under a Trust Agreement, dated as of
July 31, 1986, between FNB, whose address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Chase Manhattan Realty Leasing Corporation, and
CHEMICAL BANK, a New York banking corporation (the Indenture Trustee), whose
address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, in accordance with Section 9(j) of the Facility Lease, the
Owner Trustee is obligated, in certain cases, to cause the Undivided Interest
and the Real Property Interest to be subjected to the Lien of the Indenture; and
WHEREAS, in order to further secure the obligations referred to in the
Indenture, the Owner Trustee desires to grant to the Indenture Trustee the
security interest and realty mortgage herein provided and the parties hereto
desire that the Indenture be regarded (i) to the extent that the Undivided
Interest constitutes personal property, as a "security agreement" and as a
"financing statement" under the Uniform Commercial Code and (ii) to the extent
that the Undivided Interest and the Real Property Interest constitute fixtures
or real property, as a realty mortgage;
C-1
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.1. The Indenture. This supplemental Indenture No.______ shall
be construed as supplemental to and amendatory of the Indenture and shall form a
part thereof, and the Indenture is hereby incorporated by reference herein and
is hereby ratified, approved and confirmed.
SECTION 1.2. Definitions. Capitalized terms used herein, but which are
not otherwise defined herein shall have the meanings set forth in Appendix A to
the Indenture.
SECTION 1.3. Recording. Information. The Indenture was recorded on
___________ , in Maricopa County, Arizona [describe] (specify other recorded
documents) [specify other places of recordation).
SECTION 1.4. Governing Law. This supplemental Indenture No. and the
Indenture shall, for all purposes,. be construed in accordance with and governed
by the laws of the State of New York except to the extent that the laws of the
State of Arizona shall be mandatorily applicable thereto.
SECTION 1.5. Security Interest and Realty Mortgage. As further security
for the due and punctual payment of the principal of and premium, if any, and
interest on the Notes according to their respective terms and effect and the
performance and observance by the Owner Trustee of all the covenants and
agreements made by it or on its behalf in the Notes, the Participation Agreement
and the Indenture, the Owner Trustee does, by its execution and delivery hereof,
hereby grant a security interest in, bargain, convey, warrant, assign, transfer,
mortgage, pledge and set over unto the Indenture Trustee, and to its successors
and assigns in trust, the following (which shall be a part of the Lease
Indenture Estate for all purposes of the Indenture and the other Transaction
Documents):
C-2
(l) the Undivided Interest and the Real Property Interest,
including, but without limitation, the Owner Trustee's share of all
Capital Improvements (including any which constitute fixtures under
Applicable Law) now existing or which hereafter may become part of the
Undivided Interest;
(2) all right, title and interest of the Owner Trustee in, to
and under (a) the ▇▇▇▇ of Sale, (b) the ANPP Participation Agreement,
(a) the need and (C) the Assignment of Beneficial Interest, including,
but without limitation, all amounts of Rent, insurance proceeds and
condemnation, requisition and other awards and payments of any kind for
or with respect to any part of the Lease Indenture Estate as
contemplated in such documents;
(3) all other property of every kind and description, real,
personal and mixed, and interests therein now held or hereafter acquired
by the Owner Trustee pursuant to any term of any Transaction Document,
whether or not subjected to the Lien of the Indenture by an indenture
supplemental hereto; and
(4) all proceeds of the foregoing;
but excluding, however, (i) such of the foregoing as, in accordance with the
terms of the Indenture, shall have been released from the lien of the Indenture
and distributed to the Owner Trustee or the Owner Participant, as the case may
be, and (ii) any and all Excepted Payments; and subject, however, to (x) the
terms and provisions of the Indenture and (y) the rights of the Lessee under the
Facility Lease.
TO HAVE AND TO HOLD all the aforesaid proper ties, rights and
interests unto the Indenture Trustee, its successors and assigns forever, but in
trust, nevertheless, for the use and purposes and with the power and authority
and subject to the terms and conditions mentioned and set forth in the
Indenture.
C-3
UPON CONDITION that, unless and until an Indenture Event of
Default shall have occurred and be continuing, the Owner Trustee shall be
permitted, to the exclusion of the Indenture Trustee, to possess and use the
Lease Indenture Estate and exercise all rights with respect thereto and, without
limitation of the foregoing; the Owner Trustee may exercise all of its rights
under the documents specified in clause (2) above to the same extent as if its
right, title and interest therein had not been assigned to the Indenture Trustee
to the extent set forth above, except that the Indenture Trustee shall receive
all payments of Assigned Payments and all moneys and securities required to be
held by or deposited with the Indenture Trustee hereunder.
The Owner Trustee hereby warrants and represents that it has
not assigned or pledged any of its right, title or interest in and to the Lease
Indenture Estate to anyone other than the Indenture Trustee.
SECTION 1.6. Real Estate Remedies. In addition to the remedies
specified in the Indenture (including but without limitation Section 6.4
thereof) or otherwise available pursuant to Applicable Law, to the extent that
any portion of the Lease Indenture Estate constitutes fixtures or real property,
the Indenture and this Supplemental Indenture No. shall be, and shall be deemed
to be, a realty mortgage and assignment of rents with respect to all items of
real property and fixtures and the Indenture Trustee shall have all the rights,
remedies and benefits of a mortgage of real property under Applicable Law
(including, but without limitation, rights and remedies pursuant to Arizona
Revised Statutes Section 33-702.8, or any comparable successor provision) and
the Owner Trustee shall be and be deemed to be, a mortgagor with respect to such
fixtures and real property.
C-4
6091.50.2831.57:1
SECTION 1.7. Certain Releases. In case a release from the
security and other interests created by Section 1.5 hereof by the Indenture
Trustee of a portion of the undivided Interest shall be necessary in order to
enable the Owner Trustee or the Lessee to perform its covenants and agreements
set forth in the Transaction Documents or in the ANPP Participation Agreement or
the Owner Trustee or the Lessee to carry out any action required by Section 8 of
the Facility Lease, the Indenture Trustee shall execute and deliver to, or as
directed by, the Owner Trustee or the Lessee an appropriate instrument or
instruments provided to the Indenture Trustee by the Owner Trustee or the Lessee
(in due form for filing or recording), so releasing a portion of the Undivided
Interest, provided, however, that the Indenture Trustee shall have first
received an Officer's Certificate in form and substance reasonably satisfactory
to the Indenture Trustee, executed by the Lessee, accompanied by an opinion of
counsel reasonably satisfactory to the Indenture Trustee, each of which shall be
to the effect that all necessary actions have been or are being taken
simultaneously with such release in connection with the proposed action to
comply with the terms of this Indenture and Section 8 of the Facility Lease.
