Exhibit 4.22.2
===============================================================================
PASS THROUGH TRUST AGREEMENT B
Dated as of October 18, 2001
between
SOUTH POINT ENERGY CENTER, LLC,
BROAD RIVER ENERGY LLC,
ROCKGEN ENERGY LLC,
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Pass Through Trustee
South Point, Broad River and RockGen Series B Pass Through Trust
9.825% Pass Through Certificates, Series B
===============================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS.......... .......................................................................... 2
Section 1.1 Definitions............................................................................... 2
Section 1.2 Compliance Certificates and Opinions...................................................... 9
Section 1.3 Form of Documents Delivered to Pass Through Trustee....................................... 10
Section 1.4 Acts of Holders........................................................................... 11
Section 1.5 Conflict with Trust Indenture Act......................................................... 12
SECTION 2. ACQUISITION OF LESSOR NOTES; ORIGINAL ISSUANCE OF CERTIFICATES.................................. 12
Section 2.1 Issuance of Certificates; Acquisition of Lessor Notes..................................... 12
Section 2.2 Acceptance by Pass Through Trustee........................................................ 14
Section 2.3 Limitation of Powers...................................................................... 14
SECTION 3. THE CERTIFICATES................................................................................ 15
Section 3.1 Form, Denomination and Execution of Certificates.......................................... 15
Section 3.2 Authentication of Certificates............................................................ 15
Section 3.3 Temporary Certificates.................................................................... 16
Section 3.4 Registration of Transfer and Exchange of Certificates..................................... 16
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates......................................... 18
Section 3.6 Persons Deemed Owners..................................................................... 18
Section 3.7 Cancellation.............................................................................. 18
Section 3.8 Limitation of Liability for Payments...................................................... 19
Section 3.9 Book-Entry and Definitive Certificates.................................................... 19
Section 3.10 Form of Certification.................................................................... 22
SECTION 4. DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS................................................. 22
Section 4.1 Certificate Account and Special Payments Account.......................................... 22
Section 4.2 Distributions from Certificate Account and Special Payments Account....................... 23
Section 4.3 Statements to Certificateholders.......................................................... 25
Section 4.4 Investment of Special Payment Moneys...................................................... 25
SECTION 5. FINANCIAL STATEMENTS AND OTHER REPORTS.......................................................... 26
SECTION 6. DEFAULT......................................................................................... 26
i
Section 6.1 Events of Default......................................................................... 26
Section 6.2 Incidents of Sale of Lessor Notes......................................................... 27
Section 6.3 Judicial Proceedings Instituted by Pass Through Trustee................................... 28
Section 6.4 Control by Certificateholders............................................................. 29
Section 6.5 Waiver of Defaults........................................................................ 29
Section 6.6 Undertaking to Pay Court Costs............................................................ 30
Section 6.7 Right of Certificateholders to Receive Payments Not to Be Impaired........................ 30
Section 6.8 Certificateholders May Not Bring Suit Except Under Certain Conditions..................... 31
Section 6.9 Remedies Cumulative....................................................................... 31
SECTION 7. THE PASS THROUGH TRUSTEE........................................................................ 31
Section 7.1 Certain Duties and Responsibilities....................................................... 31
Section 7.2 Notice of Defaults........................................................................ 32
Section 7.3 Certain Rights of Pass Through Trustee.................................................... 33
Section 7.4 Not Responsible for Recitals; Issuance of Certificates.................................... 34
Section 7.5 May Hold Certificates..................................................................... 34
Section 7.6 Money Held in Pass Through Trust.......................................................... 34
Section 7.7 Compensation, Reimbursement and Indemnification........................................... 34
Section 7.8 Corporate Trustee Required; Eligibility................................................... 35
Section 7.9 Resignation and Removal: Appointment of Successor......................................... 35
Section 7.10 Acceptance of Appointment by Successor.................................................... 37
Section 7.11 Merger, Conversion, Consolidation or Succession to Business............................... 37
Section 7.12 Maintenance of Agencies................................................................... 38
Section 7.13 Money for Certificate Payments to Be Held in Trust........................................ 39
Section 7.14 Registration of Lessor Notes in Pass Through Trustee's Name............................... 40
Section 7.15 Withholding Taxes; Information Reporting.................................................. 40
Section 7.16 Pass Through Trustee's Liens.............................................................. 40
SECTION 8. CERTIFICATEHOLDERS' LISTS AND REPORTS........................................................... 40
Section 8.1 The Facility Lessees to Furnish Pass Through Trustee with
Names and Addresses of Certificateholder.................................................. 40
Section 8.2 Preservation of Information............................................................... 41
Section 8.3 Reports by the Facility Lessees........................................................... 41
ii
Section 8.4 Reports by the Pass Through Trustee....................................................... 41
SECTION 9. SUPPLEMENTAL TRUST AGREEMENTS................................................................... 41
Section 9.1 Supplemental Trust Agreement Without Consent of Certificateholders........................ 41
Section 9.2 Supplemental Trust Agreements with Consent of Certificateholders.......................... 42
Section 9.3 Documents Affecting Immunity or Indemnity................................................. 43
Section 9.4 Execution of Supplemental Trust Agreements................................................ 44
Section 9.5 Effect of Supplemental Trust Agreements................................................... 44
Section 9.6 Reference in Certificates to Supplemental Trust Agreements................................ 44
Section 9.7 Conformity with Trust Indenture Act....................................................... 44
SECTION 10. AMENDMENTS AND CONSENTS TO COLLATERAL TRUST INDENTURE AND OTHER OPERATIVE DOCUMENTS............ 44
SECTION 11. TERMINATION OF PASS THROUGH TRUST.............................................................. 45
Section 11.1 Termination of the Pass Through Trust.................................................... 45
SECTION 12. MISCELLANEOUS PROVISIONS....................................................................... 46
Section 12.1 Limitation on Rights of Certificateholders............................................... 46
Section 12.2 Certificates Nonassessable and Fully Paid................................................ 46
Section 12.3 Notices.................................................................................. 46
Section 12.4 Successors and Assigns................................................................... 48
Section 12.5 Business Day............................................................................. 48
Section 12.6 GOVERNING LAW............................................................................ 48
Section 12.7 Severability............................................................................. 48
Section 12.8 Benefits of Pass Through Trust Agreement................................................. 48
Section 12.9 Counterparts............................................................................. 48
Section 12.10 Headings and Table of Contents........................................................... 48
Section 12.11 Further Assurances....................................................................... 49
Section 12.12 Statement of Intent...................................................................... 49
Section 12.13 RockGen.................................................................................. 49
iii
PASS THROUGH TRUST AGREEMENT B
This PASS THROUGH TRUST AGREEMENT B, dated as of October 18, 2001
(this "Pass Through Trust Agreement"), with respect to the formation of the
South Point, Broad River and RockGen Series B Pass Through Trust (the "Pass
Through Trust"), between SOUTH POINT ENERGY CENTER, LLC, a Delaware limited
liability company ("South Point"), BROAD RIVER ENERGY LLC, a Delaware limited
liability company ("Broad River"), ROCKGEN ENERGY LLC (subject to Section
12.13), a Wisconsin limited liability company ("RockGen," and together with
South Point and Broad River, the "Facility Lessees" and individually each a
"Facility Lessee"), and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, as Pass Through Trustee
(the "Pass Through Trustee").
W I T N E S S E T H :
WHEREAS, the Facilities Lessees, the Pass Through Trustee, and
certain other parties named therein have entered into the Participation
Agreements referred to on Schedule 1 hereto, pursuant to which the Facilities
Lessees and, in the case of the South Point Facility, CCFC (as defined below)
have agreed to sell, assign or otherwise transfer to the Owner Lessors certain
Undivided Interests in the South Point facility, the Broad River facility and
the RockGen facility (each, a "Facility" and together, the "Facilities"), and
the Facility Lessees have agreed to lease or sublease from the Owner Lessors
such Undivided Interests in the Facilities;
WHEREAS, the Facilities Lessees, the Pass Through Trustee, and
certain other parties named therein have entered into the Participation
Agreements referred to on Schedule 1 hereto, pursuant to which the Facilities
Lessees and, in the case of the South Point Facility, CCFC (as defined below)
have agreed to lease, assign or otherwise transfer to the Owner Lessors certain
Ground Interests in the South Point Site, the Broad River Site and the RockGen
Site (together, the "Facility Sites"), and the Facility Lessees have agreed to
lease or sublease from the Owner Lessors such Ground Interests;
WHEREAS, CCFC, South Point, Broad River and RockGen will consummate
the sale or assignment to and lease or sublease from the Owner Lessors of the
Undivided Interests in Facilities and the Ground Interests in the Facility
Sites on the Closing Date;
WHEREAS, on the Closing Date, each Owner Lessor will enter into a
Collateral Trust Indenture and issue, on a non-recourse basis, Lessor Notes
thereunder to finance a portion of the purchase price for the related Undivided
Interests purchased or assumed by such Owner Lessor;
WHEREAS, subject to the terms and conditions of this Pass Through
Trust Agreement, the Pass Through Trust will purchase Lessor Notes issued in
connection with the purchase or assumption of the Undivided Interests in the
Facilities from South Point and Broad River on the Closing Date and will hold
all such Lessor Notes in trust for the benefit of the Certificateholders;
WHEREAS, the Pass Through Trustee, upon the execution and delivery of
this Pass Through Trust Agreement, hereby declares the creation of this Pass
Through Trust for the benefit of the Certificateholders, and the initial
Certificateholders as the grantors of the Pass Through Trust and by their
respective acceptances of the Certificates join in the creation of this Pass
Through Trust with the Pass Through Trustee; and
WHEREAS, to facilitate the sale of Lessor Notes to the Pass Through
Trust and the purchase of Lessor Notes by the Pass Through Trust, the Facility
Lessees are, on a joint and several basis, undertaking to perform certain
administrative and ministerial duties hereunder and are also undertaking to pay
the fees and expenses of the Pass Through Trustee.
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual agreements herein contained, and of the other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
Section 1.1 Definitions.
(a) Unless the context hereof otherwise requires, capitalized terms
used in this Pass Through Trust Agreement, including those in the recitals, and
not otherwise defined herein shall have the respective meanings set forth in
Appendix A to the applicable Participation Agreement. The general provisions of
Appendix A to such Participation Agreement shall apply to the terms used in
this Pass Through Trust Agreement and specifically defined herein.
(b) As used in this Pass Through Trust Agreement, the following
terms shall have the respective meanings assigned thereto as follows:
"Act", when used with respect to any Holder, shall have the
meaning specified in Section 1.4.
"Authorized Agent" shall mean any Paying Agent or Registrar.
"Avoidable Tax" shall have the meaning specified in Section
7.9(e).
"Book-Entry Certificate" shall mean a beneficial interest in the
Certificates, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 3.9.
"CCFC" shall mean Calpine Construction Finance Company, L.P.
"Certificate" shall mean any one of the certificates executed and
authenticated by the Pass Through Trustee, substantially in the form
of Exhibit A hereto.
"Certificate Account" shall mean that account or accounts created
and maintained pursuant to Section 4.1(a).
2
"Certificate Owner" shall mean, when used in Section 3.9, the
Person for whom a Clearing Agency Participant acts.
"Certificate Owner Request" shall mean a request to the Pass
Through Trustee to receive the reports and other information the
Facility Lessees or any other Person is required to furnish to the
Pass Through Trustee pursuant to the Operative Documents, which
request certifies that the Person making the request is a
Certificateholder or Certificate Owner. Any Certificateholder or
Certificate Owner making a Certificate Owner Request may specify its
election to receive such information from the Pass Through Trustee on
an ongoing basis.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Register, except that, when
used in Section 3.9, such term means the Certificate Owners.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects, directly or indirectly, book-entry
transfers and pledges of securities deposited with the Clearing
Agency.
"Clearstream" shall have the meaning specified in Section 3.9.
"Collateral Trust Indenture" shall mean (i) an Indenture of
Trust, Mortgage and Security Agreement between an Owner Lessor and
the Indenture Trustee, entered into pursuant to the Participation
Agreement, as the same may be amended or supplemented in accordance
with its terms and (ii) any Indenture of Trust, Mortgage and Security
Agreement, or analogous document, between a Facility Lessee and an
Indenture Trustee, entered into in connection with the assumption by
such Facility Lessee of the indebtedness evidenced by any Lessor
Note, as the same may be amended or supplemented in accordance with
its terms.
"Consideration" shall have the meaning specified in Section 2.1.
"Corporate Trust Office" shall mean, with respect to the Pass
Through Trustee, any Lessor Manager or any Indenture Trustee, the
office of such trustee or manager, as the case may be, in the city in
which at any particular time its corporate trust business shall be
principally administered.
"Cut-Off Date" shall mean December 1, 2001.
"Default" shall mean any event which is or, after notice or lapse
of time or both would become, an Event of Default.
"Definitive Certificates" shall have the meaning specified in
Section 3.9.
3
"Direction" shall have the meaning specified in Section 1.4(c).
"Distribution Date" shall mean, with respect to distributions of
Scheduled Payments, each May 30 and November 30 until payment of all
the Scheduled Payments to be made under the Lessor Notes have been
made, commencing on May 30, 2002.
"DTC" shall mean The Depository Trust Company and any successor
that is a Clearing Agency.
"Escrow Account" shall have the meaning specified in Section
2.1(b).
"Escrowed Funds" shall have the meaning specified in Section
2.1(b).
"Euroclear" shall have the meaning specified in Section
3.9.
"Event of Default" shall have the meaning specified in Section
6.1(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Facility Lessee" or "Facility Lessees" shall have the meaning
specified in the preamble hereto.
"Fractional Undivided Interest" shall mean the fractional
undivided interest in the Pass Through Trust that is evidenced by a
Certificate.
"Holder" shall have the meaning set forth in the definition of
"Certificateholder".
"Indenture Trustee" shall mean a bank or trust company acting as
indenture trustee under an applicable Collateral Trust Indenture, and
any successor to such Indenture Trustee as such trustee. The term
"Indenture Trustee" refers to any one or all of such Indenture
Trustees, as the context requires.
"Institutional Accredited Investor" shall mean an institutional
"accredited investor", as such term is defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
"Issuance Date" shall mean October 18, 2001.
"Lease" shall mean a facility lease or sublease agreement between
an Owner Lessor, as the lessor or sublessor (as applicable), and a
Facility Lessee, as the lessee or sublessee (as applicable), entered
into pursuant to the Participation Agreement, as such facility lease
agreement may be amended or supplemented in accordance with its
terms. The term "Lease" refers to any one or all of such facility
lease or sublease agreements, as the context requires.
4
"Lease Event of Default" shall mean any Lease Event of Default
(as such term is defined in a Lease).
"Lease Indenture Default" shall mean any event which is, or after
notice or lapse of time or both would become, a Lease Indenture Event
of Default.
"Lease Indenture Event of Default" shall mean any Lease Indenture
Event of Default (as such term is defined in the applicable
Collateral Trust Indenture).
"Lease Transaction" shall mean a lease transaction in respect of
an Undivided Interest between a Facility Lessee and an Owner Lessor
that is financed in part by the issuance of Lessor Notes to the Pass
Through Trust, as contemplated by the Participation Agreement and the
agreements and instruments referred to therein.
"Lessor Manager" shall mean ▇▇▇▇▇ Fargo Bank Northwest, National
Association, not in its individual capacity, but solely as Lessor
Manager under the LLC Agreement, and each other Person which may from
time to time be acting as Lessor Manager in accordance with the
provisions of the LLC Agreement.
"Lessor Note" shall mean any one of the Series B Lessor Notes (as
defined in the Collateral Trust Indenture) issued under a Collateral
Trust Indenture, including any Lessor Note (as so defined) issued
under the Collateral Trust Indenture in replacement or substitution
therefor, held by the Pass Through Trustee.