SECTION 1.8. Severance. The parties hereto understand and
agree that Unit 1 and the Common Facilities (including the Undivided Interest),
each Capital Improvement and each part thereof is or shall be severed, and shall
be and remain severed, from the real estate constituting the PVNGS Site and even
if physically attached thereto, shall retain the character of personal property,
shall be treated as personal property with respect to the rights of all persons
whomsoever, shall not be or become fixtures or otherwise part of the real estate
constituting the PVNGS Site, and, by virtue of its nature as personal property,
shall not be affected in any way by any instrument dealing with the real estate
constituting the PVNCS Site.
C-5
6091.50.2831.57:1
SECTION 1.9. ANPP Participation Agreement. The provision by
the Owner Trustee to the Indenture Trustee of the realty mortgage and the
security interest contemplated by this Supplemental Indenture No. __ is in
compliance with the provisions of the ANPP Participation Agreement, including,
but without limitation, Section 15.6.3.2 thereof.
SECTION 1.10. Appointment of Co-Trustees or Separate Trustees.
(a) At any time or times, when necessary or prudent or for the
purpose of meeting the legal requirements of any jurisdiction in which any part
of the Lease Indenture Estate may, at any time, be located, the Indenture
Trustee, except as set forth in subsection (b)(6) of this section 1.10, may, and
upon receipt of a Directive shall, appoint one or more Persons to act as
co-trustee of all or any such part of the Lease Indenture Estate or to act as
separate trustee of any property constituting part thereof, in either case with
such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons any property, title, right or power deemed necessary or
desirable, subject to the remaining provisions of this Section 1.10. Except as
set forth in subsection (b)(6) of this Section 1.10 the Owner Trustee shall join
in any such appointment upon the request of the Indenture Trustee, but such
joining will not be necessary for the effectiveness of such appointment.
(b) Every separate trustee or co-trustee shall be appointed
subject to the following terms:
(1) The rights, power., duties and obligations conferred or
imposed upon any such separate trustee or co-trustee shall not be
greater than those conferred or imposed upon the Indenture Trustee, and
such rights and powers shall be exercisable only jointly with the
Indenture Trustee, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Indenture Trustee shall be incompetent or unqualified to perform
such act or acts, in which event, except as set forth in subsection (b)
(6) of this Section 1.10, such rights and powers shall be exercised by
such separate trustee or co-trustee subject to the provisions of
subsection (b) (4) of this Section 1.10.
C-6
(2) The Indenture Trustee may at any time, by an instrument in
writing executed by it, accept the resignation of, and may (and upon the
receipt of a Directive, shall) remove any separate trustee or co-trustee
appointed under this section 1.10.
(3) No trustee under the Indenture and this Supplemental
Indenture No.____ shall be liable by reason of any act or omission of
any other trustee or co-trustee under this Indenture.
(4) Except as set forth in subsection (b) (6) of this Section
1.10, no power given to such separate trustee or co-trustee shall be
separately exercised hereunder by such separate trustee or co-trustee
except with the consent in writing of the Indenture Trustee.
(5) The Indenture Trustee shall maintain custody of all money
and securities.
(6) Notwithstanding anything contained to the contrary in this
Section 1.10, 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 Trustee, at the instruction of the
Indenture Trustee, shall appoint a separate trustee for such
jurisdiction, which separate trustee shall have full power and
authority to take all action hereunder as to matters relating to such
jurisdiction without the consent of the Indenture Trustee, but subject
to the same limitations in any exercise of his power and authority as
those to which the Indenture Trustee is subject.
C-7
(c) Upon the acceptance in writing of such appointment by any such
separate trustee or co-trustee, it shall be vested with the estates or property
to which its appointment relates as specified in the instrument of appointment,
subject to all the terms of the Indenture and this Supplemental Indenture No.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Indenture Trustee, its agent or attorney-in-fact, with full power and authority,
to the extent not prohibited by Law, to do any lawful act under or in respect of
the Indenture and this Supplemental Indenture No.______ on its behalf and in its
name. If a separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 1.11. Separability of Provisions. In case any one or more of
the provision. of this Supplemental Indenture No. __ or any application thereof
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions hereof and the Indenture
and any other application hereof and thereof shall not in any way be affected or
impaired.
SECTION 1.12. Counterpart Execution. This Supplemental Indenture No. __
may be executed in any number of counterparts and by the different parties
hereto and thereto on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
C-8
IN WITNESS WHEREOF, the owner Trustee and the Indenture Trustee have
each caused this Indenture to be duly executed by their respective officers
thereunto duly authorized, all as of the date first set forth above.
THE FIRST NATIONAL BANK OF BOSTON not
in its individual capacity, but
solely as Owner Trustee under the
Trust Agreement dated as of July 31,
1986, with Chase Manhattan Realty
Corporation
By
--------------------------------
Assistant Vice President
CHEMICAL BANK
By
---------------------------------
Vice President
C-9
SCHEDULE 1
to
INDENTURE
UNDIVIDED INTEREST DESCRIPTION
The Undivided Interest is a (i) 1.133333% undivided interest
in and to the property described under A below and (ii) a .377777% individed
interest in and to the property described in B below.
A. Unit 1 of the Palo Verde Nuclear Generating station
(PVNGS)1 located in Maricopa County, Arizona, approximately 55 miles west of the
City of phoenix, Arizona, and approximately 16 miles west of the City of
Buckeye, Arizona, consisting of:
I. Unit 1 Combustion Engineering "System 80" pressurized water
reactor nuclear steam supply system (the NSSS). The N858 is
comprised Of a reactor vessel containing 241 fuel assemblies
with approximately 100 tons of enriched uranium (fuel
assemblies, however, are not part of Unit 1 and are not
included in the Undivided Interest being sold), two steam
generators, tour reactor coolant pumps and various additional
systems and subsystems. The licensed thermal rating of the
NSSS is 3800 MW.
II. ▇▇▇▇ ▇ ▇▇ ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇ tandem-compound, six flow, reheat
turbine-generator including turbine, generator, moisture
separator-reheater exciter, controls, and auxiliary
subsystems. The turbine-generator is conductor cooled and
rated at 1,554 MVA at 24,000 V, 3 phase, 60 Hz, 1.5 in Kg ABS
back pressure, and approximately 1,363 Mw maximum gross
electric output.
III. Unit 1 146 ft. inside diameter, steel-lined, prestressed
concrete cylindrical containment building with a hemispherical
dome designed for 60 psig;. The containment building houses
the reactor system.
IV. Unit 1 auxiliary Systems and equipment including engineered
safeguards systems, reactor auxiliary systems and
turbine-generator auxiliary systems associated with items I,
II, and III above, extending to and including the Unit 1
start-up transformer.
V. Unit 1 cooling tower system consisting of three (3) mechanical
draft cooling towers, including a closed cycle circulating
water system, make-up water systems and essential spray ponds.