"Letter of Representations" shall mean the letter of
representations among the Facility Lessees, the Pass Through Trustee
and the initial Clearing Agency.
"Operative Documents" shall mean, as the context may require, the
South Point Operative Documents, the Broad River Operative Documents
and the RockGen Operative Documents.
"Other Certificates" shall mean the pass through trust
certificates issued pursuant to the Other Pass Through Trust
Agreement.
"Other Pass Through Trustee" shall mean the Pass Through Trustee
pursuant to the Other Pass Through Trust Agreement.
"Other Pass Through Trust Agreement" shall mean the Pass Through
Trust Agreement A, dated as of date hereof.
"Outstanding" shall mean, when used with respect to Certificates,
as of the date of determination, and subject to Section 1.4(c), all
Certificates theretofore authenticated and delivered under this Pass
Through Trust Agreement, except:
(i) Certificates theretofore canceled by the Registrar or
delivered to the Pass Through Trustee or the Registrar for
cancellation;
5
(ii) Certificates for which money in the full amount thereof
has been theretofore deposited with the Pass Through Trustee or any
Paying Agent in trust for the holders of such Certificates as
provided in Section 4.1 pending distribution of such money to the
Certificateholders pursuant to the final distribution payment to be
made pursuant to Section 11.1; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Pass Through Trust Agreement.
"Owner Lessor" shall mean one or more, as the context may
require, of the South Point Owner Lessors, the Broad River Owner
Lessors or the RockGen Owner Lessors.
"Owner Participant" shall mean one or more, as the context may
require, of the South Point Owner Participants, the Broad River Owner
Participants or the RockGen Owner Participants.
"Participation Agreement" shall mean one or more, as the context
may require, of the Participation Agreements enumerated on Schedule I
hereto among a Facility Lessee, an Owner Participant, an Owner
Lessor, a Lessor Manager, an Indenture Trustee and the Pass Through
Trustee, providing for the Lease Transaction.
"Pass Through Trust" shall mean the trust created by this Pass
Through Trust Agreement, the estate of which consists of the Trust
Property.
"Pass Through Trustee" shall mean the Pass Through Trustee
referred to in the preamble hereto and the Other Pass Through
Trustee, and each other Person that may be acting as a pass through
trustee in accordance with the provisions provided herein or in the
Other Pass Through Trust Agreement.
"Paying Agent" shall mean the paying agent maintained and
appointed pursuant to Section 7.12.
"Permanent Regulation S Global Certificate" shall have the
meaning specified in Section 3.9.
"Permitted Government Investment" shall mean the direct
obligations of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged,
maturing in not more than 60 days or such lesser time as is necessary
for payment of any Special Payments on a Special Distribution Date.
"Postponement Notice" shall mean an Officer's Certificate of the
Facility Lessees (1) requesting that the Pass Through Trustee
temporarily postpone the purchase of the Lessor Notes to a date later
than the Issuance Date, (2) identifying the amount of the purchase
price of each Lessor Note and the aggregate purchase
6
price of the Lessor Notes, (3) setting forth the reasons for such
postponement, and (4) either (a) setting a Transfer Date (which shall
be on or prior to the Cut-off Date) for payment by the Pass Through
Trustee of such purchase price and the issuance of the Lessor Notes,
or (b) indicating that the Transfer Date (which shall be on or prior
to the Cut-off Date) will be set by subsequent written notice not
less than one Business Day prior to such Transfer Date.
"Record Date" shall mean (i) for Scheduled Payments to be
distributed on any Distribution Date, other than the final
distribution, the day (whether or not a Business Day) which is
fifteen days preceding such Distribution Date, and (ii) for Special
Payments to be distributed on any Special Distribution Date, other
than the final distribution, the day (whether or not a Business Day)
which is fifteen days preceding such Special Distribution Date.
"Register" and "Registrar" shall mean the register maintained and
the registrar appointed pursuant to Sections 3.4 and 7.12.
"Regulation S Global Certificate" shall have the meaning
specified in Section 3.9.
"Request" shall mean a request by a Facility Lessee, an Owner
Lessor, or any Indenture Trustee setting forth the subject matter of
the request accompanied by an Officer's Certificate and an Opinion of
Counsel as provided in Section 1.2.
"Responsible Officer" shall mean, when used with respect to the
initial Pass Through Trustee, any initial Indenture Trustee or any
Lessor Manager, means any officer in the Corporate Trust Office
having direct responsibility for the administration of the Operative
Documents; when used with respect to any successor Pass Through
Trustee, or successor Indenture Trustee, means the chairman or
vice-chairman of the board of directors or trustees, the chairman or
vice-chairman of the executive or standing committee of the board of
directors or trustees, the president, the chairman of the committee
on trust matters, any vice-president, any second vice-president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the comptroller and any assistant
comptroller, and, when used with respect to the Pass Through Trustee
and any Indenture Trustee, also means any other officer of the Pass
Through Trustee or any Indenture Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, when used with respect to the Pass Through
Trustee, any Indenture Trustee or any Lessor Manager with respect to
a particular corporate trust matter, or any other officer to whom
such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Certificate" shall have the meaning specified in
Section 3.1.
7
"Restricted Global Certificate" shall have the meaning specified
in Section 3.9.
"Scheduled Payment" shall mean, with respect to a Distribution
Date, any payment (other than a Special Payment) of principal and
interest on a Lessor Note, due from the applicable Owner Lessor,
which payment represents the payment of a regularly scheduled
installment of principal then due on such Lessor Note, or the payment
of regularly scheduled interest accrued on such Lessor Note.
"SEC" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Special Distribution Date" shall mean (i) with respect to the
prepayment of any Lessor Notes, the day on which such prepayment is
scheduled to occur pursuant to the terms of the applicable Collateral
Trust Indenture and (ii) with respect to any Special Payment relating
to a Lessor Note other than as described in clause (i) of the
definition of Special Payment, the earliest second day of a month for
which it is practicable for the Pass Through Trustee to give notice
pursuant to Section 4.2(c).
"Special Payment" shall mean (i) any payment of principal,
premium, if any, and interest on a Lessor Note resulting from the
prepayment or redemption of such Lessor Note pursuant to the
applicable provisions of the applicable Collateral Trust Indenture,
(ii) any payment of principal and interest (including any interest
accruing upon default) on, or any other amount in respect of, such
Lessor Note upon a Lease Indenture Event of Default in respect
thereof or upon the exercise of remedies under the applicable
Collateral Trust Indenture, (iii) any Special Payment referred to in
clause (i) of this definition or any Scheduled Payment which is not
in fact paid within five days of the Special Distribution Date or
Distribution Date applicable thereto, or (iv) any proceeds from the
sale of any Lessor Note by the Pass Through Trustee pursuant to
Section 6 hereof.
"Special Payments Account" shall mean the account or accounts
created and maintained pursuant to Section 4.1(b).
"Specified Investments" shall mean with respect to the Pass
Through Trust (i) obligations of, or guaranteed by, the United States
Government or agencies thereof, (ii) open market commercial paper of
any corporation incorporated under the laws of the United States of
America or any State thereof rated at least P-2 or its equivalent by
Moody's or a least A-2 or its equivalent by S&P, (iii) certificates
of deposit issued by commercial banks organized under the laws of the
United States or of any political subdivision thereof having a
combined capital and surplus in excess of $100,000,000 which banks or
their holding companies have a rating of A or its equivalent by
Moody's or S& P; provided, that the aggregate amount at any one time
so invested in certificates of deposit issued by any one
8
bank shall not exceed 5% of such bank's capital and surplus, (iv)
U.S. dollar-denominated offshore certificates of deposit issued by,
or offshore time deposits with, any commercial bank described in
clause (iii) above or any subsidiary thereof and (v) repurchase
agreements with any financial institution having combined capital and
surplus of at least $100,000,000 with any of the obligations
described in clauses (i) through (iv) above as collateral; provided,
that if all of the above investments are unavailable, the entire
amounts to be invested may be used to purchase federal funds from an
entity described in clause (iii) above.
"Temporary Regulation S Global Certificate" shall have the
meaning specified in Section 3.9.
"Transfer Date" shall have the meaning assigned to the term
"Closing Date" in the Participation Agreement, and in any event
refers to such date as it may be changed from time to time in
accordance with the terms of the Participation Agreement.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended and as in force on the date on which this Pass Through
Trust Agreement was executed and delivered, except as provided in
Section 9.7; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" shall
mean, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" shall mean the Lessor Notes held as the property
of the Pass Through Trust created hereby and all monies at any time
paid thereon and all monies due and to become due thereunder, funds
from time to time deposited in the Escrow Account, the Certificate
Account and the Special Payments Account and any proceeds from the
sale by the Pass Through Trustee pursuant to Section 6 hereof of any
Lessor Note.
"Undivided Interest" shall mean, as the context may require, a
South Point Undivided Interest, a Broad River Undivided Interest or a
RockGen Undivided Interest.
Section 1.2 Compliance Certificates and Opinions.
(a) Upon any application or request by a Facility Lessee, an Owner
Lessor or any Indenture Trustee to the Pass Through Trustee to take any action
under any provision of this Pass Through Trust Agreement, such Facility Lessee,
such Owner Lessor or such Indenture Trustee, as the case may be, shall furnish
to the Pass Through Trustee an Officer's Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Pass Through Trust Agreement relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Pass
9
Through Trust Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Pass Through Trust Agreement shall
include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Pass Through Trustee.
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any Officer's Certificate may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless the signer of such Officer's Certificate knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon an Officer's Certificate stating that the information with respect to such
factual matters is in the possession of the signer of such Officer's
Certificate, unless such counsel knows that the certificate or opinions or
representations with respect to such matters are erroneous.
(c) Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
(d) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Pass Through Trust Agreement, they may, but need
not, be consolidated and form one instrument.
10
Section 1.4 Acts of Holders.
(a) Any direction, consent, waiver, demand, authorization, request,
approval or other action provided by this Pass Through Trust Agreement to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent or agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Pass Through Trustee and, where
it is hereby expressly required, to any Facility Lessee, any Owner Lessor or
any Indenture Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Pass Through Trust Agreement and (subject to Section
7.1) conclusive in favor of the Pass Through Trustee, the related Facility
Lessee, the related Owner Lessor and any related Indenture Trustee, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Pass
Through Trustee deems sufficient.
(c) In determining whether the Holders of the requisite Fractional
Undivided Interests of Certificates Outstanding have given any direction,
consent, waiver or other action (a "Direction"), under this Pass Through Trust
Agreement, Certificates owned by any Facility Lessee, any Owner Lessor, any
Owner Participant or any Affiliate of any such Person shall be disregarded and
deemed not to be Outstanding under this Pass Through Trust Agreement for
purposes of any such determination. In determining whether the Pass Through
Trustee shall be protected in relying upon any such Direction, only
Certificates which the Pass Through Trustee knows to be so owned shall be so
disregarded. Notwithstanding the foregoing, (i) if any such Person owns 100% of
the Certificates Outstanding, such Certificates shall not be so disregarded as
aforesaid, and (ii) if any amount of Certificates so owned by any such Person
have been pledged in good faith, such Certificates shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Pass Through
Trustee the pledgee's right so to act with respect to such Certificates and
that the pledgee is not one of the Facility Lessees, an Owner Lessor, an Owner
Participant or any Affiliate of any such Person.
(d) Any Act by the Holder of any Certificate shall bind the Holder
of every Certificate issued upon the transfer thereof or in exchange therefor
or in lieu thereof, whether or not notation of such Act is made upon such
Certificate.
(e) Except as otherwise provided in Section 1.4(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Pass Through Trust Agreement, without preference,
priority or distinction as among all of the Certificates.
(f) Notwithstanding anything herein to the contrary, the
Certificates will vote and consent together on all matters as one class and
will not have the right to vote or consent as a separate class on any matter.
11
(g) The Pass Through Trustee may fix in advance a record date for
the determination of the Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or other Act solicited by a
Facility Lessee, but the Pass Through Trustee shall not have any obligation to
do so.
Section 1.5 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required or deemed under such Act to be a part of and govern this Pass
Through Trust Agreement, such required or deemed provision shall, so long as
the Certificates shall be subject to the Trust Indenture Act, control. If any
provision of this Pass Through Trust Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
SECTION 2. ACQUISITION OF LESSOR NOTES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 Issuance of Certificates; Acquisition of Lessor Notes.
(a) Pass Through Trustee, at or promptly following the execution
and delivery of this Pass Through Trust Agreement, shall also execute and
deliver Participation Agreements, in the form delivered to the Pass Through
Trustee on or prior to the date of the execution and delivery hereof. Upon
delivery of an authentication order by each of the Facility Lessees and the
satisfaction of the closing conditions with respect to the Lessor Notes in
Section 4 of the Participation Agreement, the Pass Through Trustee shall
execute, deliver and authenticate, on behalf of the Pass Through Trust,
Certificates equaling in the aggregate the total principal amount of the Lessor
Notes deposited into the Pass Through Trust on the Issuance Date. The
Certificates so executed, delivered and authenticated on the Transfer Date
shall evidence the entire ownership of the Pass Through Trust. The Pass Through
Trust shall issue such Certificates on the Issuance Date, in authorized
denominations and in such Fractional Undivided Interests, so as to result in
the receipt of consideration (the "Consideration") in an amount equal to the
aggregate principal amount of such Lessor Notes referred to in the second
preceding sentence. The Pass Through Trust shall purchase Lessor Notes on the
Transfer Date at an aggregate purchase price equal to the amount of the
Consideration so received. Except as provided in Sections 3.4 and 3.5 hereof,
the Pass Through Trustee shall not execute or deliver Certificates in excess of
the aggregate amount specified in this paragraph. The aggregate Fractional
Undivided Interest of Certificates shall not at any time exceed $200,000,000
(b) If, on or prior to the Issuance Date, the Facility Lessees
shall deliver to the Pass Through Trustee a Postponement Notice relating to all
of the Lessor Notes related to any Facility, the Pass Through Trustee shall
postpone the purchase of all of the Lessor Notes related to such Facility and
shall deposit into an escrow account (the "Escrow Account") to be maintained as
part of the Pass Through Trust an amount equal to the purchase price of such
Lessor Notes (the "Escrowed Funds"). The Escrowed Funds so deposited shall be
invested by the Pass Through Trustee at the written direction and risk of, and
for the benefit of, the Facility Lessees in Specified Investments (i) maturing
no later than the scheduled Transfer Date or (ii) if no such Transfer Date has
been scheduled, maturing on the next Business Day, or (iii) if the Facility
Lessees have given notice to the Pass Through Trustee that the Lessor Notes
will not be
12
issued, maturing on the next Special Distribution Date but in no event later
than December 1, 2001, if such investments are reasonably available for
purchase. The Pass Through Trustee shall make a withdrawal from the Escrow
Account only as provided in this Pass Through Trust Agreement. Upon request of
the Facility Lessees on the satisfaction or waiver of the closing conditions
specified in the Participation Agreements on or prior to the Cut-off Date, the
Pass Through Trustee shall purchase all of the Lessor Notes related to any
Facility with the Escrowed Funds withdrawn from the Escrow Account. The
purchase price shall equal the principal amount of such Lessor Notes.
The Pass Through Trustee shall hold all Specified Investments until
the maturity thereof and will not sell or otherwise transfer Specified
Investments. If Specified Investments held in the Escrow Account mature prior
to the Transfer Date, any proceeds received on the maturity of such Specified
Investments shall be reinvested by the Pass Through Trustee at the written
direction and risk of, and for the benefit of, the Facility Lessees in
Specified Investments maturing as provided in the preceding paragraph.