VI. Unit 1 radioactive waste treatment system, including liquid,
gaseous, and solid waste subsystems, controls,
instrumentation, storage, handling and shipment facilities.
VII. Unit 1 emergency diesel-generator system, including a
diesel-generator building which contains two diesel
generators, fuel oil systems, storage tanks, control and
instrumentation systems and other equipment.
VIII. Unit 1 internal communication systems, including associated
interconnections and computer data links.
-2-
BUT EXCLUDING:
I. Nuclear fuel for Unit 1, including spare fuel assemblies.
II. Spare Parts (Unit 1).
III. Transmission facilities (including any and all facilities and
equipment providing interconnection between the Unit 1 turbine
generator and the ANPP nigh Voltage Switchyard, including
step-up transformers and standby equipment and Systems).
IV. Oil and diesel fuel inventories (Unit1)
B. All PVNGS common facilities, INCLUDING LIMITED TO:
BUT NOT LIMITED TO:
I. Surveillance systems, including associated radioactive
monitoring systems and equipment.
II. Water treatment facilities and transport systems for supply of
waste water effluent.
III. Warehouses and related storage facilities and equipment.
BUT EXCLUDING:
I. Nuclear fuel, including spare fuel assemblies.
II. All transmission and ANPP High Voltage Switchyard facilities.
III. Administration Building.
-3-
IV. Administration Annex Building.
V. Technical Support Center.
VI. Visitor Center.
VII. External communication Systems and equipment, including
associated interconnections and computer data links.
VIII. Parking lot improvements, road improvements, fencing and
dikes.
IX. Spare parts (common facilities).
X. Simulator.
XI. Oil and diesel fuel inventories.
XII. Real property, beneficial interest in Title USA Company of
Arizona Trust No. 530, and Project Agreement interests
described in Exhibit A.
-4-
SCHEDULE 2
to
INDENTURE
REAL ESTATE INTEREST DESCRIPTION
The Real Estate Interest is a (i) .333333% undivided interest
in the land described in I below, a (ii) .377777% undivided interest in the
rights and interests described in I! below, and (iii) a .377777% undivided
interest in the right and interests described in III below.
I. PVNGS PLANT SITE
PARCEL NO. 1: Lot Four (4); the Southwest quarter of the Northwest quarter; and
the West half of the Southwest quarter, all in Section Two (2), Township One (1)
South, Range Six (6) West of the Qua and Salt River Base and Meridian, Maricopa
County; Arizona.
PARCEL NO. 2: All of Section Three (3), Township One (1)South, Range Six (6)
West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona.
PARCEL NO. 3: The East half of Section Four (4), Township One (1) South, Range
Six (6) West of the Gila and Salt River Base and Meridian, Maricopa County,
Arizona.
PARCEL MC. 4: The West half of Section Twenty-six (26), Township One (1) North,
Range Six (6) West of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona.
PARCEL NO. 5: Section Twenty-seven (27), Township One (1) North, Range Six (6)
West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona;
EXCEPT the Northwest quarter of Section 27.
PARCEL NO. 6: The Southeast quarter of Section Twenty-eight (28), Township One
(1) North, Range Six (6) West of the Gila and salt River Base and Meridian,
Maricopa County, Arizona; EXCEPT 50% of all oil, gas and other mineral deposits
and geothermal resources recovered from or developed on the property, as
reserved in instrument recorded May 10, 1974 in Docket 10647, page 136.
PARCEL NO. 7: The East half of Section Thirty-three (33), Township One (1)
North, Range Six (6) West of the Qua and Salt River Base and Meridian, Maricopa
County, Arizona.
PARCEL NO, 8: All of Section Thirty-four (34), Township One (1) North, Range Six
(6) West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona.
PARCEL NO. 9: The West half of Section Thirty-five (35), Township One (1) North,
Range Six (6) West of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona.
PARCEL NO. 10: The Southeast quarter of Section Nine (9), Township One (1)
South, Range Six (S) West of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona; EXCEPT the Northwest quarter thereof.
PARCEL NO. 11: All of Section Ten (10), Township One (1) South, Range six (6)
West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona;
EXCEPT the East half of the Southeast quarter thereof; and EXCEPT the North half
of the South half of the Northwest quarter of the Northwest quarter thereof.
PARCEL NO. 12: That part of the East half of the Southwest quarter of Section
Twenty-three (23), Township One (1) North, Range Six (6) West of the Gila and
Salt River Base and Meridian, Maricopa County, Arizona, more particularly
described as follows:
BEGINNING at the Southeast corner of the said East half of the
Southwest quarter of Section 23; thence West, an assumed bearing along
the South line of the said East half of the Southwest quarter of Section
23, for a distance of 762.04 feet; thence
-2-
North 0 degrees 03 minutes 39 seconds West; parallel to the East line of
the said East half of the Southwest quarter of Section 23, for a
distance of 1946.46 feet to a point on the South right-of-way line of
the 200 foot wide HASSAYAMPA-SALOME HIGHWAY, as recorded in nook 12 of
Road Maps, page 62, Maricopa County Recorder, Maricopa county1 Arizona;
thence continuing North 0 degrees 03 minutes 39 seconds West for a
distance of 234.15 feet to a point on the North right-of-way line of
said highway; thence south 56 degrees 43 minutes 35 seconds East, along
said North right-of-way line for a distance of 892.17 feet to a point on
the said East line of the East half of the Southwest quarter of Section
23; thence South 0 degrees 03 minutes 39 seconds East, along said East
line for a distance of 234.15 feet to a point on the said South
right-of-way line; thence continuing South 0 degrees 03 minutes 39
seconds East for a distance of 1483.31 feet to the true point of
beginning;
EXCEPT the East 305 feet of the South 305 feet thereof; and
EXCEPT one-half of the minerals and mineral rights and mineral
estates of every kind and nature, as set forth in Deed recorded in
Docket 11652, page 52, Maricopa County Records.
PARCEL NO. 13: The North half of the South half of the Northwest quarter of the
Northwest quarter of Section Ten (10), Township One (1) south, Range Six (6)
West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona.
II. HASSAYAMP PUMPING STATION AND EFFLUENT PIPELINE
All real property, leases, licenses, easements, rights-of-way
and other property held by Title USA Company of Arizona Trust No. 530
established by that certain Trust Agreement dated October 15, 1975, as amended,
but excluding therefrom all improvements.
-3-
III. MISCELLANEOUS REAL PROPERTY INTERESTS
Those ANPP Project Agreements (as defined in the ANPP
Participation Agreement), in addition to the Trust Agreement for Title USA
Company of Arizona Trust 530, consisting of leases, licenses, easements, and
permits, which provide land and land rights for (a) the pipeline to supply waste
water effluent to PVNGS from the 91st Avenue sewage treatment plant serving the
Phoenix Metropolitan area and (b) railroad access to the nuclear Plant Site (as
defined in the ANPP Participation Agreement).