Any earnings on Specified Investments received from time to time by
the Pass Through Trustee shall be promptly deposited and held in the Escrow
Account by the Pass Through Trustee. The Facility Lessees shall pay to the Pass
Through Trustee for deposit to the Escrow Account an amount equal to any losses
on such Specified Investments as incurred. On the initial regular Distribution
Date, the Facility Lessees will pay (in immediately available funds) to the
Pass Through Trustee an amount equal to the negative difference between the
amount of earnings received by the Pass Through Trustee on the Specified
Investments in the Escrow Account and the amount of interest that would have
accrued on the Lessor Notes, if any, purchased after the Issuance Date if the
Lessor Notes had been purchased on the Issuance Date to, from the Issuance Date
to, but not including, the date of the purchase of the Lessor Notes by the Pass
Through Trustee.
If the Facility Lessees notify the Pass Through Trustee prior to the
Cut-off Date that the Lessor Notes or any portion thereof will not be issued on
or prior to the Cut-off Date for any reason (it being understood that if any
Lessor Notes related to one Facility are issued, then all Lessor Notes related
to such Facility shall be issued), on the next Special Distribution Date
occurring not less than 20 days following the date of such notice, (i) the
Facility Lessees shall pay to the Pass Through Trustee for deposit in the
Special Payments Account, in immediately available funds, an amount equal to
the sum of (x) the negative difference between the amount of earnings received
by the Pass Through Trustee on Specified Investments in the Escrow Account and
the amount of interest that would have accrued on the Lessor Notes at a rate
equal to the interest rate applicable to the Certificates from the Issuance
Date to, but not including, such Special Distribution Date and (y) the
Make-Whole Amount and (ii) the Pass Through Trustee shall transfer an amount
equal to that amount of Escrowed Funds that would have been used to purchase
the Lessor Notes designated in such notice and the amount paid by the Facility
Lessees pursuant to the immediately preceding clause (i) to the Special
Payments Account for distribution as a Special Payment in accordance with the
provisions hereof. Any earnings received by the Pass Through Trustee on
Specified Investments in the Escrow Account in excess of the amounts payable
pursuant to the preceding sentence shall be refunded to the Facility Lessee
following the payment of all amounts due hereunder.
13
(c) The Facility Lessees' Assumption of Lessor Notes. If a Facility
Lessee shall assume the obligations of the applicable Owner Lessor under its
Lessor Note pursuant to the Collateral Trust Indenture, the Pass Through
Trustee shall, upon its receipt of written instructions from such Facility
Lessee, surrender the applicable Lessor Notes issued pursuant to the Collateral
Trust Indenture to the Indenture Trustee in exchange for new Lessor Notes of
the same aggregate outstanding principal amount as the Lessor Notes so
surrendered, bearing interest at the same rate, and having the same maturity
and amortization schedule, and otherwise of similar tenor, issued under the
Collateral Trust Indenture and any new Collateral Trust Indenture entered into
by such Facility Lessee and the Indenture Trustee in connection with such
assumption, and thereafter each reference to such Lessor Notes in this Pass
Through Trust Agreement shall be deemed to mean a reference to such new Lessor
Notes or the existing Lessor Notes as assumed by such Facility Lessee.
(d) Authentication. Any authentication order delivered by any of
the Facility Lessees hereunder shall be signed by one of such Facility Lessee's
authorized signatories and shall specify the amount and maturity of the
Certificates to be authenticated and the date on which the original issue of
Certificates is to be authenticated. The Pass Through Trustee may appoint an
authenticating agent to authenticate the Certificates. Unless limited by the
terms of such appointment, an authenticating agent may authenticate the
Certificates whenever the Pass Through Trustee may do so. Each reference in
this Pass Through Trust Agreement to authentication by the Pass Through Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
Section 2.2 Acceptance by Pass Through Trustee. The Pass Through Trustee, upon
the execution and delivery of this Pass Through Trust Agreement, acknowledges on
behalf of the Pass Through Trust its acceptance of all right, title, and
interest in and to the Lessor Notes acquired pursuant to Section 2.1 hereof and
declares that the Pass Through Trustee holds and will hold such right, title,
and interest, together with all other property constituting the Trust Property,
for the benefit of all present and future Certificateholders, upon the trusts
herein set forth. By its payment for and acceptance of each Certificate issued
to it hereunder, each initial Certificateholder as grantor of the Pass Through
Trust thereby joins in the creation and declaration of the Pass Through Trust.
The Pass Through Trustee shall be under no duty or obligation to inspect, review
or examine the Lessor Notes to determine that they are genuine, valid, binding,
enforceable or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
Section 2.3 Limitation of Powers. The Pass Through Trust is constituted solely
for the purpose of making the investment in the Lessor Notes, and, except as set
forth herein, the Pass Through Trustee is not authorized or empowered to acquire
any other investments or engage in any other activities and, in particular, the
Pass Through Trustee is not authorized or empowered to do anything that would
cause the Pass Through Trust to fail to qualify as a pass through entity for
federal income tax purposes (including, as subject to this restriction,
acquiring any Undivided Interest or any portion thereof by bidding the Lessor
Notes or otherwise, or taking any action with respect to any Undivided Interest
or any portion thereof once acquired).
14
SECTION 3. THE CERTIFICATES
Section 3.1 Form, Denomination and Execution of Certificates. The
Certificates shall be known as the "9.825% Pass Through Certificates, Series B"
of the Pass Through Trust and shall each represent a Fractional Undivided
Interest. The Certificates shall be issued in registered form without coupons
and shall be substantially in the form attached hereto as Exhibit A, with such
omissions, variations and insertions as are permitted by this Pass Through
Trust Agreement, and may have such letters, numbers or other marks of
identification and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with the rules of any securities
exchange on which such Certificates may be listed or to conform to any usage in
respect thereof, or as may, consistently herewith, be prescribed by the Pass
Through Trustee or by the officer executing such Certificates, such
determination by said officer to be evidenced by such officer signing the
Certificates. Except as provided in Section 3.9, definitive Certificates
shall be printed, lithographed or engraved or produced by any combination of
these methods, all as determined by the officer executing such Certificates, as
evidenced by such officer's execution of such Certificates.
(c) During the period beginning on the Issuance Date and ending on
the expiration of the applicable holding period in Rule 144(k) of the
Securities Act, all Certificates issued on the Issuance Date, and all
Certificates issued upon registration of transfer of, or in exchange for, such
Certificates, shall be "Restricted Certificates" and shall be subject to the
restrictions on transfer provided in the legend set forth on the face of the
form of certificate in Exhibit A; provided, however, that the term "Restricted
Certificates" shall not include Certificates as to which such restrictions on
transfer have been terminated in accordance with Section 3.4. All Restricted
Certificates shall bear the legend set forth on the face of the Certificate in
Exhibit A. Certificates which are not Restricted Certificates shall not bear
such legend.
(d) The Certificates shall be issued in minimum denominations of
$100,000 or integral multiples of $1,000 in excess thereof.
(e) The Certificates shall be executed on behalf of the Pass
Through Trust by manual or facsimile signature of a Responsible Officer of the
Pass Through Trustee. Certificates bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Pass Through Trustee shall be valid and binding
obligations of the Pass Through Trust, notwithstanding that such individual has
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such office at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Pass Through Trust
Agreement, or be valid for any purpose unless there appears on such Certificate
a certificate of authentication substantially in the form set forth in Exhibit
B hereto executed by the Pass Through Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 3.2 Authentication of Certificates. Upon delivery of an authentication
order by the Facility Lessees, the Pass Through Trustee shall cause to be
delivered Certificates duly
15
authenticated by the Pass Through Trustee, in authorized denominations equaling
in the aggregate the aggregate principal amount set forth in the authentication
order evidencing the entire ownership of the Pass Through Trust.
Section 3.3 Temporary Certificates. Pending the preparation of definitive
Certificates, the Pass Through Trustee may execute, authenticate and deliver
temporary Certificates which are printed, lithographed, typewritten, or
otherwise produced, in any denomination, containing substantially the same terms
and provisions as set forth in Exhibit A, except for such appropriate
insertions, omissions, substitutions and other variations relating to their
temporary nature as the officer executing such temporary Certificates may
determine, as evidenced by his or her execution of such temporary Certificates.