-4-
When Recorded, Return to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
================================================================================
SUPPLEMENTAL INDENTURE NO.1
Dated as of November 18, 1986
To
TRUST INDENTURE MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
Dated as of July 31, 1986
between
THE FIRST NATIONAL BANK OF BOSTON, not
in its individual capacity, but solely
as Owner Trustee under a Trust
Agreement dated as of July 31,
1986 with Chase Manhattan
Realty Leasing Corporation
and
CHEMICAL BANK,
as Indenture Trustee
================================================================================
Original Indenture Recorded August 1, 1986, as
Instrument No. 86-404572 in Maricopa County, Arizona
Recorder's Office.
================================================================================
SUPPLEMENTAL INDENTURE No. 1 dated as of November 18, 1986 to
Trust Indenture, Mortgage, Security Agreement and Assignment Of Rents dated as
of July 31, 1986, between THE FIRST NATIONAL BANK OF BOSTON, a national banking
association (FNB), not in its individual capacity, but solely as Owner Trustee
(the Owner Trustee) under a Trust Agreement dated as of July 31, 1986, between
FNB, whose address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
Chase Manhattan Realty Leasing Corporation, a New York corporation, and CHEMICAL
BANK, a New York banking corporation (the Indenture Trustee), whose address is
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Owner Trustee and the Indenture Trustee have
entered into a Trust Indenture, Mortgage, Security Agreement and Assignment of
Rents dated as of July 31, 1986 (the Indenture) pursuant to which the Owner
Trustee has issued the Initial Series Note;
WHEREAS, Section 3.5(1) of the Indenture provides, among other
things, that the Initial Series Note may be refunded with Additional Notes;
WHEREAS, Section 3.5(4) of the Indenture provides, among other
things, that the Owner Trustee and the Indenture Trustee may enter into
indentures supplemental to the Indenture for, among other things, the purpose of
establishing the terms, conditions and designations of Additional Notes;
WHEREAS, the Owner Trustee desires to issue Additional Notes
to effect a refunding of the Initial Series Note and to enter into this
Supplemental Indenture No. 1 to establish the terms, conditions and designations
of such Additional Notes; and
WHEREAS, Section 10.l(viii) of the Indenture provides that,
without the consent of Holders of the Notes Outstanding, the Indenture Trustee
may, with the written consent of the Owner Trustee, from time to time and at any
time execute a supplement to the Indenture in order to evidence the issuance of
and to provide the terms of Additional Notes;
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in
Appendix A to the Indenture.
SECTION 2. Terms, Conditions and Designations of the Additional Notes.
(a) The Fixed Rate Notes.
There is hereby created and established a separate series of
Notes of the Owner Trustee designated "Nonrecourse Promissory Notes, Fixed Rate
Series" herein referred to as the Fixed Rate Notes. The Fixed Rate Notes shall
be payable as to principal and bear interest on the principal amount thereof as
follows:
Fixed Rate Note Interest Principal
Due Rate Amount
--------------- -------- ---------
January 15, 1992 8.05% $l,501,000
January 15, 1997 8.95% $5,626,000
January 15, 2015 10.15% $32,873,000
------------
$40,000,000
============
Each Fixed Rate Note shall bear interest on the principal amount thereof from
time to time Outstanding from the date thereof until paid at the rate of
interest set forth therein. The principal amount of each Fixed Rate Note shall
be payable as set forth in Schedule 1 attached thereto, as such Schedule may be
adjusted, in the case of the Fixed Rate Note due January 15, 2015, from time to
time in accordance with the terms of the Indenture, this Supplemental Indenture
No. 1 and such Fixed Rate Note. Installments of interest on and principal of
(and premium, if any, on) each Fixed Rate Note shall be due and payable at the
rates of interest and on the dates specified in such Fixed Rate Note. The Fixed
Rate Note due January 15, 1992 shall be substantially in the form of Exhibit A-l
to this Supplemental Indenture No. 1. The Fixed Rate Note due January 15, 1997
shall be substantially in the form of Exhibit A-2 to this Supplemental Indenture
No. 1. The Fixed Rate Note due January 15, 2015 shall be substantially in the
form of Exhibit A-3 to this Supplemental Indenture No. 1.
-2-
(b) Certain Adjustments to Amortization Schedules.
The schedule of principal amortization attached to the Fixed
Rate Note due January 15, 2015 may be adjusted at the discretion of the Owner
Trustee at one time prior to July 15, 1997; provided, however, that no such
adjustment shall be made by the Owner Trustee which will increase or reduce the
average life of such Fixed Rate Note (calculated in accordance with generally
accepted financial practice from the date of initial issuance) by more than two
years; provided, however, such adjustment may be made only in connection with an
adjustment to Basic Rent pursuant to Section 3(d) of the Facility Lease. If the
Owner Trustee shall elect to make the foregoing adjustment, the Owner Trustee
shall deliver to the Indenture Trustee and to the Lessee at least 60 days prior
to the first payment date (specified on the schedule to such Fixed Rate Note)
proposed to be affected by such adjustment, a certificate of the Owner Trustee
(x) stating that the Owner Trustee has elected to make such adjustment, (y)
setting forth the revised schedule of principal amortization for such Fixed Rate
Note and (2) attaching calculations showing that the average life of such Fixed
Rate Note will not be reduced or increased except as permitted by this paragraph
(b). The Indenture Trustee may rely on such Owner Trustee certificate and shall
have no duty with respect to the calculations referred to in the foregoing
clause (z).
SECTION 3. Miscellaneous.
(a) Effective Date of Supplemental Indenture.
This Supplemental Indenture No. 1 shall be and become effective
upon the execution hereof by the parties hereto.
(b) Counterpart Execution.
This Supplemental Indenture No. 1 may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute but one and the same instrument.
(c) Execution as Supplemental Indenture.
-3-
This Supplemental Indenture No. 1 is executed and shall be
construed as an indenture supplemental to the Indenture and, as provided in the
Indenture, this Supplemental Indenture No. 1 forms a part thereof.
(d) Disclosure.
Pursuant to Arizona Revised Statutes Section 33-401, the
beneficiary of the Trust Agreement is Chase Manhattan Realty Leasing
Corporation, a New York corporation. The address of the beneficiary is One chase
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. A copy of the Trust Agreement is
available for inspection at the offices of the Owner Trustee at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Corporate Trust Division.
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee
have each caused this Supplemental Indenture No. 1 to be duly executed by their
respective officers thereunto duly authorized, all as of the date first set
forth above.