If temporary Certificates are issued, the Facility Lessees will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office of the Pass Through Trustee, or at
the office or agency of the Pass Through Trustee maintained in accordance with
Section 7.12, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Certificates, the Pass Through Trustee shall execute,
authenticate and deliver in exchange therefor definitive Certificates of
authorized denominations of a like aggregate Fractional Undivided Interest.
Until so exchanged, such temporary Certificates shall in all respects be
entitled to the same benefits under this Pass Through Trust Agreement as
definitive Certificates.
Section 3.4 Registration of Transfer and Exchange of Certificates.
(a) The Pass Through Trustee shall cause to be kept, at the office
or agency to be maintained by it in accordance with the provisions of Section
7.12, a register (the "Register") in which, subject to the provisions of this
Section 3.4, Section 3.9 and the Certificates, the Pass Through Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Pass Through Trustee shall initially be
the registrar (the "Registrar") for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Facility
Lessees may, upon notice to the Pass Through Trustee, change the Registrar at
any time.
(b) Every Restricted Certificate shall be subject to the
restrictions on transfer provided in the legend required to be set forth on the
face of each Restricted Certificate pursuant to Section 3.1, and the Holder of
each Restricted Certificate, by such Holder's acceptance thereof, agrees to be
bound by such restrictions on transfer. Whenever any Restricted Certificate is
presented or surrendered for registration of transfer or for exchange for a
Certificate registered in a name other than that of the Holder, such Restricted
Certificate must be accompanied by a certificate in substantially the form set
forth in Exhibit C hereto, dated the date of such surrender and signed by the
Holder of such Restricted Certificate, or such Holder's attorney duly
authorized in writing, as to compliance with such restrictions on transfer.
Neither the Pass Through Trustee nor any Registrar shall be required to accept
for such registration of transfer or exchange any Restricted Certificate not so
accompanied by a properly completed certificate. Notwithstanding the preceding
two sentences, a properly completed certificate shall not be
16
required in connection with any transfer of any Restricted Certificate through
the facilities of DTC or any other United States securities clearance and
settlement organization; provided, that such transfer does not require a change
in the name (other than to another nominee of DTC or such other securities
clearance and settlement organization) in which such Restricted Certificate is
then registered.
Whenever any Restricted Certificate is proposed to be transferred by
a Holder to an Institutional Accredited Investor, the Pass Through Trustee
shall have received from such Institutional Accredited Investor, prior to such
transfer, a signed letter substantially in the form of Exhibit D relating to
certain representations and agreements regarding restrictions on transfer of
such Restricted Certificate. In addition, the Holder of the Restricted
Certificate proposed to be transferred must, prior to such transfer, furnish to
the Registrar such certifications (as required by, and in the form set forth
in, this Pass Through Trust Agreement, opinions of counsel or other information
as the Registrar may reasonably request to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
The restrictions imposed by this Section 3.4 and Section 3.1 upon the
transferability of any particular Restricted Certificate shall cease and
terminate if and when such Restricted Certificate has been (i) sold pursuant to
an effective registration statement under the Securities Act, or (ii)
transferred pursuant to Rule 144 under the Securities Act (or any successor
provision thereto), unless the Holder thereof is an affiliate of any Facility
Lessee within the meaning of Rule 144 (or such successor provision). Any
Restricted Certificate as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon
surrender of such Restricted Certificate for exchange to the Pass Through
Trustee or any Registrar in accordance with the provisions of this Section 3.4
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer pursuant to Rule 144 or any successor provision, by an
Opinion of Counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to each of the Facility
Lessees, addressed to each of the Facility Lessees and the Pass Through Trustee
and in form acceptable to each of the Facility Lessees, to the effect that the
transfer of such Restricted Certificate has been made in compliance with Rule
144 or such successor provision), be exchanged for a new Certificate, of
authorized denominations of a like aggregate Fractional Undivided Interest,
which shall not bear the restrictive legend required by Section 3.1. The Pass
Through Trustee shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance with the aforementioned Opinion of Counsel.
(c) Upon surrender for registration of transfer of any Certificate
that is not a Restricted Certificate at the Corporate Trust Office, or such
other office or agency, the Pass Through Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Certificates, in authorized denominations of a like aggregate
Fractional Undivided Interest if its requirements for such transaction are met.
(d) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at any such office or agency; provided, that a Restricted
Certificate may only be exchanged for another Restricted Certificate,
17
until such restrictions on such Restricted Certificate shall cease and
terminate in accordance with the terms of this Section 3.4. Whenever any
Certificates are so surrendered for exchange, the Pass Through Trustee shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to each of
the Facility Lessees and the Pass Through Trustee and the Registrar duly
executed by the Certificateholder thereof or its attorney duly authorized in
writing.
(e) No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Pass Through
Trustee shall require payment of a sum sufficient to cover any tax or charge
that may be imposed in connection with any transfer or exchange of Certificates.
(f) All Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in accordance with the usual
practices of the Pass Through Trustee.
Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If any
mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and in the case of such destruction, loss or theft, there is
delivered to the Registrar, the Pass Through Trustee, the Facility Lessees and
the applicable Owner Lessor such security, indemnity or bond as may be required
by them to protect each of them and the Pass Through Trust from any loss that
any of them may suffer if a Certificate is replaced, then, in the absence of
notice to the Registrar or the Pass Through Trustee that such Certificate has
been acquired by a bona fide purchaser, the Pass Through Trustee, on behalf of
the Pass Through Trust, shall execute, authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like Fractional Undivided Interest with the same final
Distribution Date. In connection with the issuance of any new Certificate under
this Section 3.5, the Pass Through Trustee shall require the payment of a sum
sufficient to cover any tax or other charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Pass
Through Trustee and the Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.5 shall constitute conclusive
evidence of the appropriate Fractional Undivided Interest in the Pass Through
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 3.6 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Pass Through Trustee, the
Facility Lessees, the applicable Owner Lessor, the Registrar and any Paying
Agent may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant
to Section 4.2 and for all other purposes whatsoever, and neither the Pass
Through Trustee, any Facility Lessee, the applicable Owner Lessor, the
Registrar nor any Paying Agent shall be affected by any notice to the contrary.
Section 3.7 Cancellation. All Certificates surrendered for payment,
transfer or exchange shall, if surrendered to any Person a party hereto other
than the Registrar, be delivered by such Person to the Registrar for
cancellation. No Certificates shall be authenticated in lieu of
18
or in exchange for any Certificates canceled as provided in this Section 3.7,
except as expressly permitted by this Pass Through Trust Agreement. All
canceled Certificates held by the Registrar shall be disposed of in accordance
with the usual practice of the Pass Through Trustee and, if destroyed, a
certification of their destruction shall be delivered to the Pass Through
Trustee.
Section 3.8 Limitation of Liability for Payments. All payments or
distributions made to Certificateholders under this Pass Through Trust
Agreement shall be made only from the Trust Property and only to the extent
that the Pass Through Trustee shall have received sufficient income or proceeds
from the Trust Property to make such payments in accordance with the terms of
Section 4 of this Pass Through Trust Agreement. Each Holder of a Certificate,
by its acceptance of such Certificate, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to the Holder thereof as provided in this Pass Through Trust
Agreement. Nothing in this Pass Through Trust Agreement shall be construed as
an agreement, or otherwise creating an obligation, of (a) any Facility Lessee,
the Pass Through Trust or the Pass Through Trustee to pay any of the principal,
premium, if any, or interest due from time to time under the Lessor Notes, or
(b) any Facility Lessee, the Pass Through Trust or the Pass Through Trustee to
pay any amount due from time to time in respect of the Certificates. The
liability of an Owner Lessor under the applicable Lessor Notes shall be limited
as set forth therein and in the applicable Collateral Trust Indenture.
Section 3.9 Book-Entry and Definitive Certificates.