THE FIRST NATIONAL BANK OF
BOSTON, not in its individual capacity,
but solely as
Owner Trustee under the
Trust Agreement dated as of
July 31, 1986, with Chase
Manhattan Realty Leasing
Corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Assistant Vice President
CHEMICAL BANK,
By /s/ ▇. ▇. ▇▇▇▇▇
--------------------------
Authorized Officer
-4-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of November, 1986, before me personally came
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to me known, who, being by me duly sworn, did acknowledge,
depose and say that he resides at Boston, Massachusetts; that he is an Assistant
Vice President of THE FIRST NATIONAL BANK OF BOSTON, a national banking
association, described in and which executed the foregoing instrument; and that
he signed his name thereto on behalf of said association by authority of the
Board of Directors of such association.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(NOTARIAL SEAL) Term Expires: Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires March 30, ▇▇▇▇
-▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.
COUNTY OF NEW YORK )
On the 24th day of November, 1986, before me personally came
▇.▇. ▇▇▇▇▇, to me known, who, being by me duly sworn, did acknowledge, depose
and say that he resides at Bethpage, New York; that he is a Vice President of
CHEMICAL RANK, a New York banking corporation, described in and which executed
the foregoing instrument; and that he signed his name thereto on behalf of said
corporation by authority of the Board of Directors of such corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Notary Public
[NOTARIAL SEAL} Term Expires:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in Queens County
Commission Expires, March 30, 1987
-6-
EXHIBIT A-l
TO SUPPLEMENT
NO. 1
FORM OF FIXED RATE NOTE
(DUE JANUARY 15, 1992)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR
OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE PROMISSORY NOTE, FIXED RATE SERIES
(DUE JANUARY 15, 1992)
Issued at: New York, New York
Issue Date: November 25, 1986
THE FIRST NATIONAL BANK or , not in its individual capacity, but
solely as Owner Trustee (Owner Trustee) under a Trust Agreement dated as of July
31, 1986 with Chase Manhattan Realty Leasing Corporation (the Owner
Participant), hereby promises to pay to First PV FUNDING CORPORATION, or
registered assigns, the principal sum of $1,501,000 (One Million Five Hundred
One Thousand Dollars) on January 15, 1992 together with interest (computed on
the basis of a 360-day year of twelve 30-day months) on the aggregate amount of
such principal sum remaining unpaid from time to time from the date of this
Fixed Rate Note until due and payable, in arrears, at the rate of 8.05% per
annum. Payments of principal installments of this Fixed Rate Note shall be made
in the "principal amount payable" and on the "payment dates" specified in
Schedule 1 hereto. Payments of accrued interest on this Fixed Rate Note shall be
made on January 15 and July 15 in each year commencing January 15, 1987 to and
including the last "payment date" specified in Schedule 1 hereto.
Capitalized terms used in this Fixed Rate Note which are not
otherwise defined herein shall have the meanings ascribed thereto in the
Indenture (as hereinafter defined).
Interest on any overdue principal and premium, if any, and (to
the extent permitted by applicable law) any overdue interest, shall be paid, on
demand, from the due date thereof at the rate per annum equal to 9.05% (computed
on the basis of a.360-day year of twelve 30-day months) for the period during
which any such principal, premium or interest shall be overdue.
In the event any date on which a payment is due under this Fixed
Rate Note is not a Business Day, then payment thereof may 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.
All payments of principal, premium, if any, and interest to be
made by the Owner Trustee hereunder and under the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of July 31, 1986, as at any
time heretofore or hereafter amended or supplemented in accordance with the
provisions thereof (the Indenture), between the Owner Trustee and Chemical Bank,
as Trustee (the Indenture Trustee), shall be made only from the Lease Indenture
Estate and the Trust Estate and the Indenture Trustee shall have no obligation
for the payment thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Lease Indenture Estate to make such
payments in accordance with the terms of Article V of the Indenture. The Holder
hereof, by its acceptance of this Fixed Rate Note, agrees that such Molder will
look solely to the Trust Estate and the income and proceeds from the Lease
Indenture Estate to the extent available for distribution to the Holder hereof
as above provided, and that neither the Owner Participant nor, except as
expressly provided in the Indenture, the Owner Trustee nor the Indenture Trustee
is or shall be personally liable to the Holder hereof for any amounts payable
under this Fixed Rate Note or for any performance to be rendered under the
Indenture or any other Transaction Document on for any liability thereunder;
provided, however, that in the event the Lessee shall assume all the obligations
of the Owner Trustee hereunder and under the Indenture pursuant to Section
3.9(b) of the Indenture, then all the payments to be made under this Fixed Rate
Note shall be made only from payments made by the Lessee under this Fixed Rate
Note in accordance with the Assumption Agreement referred to in said Section
3.9(b) and the Holder of this Fixed Rate Note agrees that in such event it will
look solely to the Lessee for such payment.
Principal, premium, if any, and interest shall be payable, in
the manner provided in the Indenture, on presentment of this Fixed Rate Note at
the Indenture Trustee's Office, or as otherwise provided in the Indenture.
-2-
The Holder hereof, by its acceptance of this Fixed Rate Note,
agrees that each payment received by it hereunder shall be applied in the manner
set forth in Section 3.11 of the Indenture. The Holder of this Fixed Rate Note
agrees, by its acceptance hereof, that it will duly note by appropriate means
all payments of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note unless and until all
such notations have been duly made.
This Fixed Rate Note i5 one of the Fixed Rate Notes referred to
in the Indenture. The Indenture permits the issuance of additional series of
Notes, as provided in section 3.5 of the Indenture, and the several series may
be for varying aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are pledged to the
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 Fixed Rate
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 Holders of, and the nature and extent of the security for, this
Fixed Rate 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 Trustee,
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 Fixed Rate Note.
This Fixed Rate Note is not subject to prepayment in whole or in
part.
In case an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Fixed Rate Note and any
other Notes, together with all accrued but unpaid interest thereon, may, subject
to certain rights of the Owner Trustee of 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.
-3-
The lien upon the Lease Indenture Estate is subject to being
legally discharged prior to the maturity of this Fixed Rate Note upon the
deposit with the Indenture Trustee of cash or certain securities sufficient to
pay this Fixed Rate Note when due or an assumption of the obligation of the
Owner Trustee under this Fixed Rate Note and the Indenture, in each case in
accordance with the terms of the Indenture.
There shall be maintained at the Indenture Trustee's Office a
register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Indenture. The transfer of this Fixed Rate Note is
registrable, as provided in the Indenture, upon surrender of this Fixed Rate
Note for registration of transfer duly accompanied by a written instrument of
transfer duly executed by or on behalf of the registered Holder hereof, together
with the amount of any applicable transfer taxes. Prior to due presentment for
registration of transfer of this Fixed Rate Note, the Owner Trustee and the
Indenture Trustee may treat the person in whose name this Fixed Rate Note is
registered as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate Note and for
all other purposes whatsoever, whether or not this Fixed Rate Note be overdue,
and neither the Owner Trustee nor the Indenture Trustee shall be affected by
notice to the contrary.