(a) Except for Certificates issued to Institutional Accredited
Investors which must be issued in the form of definitive, fully registered
Certificates ("Definitive Certificates"), the Certificates may be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Pass Through Trustee. In such case, the Certificates delivered
to DTC shall initially be registered on the Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided above and in subsection (d) below. As
to the Book-Entry Certificates, unless and until Definitive Certificates have
been issued pursuant to subsection (d) below:
(i) the provisions of this Section 3.9 shall be in full force
and effect;
(ii) the Facility Lessees, any Owner Lessor, the Paying Agent,
the Registrar and the Pass Through Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the Certificate
Owners;
(iii) to the extent that the provisions of this Section 3.9
conflict with any other provisions of this Pass Through Trust
Agreement (other than the provisions of any supplemental agreement
amending this Section 3.9 as permitted by this Pass Through Trust
Agreement), the provisions of this Section 3.9 shall control;
19
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the
Clearing Agency Participants; and until Definitive Certificates are
issued pursuant to subsection (d) below, the Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest and
premium, if any, on the Certificates to such Clearing Agency
Participants; and
(v) whenever this Pass Through Trust Agreement requires
or permits actions to be taken based upon instructions or directions
of Certificateholders holding Certificates evidencing a specified
percentage of the Fractional Undivided Interests in the Pass Through
Trust, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing,respectively,such required
percentage of the beneficial interest in Certificates and has
delivered such instructions to the Pass Through Trustee. The Pass
Through Trustee shall have no obligation to determine (and shall
incur no liability in connection with any determination of) whether
the Clearing Agency has in fact received any such instructions.
(b) With respect to Book-Entry Certificates, whenever notice or
other communication to the Certificateholders is required under this Pass
Through Trust Agreement, unless and until Definitive Certificates shall have
been issued pursuant to subsection (d) below, the Pass Through Trustee shall
give all such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency and/or the Clearing Agency
Participants (and, upon receipt of a valid Certificate Owner Request, to the
Certificateholder or Certificate Owner making such request), and shall make
available additional copies as reasonably requested by such Clearing Agency
Participants.
(c) Unless and until Definitive Certificates are issued pursuant to
subsection (d) below, on the Record Date prior to each applicable Distribution
Date and Special Distribution Date, the Pass Through Trustee will request from
the Clearing Agency a "Securities Position Listing" setting forth the names of
all Clearing Agency Participants reflected on the Clearing Agency's books as
holding interests in the Certificates on such Record Date. The Pass Through
Trustee shall mail to each such Clearing Agency Participant the statements
described in Section 4.3 hereof.
(d) If with respect to the Certificates (i) any Facility Lessee
advises the Pass Through Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities and the
Facility Lessees are unable to locate a qualified successor within 90 days,
(ii) the Facility Lessees (or, following the occurrence of a Lease Event of
Default, the applicable Owner Lessors) at their option, advise the Pass Through
Trustee in writing that they elect to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of Default,
Certificate Owners of Book-Entry Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Pass Through
Trust, by Act of said Certificate Owners delivered to the Facility Lessees and
the
20
Pass Through Trustee, advise the Facility Lessees, the Owner Lessors, the Pass
Through Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of the Certificate
Owners, then the Pass Through Trustee shall notify all Certificate Owners,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates. Upon surrender to the Pass Through
Trustee of all the Certificates held by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration of
Definitive Certificates in the names of Certificate Owners, the Pass Through
Trust shall issue and deliver the Definitive Certificates in accordance with
the instructions of the Clearing Agency. None of the Facility Lessees, the
Owner Lessors, the Registrar, the Paying Agent or the Pass Through Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration
instructions. Upon the issuance of Definitive Certificates, the Pass Through
Trustee shall recognize the Person in whose name the Definitive Certificates
are registered in the Register as Certificateholder hereunder. None of the
Facility Lessees nor the Pass Through Trustee shall be liable if the Facility
Lessees are unable to locate a qualified successor Clearing Agency.
(e) The Certificates sold in offshore transactions in reliance on
Regulation S under the Securities Act will be represented initially by one or
more temporary Book-Entry Certificates, in definitive, fully registered form
without interest coupons (collectively, the "Temporary Regulation S Global
Certificate") and will be deposited with the Pass Through Trustee as custodian
for DTC and registered in the name of a nominee of DTC for the accounts of the
Euroclear System ("Euroclear") and Clearstream Banking, S.A. ("Clearstream").
Each Temporary Regulation S Global Certificate will be exchangeable for one or
more permanent Book-Entry Certificate (collectively, the "Permanent Regulation
S Global Certificate," and together with the Temporary Regulation S Global
Certificate, the "Regulation S Global Certificate") on or after 40 days after
the later of the commencement of the offering of the Certificates and the
Issuance Date upon certification that the beneficial interests in such
Book-Entry Certificate are owned by persons who are not U.S. persons as defined
in Regulation S. Prior to the expiration of such 40-day period, beneficial
interests in the Temporary Regulation S Global Certificate may be held only
through Euroclear or Clearstream, and any resale or other transfer of such
interests to U.S. persons shall not be permitted during such period unless such
resale or transfer is made pursuant to Rule 144A or Regulation S under the
Securities Act and in accordance with the certification requirements specified
in Section 3.9(f) below. The aggregate original principal amount of the
Regulation S Global Certificate may from time to time be increased or decreased
by adjustments made on the records of the Pass Through Trustee, as custodian
for DTC, in connection with a corresponding decrease or increase in the
aggregate original principal amount of a Definitive Certificate or the
Restricted Global Certificate, as hereinafter provided.
(f) The Certificates sold in reliance on Rule 144A under the
Securities Act will be represented by a one or more permanent Book-Entry
Certificate, in definitive, fully registered form without interest coupons
(collectively, the "Restricted Global Certificate"), which will be deposited
with the Pass Through Trustee as custodian for DTC and registered in the name
of a nominee of DTC. Prior to the 40th day after the later of the commencement
of the offering of the Certificates and the Issuance Date, a beneficial
interest in the Temporary Regulation S Global Certificate may be transferred to
a person who takes delivery in the form of
21
an interest in the Restricted Global Certificate only upon receipt by the Pass
Through Trustee of a written certification from the transferor (in the form of
Exhibit C hereto) to the effect that such transfer is being made to a person
who the transferor reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and in accordance with any applicable securities laws of any state of
the United States or any other jurisdiction. Beneficial interests in the
Restricted Global Certificate may be transferred to a person who takes delivery
in the form of an interest in the Regulation S Global Certificate whether
before, on or after such 40th day, only upon receipt by the Pass Through
Trustee of a written certification (in the form of Exhibit C hereto) to the
effect that such transfer is being made in accordance with Regulation S under
the Securities Act and, if such transfer occurs prior to such 40th day, the
interest will be held immediately thereafter only through Euroclear or
Clearstream. The aggregate initial principal amount of the Restricted Global
Certificate may from time to time be increased or decreased by adjustments made
on the records of the Pass Through Trustee, as custodian for DTC, in connection
with a corresponding decrease or increase in the aggregate initial principal
amount of a Definitive Certificate or a Regulation S Global Certificate, as
hereinafter provided.
(g) Any beneficial interest in one of the Book-Entry Certificates
that is transferred to a person who takes delivery in the form of an interest
in another Book-Entry Certificate will, upon transfer, cease to be an interest
in such first Book-Entry Certificate and become an interest in such other
Book-Entry Certificate and, accordingly, will thereafter be subject to all
transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Book-Entry Certificate for so long as it remains such
an interest. Upon the transfer of Definitive Certificates to a qualified
institutional buyer or in accordance with Regulation S, such Definitive
Certificates will be exchanged for an interest in a Book-Entry Certificate.
(h) The Facility Lessees and the Pass Through Trustee, if
necessary, shall each enter into the Letter of Representations with respect to
the Certificates and fulfill its responsibilities thereunder.
Section 3.10 Form of Certification. In connection with any certification
contemplated by Section 3.4, relating to compliance with certain restrictions
relating to transfers of Restricted Certificates, such certification shall be
provided substantially in the form of Exhibit C hereto, with only such changes
as shall be reasonably approved by the Facility Lessees and reasonably
acceptable to the Pass Through Trustee.