This Fixed Rate Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
-4-
IN WITNESS WHEREOF, the Owner Trustee has caused this Fixed Rate
Note to be duly executed as of the date hereof
THE FIRST NATIONAL BANK OF
BOSTON, not in its individual
capacity, but solely as Owner
Trustee under a Trust Agreement
dated as of July 31, 1986 with
Chase Manhattan Realty Leasing
Corporation
By
-----------------------------
Assistant Vice President
This Note is one or the series of Notes referred to therein and in the
within-mentioned Indenture
CHEMICAL BANK,
as Indenture Trustee
By
-----------------------------
Vice President
-5-
SCHEDULE 1
TO THE FIXED RATE NOTE
(DUE JANUARY 15, 1992)
Schedule of Principal Amortization
$1,501,000 Principal Amount
Payment Principal Principal
Date Amount Payable Amount Paid
---------------- -------------- -----------
July 15, 1990 $229,000
January 15, 1991 407,000
July 15, 1991 424,000
January 15, 1992 441,000
----------
Principal Amount $1,501,000
==========
Page 1 of 1
ASSIGNMENT
Date: November 25, 1986
For value received, FIRST PV FUNDING CORPORATION (First PV)
hereby sells, assigns and transfers to CHEMICAL BANK as Collateral Trust Trustee
pursuant to the Collateral Trust Indenture dated as of December 16, 1985, as
heretofore amended and supplemented, among First PV, Public Service Company of
New Mexico and said Collateral Trust Trustee, without recourse, the Fixed Rate
Note to which this Assignment is annexed and all rights thereunder.
FIRST PV FUNDING CORPORATION
By
-------------------------
President
EXHIBIT A-2
TO SUPPLEMENT
NO.1
FORM OF FIXED RATE NOTE
(DUE JANUARY 15, l997)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE PROMISSORY NOTE, FIXED RATE SERIES
(DUE JANUARY 15, 1997)
Issued at: New York, New York
Issue Date: November 25, 1986
THE FIRST NATIONAL BANK OF BOSTON, not in its individual
capacity, but solely as Owner Trustee (Owner Trustee) under a Trust Agreement
dated as of July 31, 1986 with Chase Manhattan Realty Leasing Corporation (the
Owner Participant), hereby promises to pay to FIRST PV FUNDING CORPORATION, or
registered assigns, the principal sum of $5,626,000 (Five Million Six Hundred
Twenty Six Thousand Dollars) on January 15, 1997 together with interest
(computed on the basis of a 360-day year of twelve 30-day months) on the
aggregate amount of such principal sun remaining unpaid from time to time from
the date of this Fixed Rate Note until due and payable, in arrears, at the rate
of 8.95% per annum. Payments of principal installments of this Fixed Rate Note
shall be made in the "principal amount payable" and on the "payment dates"
specified in Schedule 1 hereto. Payments of accrued interest on this Fixed Rate
Note shall be made on January 15 and July 15 in each year commencing January 15,
1987 to and including the last "payment data" specified in Schedule 1 hereto.
Capitalized terms used in this Fixed Rate Note which are not
otherwise defined herein shall have the meanings ascribed thereto in the
Indenture (as hereinafter defined).
Interest on any overdue principal and premium, if any, and (to
the extent permitted by applicable law) any overdue interest, shall be paid, on
demand, from the due date thereof at the rate per annum equal to 9.95% (computed
on the basis of a 360-day year of twelve 30- day months) for the period during
which any such principal, premium or interest shall be overdue.
In the event any date on which a payment is due under this Fixed
Rate Note is not a Business Day, then payment thereof may 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.
All payments of principal, premium, if any, and interest to be
made by the Owner Trustee hereunder and under the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of July 31, 1986, as at any
time heretofore or hereafter amended or supplemented in accordance with the
provisions thereof (the Indenture), between the Owner Trustee and Chemical Bank,
as Trustee (the Indenture Trustee), shall be made only from the Lease Indenture
Estate and the Trust Estate and the Indenture Trustee shall have no obligation
for the payment thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Lease Indenture Estate to make such
payments in accordance with the terms of Article V of the Indenture, The Holder
hereof, by its acceptance of this Fixed Rate Note, agrees that such Holder will
look solely to the Trust Estate and the income and proceeds from the Lease
Indenture Estate to the extent available for distribution to the Holder hereof
as above provided, and that neither the Owner Participant nor, except as
expressly provided in the Indenture, the Owner Trustee nor the Indenture Trustee
is or shall be personally liable to the Holder hereof for any amounts payable
under this Fixed Rate Note or for any performance to be rendered under the
Indenture or any other Transaction Document or for any liability thereunder:
provided, however, that in the event the Lessee shall assume all the obligations
of the Owner Trustee hereunder and under the Indenture pursuant to Section
3.9(b) of the Indenture, then all the payments to be made under this Fixed Rate
Note shall be made only from payments made by the Lessee under this Fixed Rate
Note in accordance with the Assumption Agreement referred to in said Section
3.9(b) and the Holder of this Fixed Rate Note agrees that in such event it will
look solely to the Lessee for such payment.
Principal, premium, if any, and interest shall be payable, in
the manner provided in the Indenture, on presentment of this Fixed Rate Note at
the Indenture Trustee's office, or as otherwise provided in the Indenture.
-2-
The Holder hereof, by its acceptance of this Fixed Rate Note,
agrees that each payment received by it hereunder shall be applied in the manner
set forth in Section 3.11 of the Indenture. The Holder of this Fixed Rate Note
agrees, by its acceptance hereof, that it will duly note by appropriate means
all payments of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note unless and until all
such notations have been duly made.
This Fixed Rate Note is one of the Fixed Rate Notes referred to
in the Indenture. The Indenture permits the issuance of additional series of
Notes, as provided in Section 3.5 of the Indenture, and the several series may
be for varying aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms. The properties of
the owner Trustee included in the Lease Indenture Estate are pledged to the
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 Fixed Rate
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 Holders of, and the nature and extent of the security for, this
Fixed Rate 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 Trustee,
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 Fixed Rate Note.
-3-
This Fixed Rate Note may be prepaid in whole or in part at any
time on or after January 15, 1992 by the Owner Trustee upon the giving of not
less than 30 days' notice (as provided in the Indenture) and at the following
prepayment prices (expressed as a percentage of the unpaid principal amount
hereof), together with interest accrued to the date fixed for prepayment:
Twelve Month Redemption
Period Beginning Price
---------------- ----------
January 15, 199 102.557%
January 15, 199 101.279
and thereafter at the principal amount thereof, together with interest accrued
to the date fixed for prepayment. This Fixed Rate Note is not otherwise subject
to prepayment in whole or in part.
In case an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Fixed Rate Note and any
other Notes, together with all accrued but unpaid interest thereon, may1 subject
to certain rights of the Owner Trustee or 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.
The lien upon the Lease Indenture Estate is subject to being
legally discharged prior to the maturity of this Fixed Rate Note upon the
deposit with the Indenture Trustee of cash or certain securities sufficient to
pay this Fixed Rate Note when due or an assumption of the obligation of the
Owner Trustee under this Fixed Rate Note and the Indenture, in each case in
accordance with the terms of the Indenture.
There shall be maintained at the Indenture Trustee's Office a
register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Indenture. The transfer of this Fixed Rate Note is
registrable, as provided in the Indenture, upon surrender of this Fixed Rate
Note for registration of transfer duly accompanied by a written instrument of
transfer duly executed by or on behalf of the registered Holder hereof, together
with the amount of any applicable transfer taxes. Prior to due presentment for
-4-
registration of transfer of this Fixed Rate Note, the Owner Trustee and the
Indenture Trustee may treat the person in whose name this Fixed Rate Note is
registered as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate Note and for
all other purposes whatsoever, whether or not this Fixed Rate Note be overdue,
and neither the Owner Trustee nor the Indenture Trustee shall be affected by
notice to the contrary.
This Fixed Rate Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
-5-
IN WITNESS WHEREOF, the Owner Trustee has caused this Fixed Rate
Note to be duly executed as of the date hereof
THE FIRST NATIONAL RANK OF
BOSTON, not in its individual
capacity, but solely as Owner
Trustee under a Trust Agreement
dated as of July 31, 1986 with
Chase Manhattan Realty Leasing
Corporation
By
-----------------------------
Assistant Vice President
This Note is one of the series of Notes referred to therein and
in the within-mentioned Indenture.
CHEMICAL BANK,
as Indenture Trustee
By
-----------------------------
Vice President
-6-
SCHEDULE 1
TO THE FIXED RATE NOTE
(DUE JANUARY 15, 1997)
Schedule of Principal Amortization
$5,626,000 Principal Amount
Payment Principal Principal
Date Amount Payable Amount Paid
------- -------------- -----------
July 15, 1992 $ 458,000 $
January 15, 1993 479,000
July 15, 1993 500,000
January 15, 1994 523,000
July 15, 1994 546,000
January 15, 1995 570,000
July 15, 1995 596,000
January 15, 1996 623,000
July 15, 1996 651,000
January 15, 1997 680,000
----------
Principal Amount $5,626,000
==========
Page 1 of 1
ASSIGNMENT
Date: November 25, 1986
For value received, FIRST PV FUNDING CORPORATION (First PV)
hereby sells, assigns and transfers to CHEMICAL BANK, as Collateral Trust
Trustee pursuant to the Collateral Trust Indenture dated as of December 16,
1985, as heretofore amended and supplemented, among First PV, Public service
Company of New Mexico and said Collateral Trust Trustee, without recourse, the
Fixed Rate Note to which this Assignment is annexed and all rights thereunder.
FIRST PV FUNDING CORPORATION
By
------------------------
President
EXHIBIT A-3
TO SUPPLEMENT
NO. 1
FORM OF FIXED RATE NOTE
(DUE JANUARY 15, 2015)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD OR OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE PROMISSORY NOTE, FIXED RATE SERIES
(DUE JANUARY 15, 2015)
Issued at: New York, New York
Issue Date: November 25, 1986
THE FIRST NATIONAL RANK OF BOSTON, not in its individual
capacity, but solely as Owner Trustee (Owner Trustee) under a Trust Agreement
dated as of July 31, 1986 with Chase Manhattan Realty Leasing Corporation (the
Owner Participant), hereby promises to pay to FIRST PV FUNDING CORPORATION, or
registered assigns, the principal sum of $32,873,000 (Thirty Two Million Eight
Hundred Seventy Three Thousand Dollars) on January 15, 2015 together with
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the aggregate amount of such principal sum remaining unpaid from time to time
from the date of this Fixed Rate Note until due and payable, in arrears, at the
rate of 10.15% per annum. Payments of principal installments of this Fixed Rate
Note shall be made in the "principal amount payable" and on the "payment dates"
specified in Schedule 1 hereto, as such Schedule may be revised from time to
time in accordance with the Indenture, Supplemental Indenture No. 1 thereto and
the terms contained herein. Payments of accrued interest on this Fixed Rate Note
shall be made on January 15 and July 15 in each year, commencing January 15,
1987 to and including the last "payment date" specified in Schedule 1 hereto.
Capitalized terms used in this Fixed Rate Note which are not
otherwise defined herein shall have the meanings ascribed thereto in the
Indenture (as hereinafter defined).
Interest on any overdue principal and premium, if any, and (to
the extent permitted by applicable law) any overdue interest, shall be paid, on
demand, from the due date thereof at the rate per annum equal to 11.15%
(computed on the basis of a 360-day year of twelve 30-day months) for the period
during which any such principal, premium or interest shall be overdue.
In the event any date on which a payment is due under this Fixed
Rate Note is not a Business Day, then payment thereof may 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.
All payments of principal, premium, if any, and interest to be
made by the Owner Trustee hereunder and under the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of July 31, 1986, as at any
time heretofore or hereafter amended or supplemented in accordance with the
provisions thereof (the Indenture), between the Owner Trustee and Chemical Bank,
as Trustee (the Indenture Trustee), shall be made only from the Lease Indenture
Estate and the Trust Estate and the Indenture Trustee shall have no obligation
for the payment thereof except to the extent that the Indenture Trustee shall
have sufficient income or proceeds from the Lease Indenture Estate to make such
payments in accordance with the terms of Article V of the Indenture. The Holder
hereof, by its acceptance of this Fixed Rate Note, agrees that such Holder will
look solely to the Trust Estate and the income and proceeds from the Lease
Indenture Estate to the extent available for distribution to the Holder hereof
as above provided, and that neither the Owner Participant nor, except as
expressly provided in the Indenture, the Owner Trustee nor the Indenture Trustee
is or shall be personally liable to the Holder hereof for any amounts payable
under this Fixed Rate Note or for any performance to be rendered under the
Indenture or any other Transaction Document or for any liability thereunder;
provided, however, that in the event the Lessee shall assume all the obligations
of the Owner Trustee hereunder and under the Indenture pursuant to Section
3.9(b) of the Indenture then all the payments to be made under this Fixed Rate
Note shall be made only from payments made by the Lessee under this Fixed Rate
Note in accordance with the Assumption Agreement referred to in said Section
3.9(b) and the Holder of this Fixed Rate Note agrees that in such event it will
look solely to the Lessee for such payment.
-2-
Principal, premium, if any, and interest shall be payable, in
the manner provided in the Indenture1 on presentment of this Fixed Rate Note at
the Indenture Trustee's office, or as otherwise provided in the Indenture.
In the manner and to the extent provided in the Indenture,
Schedule 1 hereto may be adjusted once at the discretion of the Owner Trustee
prior to July 15, 1997, in connection with an adjustment to Basic Rent under
Section 3 (d) of the Facility Lease.
The Holder hereof, by its acceptance of this Fixed Rate Note,
agrees that each payment received by it hereunder shall be applied in the manner
set forth in Section 3.11 of the Indenture. The Holder of this Fixed Rate Note
agrees, by its acceptance hereof, that it will duly note by appropriate means
all payments of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note unless and until all
such notations have been duly made.
This Fixed Rate Note is one of the Fixed Rate Notes referred to
in the Indenture. The Indenture permits the issuance of additional series of
Notes, as provided in Section 3.5 of the Indenture, and the several series nay
be for varying aggregate principal amounts and may have different maturity
dates, interest rates, redemption provisions and other terms. The properties of
the owner Trustee included in the Lease Indenture Estate are pledged to the
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 Fixed Rate
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 Holders of, and the nature and extent of the security for, this
Fixed Rate Note and of the rights of, and the nature and extent of the security
for, the Molders of the other Notes and of certain rights of the Owner Trustee,
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 Fixed Rate Note.
-3-
This Fixed Rate Note is subject to prepayment in whole as
contemplated by Section 5.2 of the Indenture and in the circumstances therein
described. In addition, this Fixed Rate Note may be prepaid in whole or in part
at any time on or after January is, 1992 by the Owner Trustee upon the giving of
not less than 30 days' notice (as provided in the Indenture) and at the
following prepayment prices (expressed as a percentage of the unpaid principal
amount hereof), together with interest accrued to the date fixed for prepayment:
Twelve Month Redemption
Period Beginning Price
---------------- -----
January 15, 1992 108.120%
January 15, 1993 107.714
January 15, 1994 107.308
January 15, 1995 106.902
January 15, 1996 106.496
January 15, 1997 106.090
January 15, 1998 105.684
January 15, 1999 105.272
January 15, 2000 104.872
January 15, 2001 104.466
January 15, 2002 104.060
January 15, 2003 103.654
January 15, 2004. 103.248
January 15, 2005 102.842
January 15, 2006 102.436
January 15, 2007 102.030
January 15, 2008 101.624
January 15, 2009 101.218
January 15, 2010 100.812
January 15, 2011 100.406
and thereafter at the principal amount thereof, together with interest accrued
to the date fixed for prepayment. This Fixed Rate Note is not otherwise subject
to prepayment in whole or in part.
In case an Indenture Event of Default shall occur and be
continuing, the unpaid balance of the principal of this Fixed Rate Note and any
other Notes, together with all accrued but unpaid interest thereon, may, subject
to certain rights of the owner Trustee or 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.
-4-
The lien upon the Lease Indenture Estate is subject to being
legally discharged prior to the maturity of this Fixed Rate Note upon the
deposit with the Indenture Trustee of cash or certain securities sufficient to
pay this Fixed Rate Note when due or an assumption of the obligation of the
Owner Trustee under this Fixed Rate Note and the Indenture, in each case in
accordance with the terms of the Indenture.
There shall be maintained at the Indenture Trustee's Office a
register for the purpose of registering transfers and exchanges of Notes in the
manner provided in the Indenture. The transfer of this Fixed Rate Note is
registrable, as provided in the Indenture, upon surrender of this Fixed Rate
Note for registration of transfer duly accompanied by a written instrument of
transfer duly executed by or on behalf of the registered Holder hereof, together
with the amount of any applicable transfer taxes. Prior to due presentment for
registration of transfer of this Fixed Rate Note, the Owner Trustee and the
Indenture Trustee may treat the person in whose name this Fixed Rate Note is
registered as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate Note and for
all other purposes whatsoever, whether or not this Fixed Rate Note be overdue,
and neither the Owner Trustee nor the Indenture Trustee shall be affected by
notice to the contrary.
This Fixed Rate Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
-5-
IN WITNESS WHEREOF, the owner Trustee has caused this Fixed
Rate Note to be duly executed as of the date hereof.
THE FIRST NATIONAL BANK OF
BOSTON, not in its individual
capacity, but solely as Owner
Trustee under a Trust Agreement
dated as of July 31, 1986 with
chase Manhattan Realty Leasing
Corporation
By
-----------------------------
Assistant Vice President
This Note is one of the series of Notes referred to therein and
in the within-mentioned Indenture.
CHEMICAL BANK,
as Indenture Trustee
By
----------------------------
Vice President
-6-
SCHEDULE 1
TO THE FIXED RATE NOTE
(DUE JANUARY 15, 2015)
Schedule of Principal Amortization
$32,873,000 Principal Amount
Payment Principal Principal
Date Amount Payable Amount Paid
------- -------------- -----------
July 15, 1997 $ 710,000 $
January 15, 1998 746,000
July 15, 1998 784,000
January 15, 1999 824,000
July 15, 1999 866,000
January 15, 2000 604,000
July 15, 2000 675,000
January 15, 2001 639,000
July 15, 2001 718,000
January 15, 2002 660,000
July 15, 2002 727,000
January 15, 2003 656,000
July 15, 2003 736,000
January 15, 2004 669,000
July 15, 2004 781,000
January 15, 2005 711,000
July 15, 2005 829,000
January 15, 2006 754,000
July 15, 2006 880,000
January 15, 2007 800,000
July 15, 2007 934,000
January 15,2008 850,000
July 15, 2008 992,000
January 15, 2009 902,000
July 15, 2009 1,053,000
January 15, 2010 957,000
July 15, 2010 1,118,000
SCHEDULE 1
TO THE FIXED RATE NOTE
(DUE JANUARY 15, 2015)
Schedule of Principal Amortization
(Continued)
Payment Principal Principal
Date Amount Payable Amount Paid
------- -------------- -----------
January 15, 1998 1,016,000
July 15, 1998 1,187,000
January 15, 1999 1,078,000
July 15, 1999 1,260,000
January 15, 2000 1,145,000
July 15, 2000 1,337,000
January 15, 2001 1,214,000
July 15, 2001 1,419,000
January 15, 2002 1,642,000
-----------
Principal Amount $32,873,000
===========
-2-
ASSIGNMENT
Date: November 25, 1986
For value received, FIRST PV FUNDING CORPORATION (First PV)
hereby sells, assigns and transfers to CHEMICAL BANK, as Collateral Trust
Trustee pursuant to the Collateral Trust Indenture dated as of December 16,
1985, as heretofore amended and supplemented, among First PV, Public Service
Company of New Mexico and said Collateral Trust Trustee, without recourse, the
Fixed Rate Note to which this Assignment is annexed and all rights thereunder.
FIRST PV FUNDING CORPORATION
By
------------------------
President