SECTION 4. DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.1 Certificate Account and Special Payments Account.
(a) The Pass Through Trust shall establish and maintain on behalf
of the Certificateholders the Certificate Account with the Pass Through Trustee
as one or more non-interest bearing accounts. The Pass Through Trustee shall
hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Pass Through Trust Agreement. On each day when a Scheduled
Payment is made under a Lease to the Pass Through Trustee, as holder of the
Lessor Notes issued under the related Collateral Trust Indenture, the Pass
Through Trustee upon receipt of
22
such scheduled payment shall immediately deposit the aggregate amount of such
Scheduled Payment in the Certificate Account.
(b) The Pass Through Trust shall establish and maintain on behalf
of the Certificateholders the Special Payments Account with the Pass Through
Trustee as one or more accounts, which shall be non-interest bearing except as
provided in Section 4.4. The Pass Through Trustee shall hold the Special
Payments Account in trust for the benefit of the Certificateholders, and shall
make or permit withdrawals therefrom only as provided in this Pass Through
Trust Agreement. On each day when a Special Payment is made to the Pass Through
Trustee, as holder of the Lessor Notes issued under the applicable Collateral
Trust Indenture, the Pass Through Trustee upon receipt shall immediately
deposit the aggregate amounts of such Special Payments in the Special Payments
Account.
(c) The Pass Through Trustee shall present to the applicable
Indenture Trustee each Lessor Note on the date of its stated final maturity, or
in the case of any Lessor Note which is to be redeemed or otherwise prepaid in
whole pursuant to the Collateral Trust Indenture, on the applicable redemption
on or other prepayment date under the Collateral Trust Indenture.
Section 4.2 Distributions from Certificate Account and Special Payments
Account.
(a) On each Distribution Date if the Pass Through Trustee receives
payment of the Scheduled Payments due on any Lessor Notes on such date by 12:00
noon, New York time, on such date, the Pass Through Trustee shall distribute
out of the Certificate Account the entire amount deposited therein pursuant to
Section 4.1(a). If a Scheduled Payment is received by the Pass Through Trustee
after 12:00 noon, New York time, on a Distribution Date, such payment shall be
distributed on the next Business Day. If a Scheduled Payment is not received by
the Pass Through Trustee on a Distribution Date but is received prior to the
time such payment would become a Special Payment, such payment shall be
distributed (i) on the date received, if received by 12:00 noon, New York time,
on such date or (ii) on the next Business Day, if received after 12:00 noon,
New York time, on such date. There shall be so distributed to each
Certificateholder of record on the Record Date with respect to such
Distribution Date (other than as provided in Section 11.1 concerning the final
distribution) (i) if (A) DTC is the Certificateholder of record, or (B) a
Certificateholder holds a Certificate or Certificates in an aggregate amount
greater than $10,000,000 or (C) a Certificateholder holds a Certificate or
Certificates in an aggregate amount greater than $1,000,000 and so requests to
the Pass Through Trustee, by wire transfer in immediately available funds to an
account maintained by such Certificateholder with a bank, or (ii) if none of
the above apply, by check mailed to such Certificateholder at the address
appearing in the Register, such Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest held by such Certificateholder) of
the aggregate amount in the Certificate Account.
(b) On each Special Distribution Date with respect to any Special
Payment, if the Pass Through Trustee receives the Special Payments due on the
required date by 12:00 noon, New York time, on such date, the Pass Through
Trustee shall distribute out of the Special Payments Account the entire amount
deposited therein with respect to such Special Payment pursuant to this Section
4.2(b). The Pass Through Trustee shall make such distribution on a pro rata
basis among the Certificateholders. If a Special Payment is received by the
Pass Through
23
Trustee after 12:00 noon, New York time, on a Special Distribution Date, such
payment shall be distributed on the next Business Day. If a Special Payment is
not received by the Pass Through Trustee on a Special Distribution Date, such
payment shall be distributed (i) on the date received, if received by 12:00
noon, New York time, on such date or (ii) on the next Business Day, if received
after 12:00 noon, New York time, on such date. There shall be so distributed to
each Certificateholder of record on the Record Date with respect to such
Special Distribution Date (other than as provided in Section 11.1 concerning
the final distribution) (i) if (A) DTC is the Certificateholder of record, or
(B) a Certificateholder holds a Certificate or Certificates in an aggregate
amount greater than $10,000,000 or (C) a Certificateholder holds a Certificate
or Certificates in an aggregate amount greater than $1,000,000 and so requests
to the Pass Through Trustee, by wire transfer in immediately available funds to
an account maintained by the Certificateholder with a bank, or (ii) if none of
the above apply, by check mailed to such Certificateholder at the address
appearing in the Register, such Certificateholder's pro rata share (based on
the aggregate Fractional Undivided Interest held by such Certificateholder) of
the aggregate amount in the Special Payments Account on account of such Special
Payment.
(c) The Pass Through Trustee shall, at the expense of the Facility
Lessees, cause notice of each Special Payment to be mailed to (i) each
Certificateholder, at the address of such Certificateholder as it appears in
the Register and (ii) any Certificate Owner who has made a valid Certificate
Owner Request, at the address specified in such Certificate Owner Request. In
the event of prepayment of any Lessor Notes, such notice shall be mailed not
less than 20 days prior to the date any such Special Payment is scheduled to be
distributed. In the case of any other Special Payments, such notice shall be
mailed as soon as practicable after the Pass Through Trustee has confirmed that
it has received funds for such Special Payment. Notices mailed by the Pass
Through Trustee shall set forth:
(i) the Special Distribution Date and the Record Date
therefor (except as otherwise provided in Section 11.1);
(ii) the amount of the Special Payment per $1,000 of face
amount of Certificates and the amount thereof constituting
principal, premium, if any, and interest;
(iii) the reason for the Special Payment; and
(iv) if the Special Distribution Date is the same date as a
Distribution Date, the total amount to be received on such date per
$1,000 of face amount of Certificates.
If the amount of premium payable upon the prepayment of a Lessor Note has not
been calculated at the time that the Pass Through Trustee mails notice of a
Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed. If a Distribution Date or Special Distribution Date is not a
Business Day, distribution shall be made on the immediately following Business
Day.
24
Section 4.3 Statements to Certificateholders.
(a) On each Distribution Date and Special Distribution Date, the
Pass Through Trustee will include with each distribution to Certificateholders
and any Certificate Owner who has made a valid Certificate Owner Request a
statement, giving effect to such distribution to be made on such date, setting
forth the following information (per a $1,000 face amount Certificate):
(i) the amount of such distribution allocable to principal and
the amount allocable to premium, if any; and
(ii) the amount of such distribution allocable to interest. (b) Within a
reasonable period of time after the end of each calendar year but not later than
the latest date permitted by law, the Pass Through Trustee shall furnish (i) to
each Person who at any time during such calendar year was a Certificateholder of
record and (ii) to any Person who at any time during such calendar year was a
Certificate Owner who has made a valid Certificate Owner Request and provided
the Pass Through Trustee with such pertinent information as the Pass Through
Trustee shall reasonably request, a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) with respect to the Pass
Through Trust for such calendar year or, in the event such Person was a
Certificateholder of record or Certificate Owner during a portion of such
calendar year, for the applicable portion of such year, and such other items as
are readily available to the Pass Through Trustee and which a Certificateholder
or Certificate Owner shall reasonably request as necessary for the purpose of
such Certificateholder's or Certificate Owner's preparation of its Federal
income tax returns.
(c) Based on information provided by the Facility Lessees, if there
shall occur any change in the principal amortization schedule of the Lessor
Notes resulting in a change in the schedule of expected distributions on the
Certificates from that set forth on page 31 of the Offering Circular, the Pass
Through Trustee shall promptly furnish to the Certificateholders a statement
setting forth the revised principal amortization schedule of the Lessor Notes
and the resulting revised schedule of expected distributions on the
Certificates.
Section 4.4 Investment of Special Payment Moneys. Any money received by the
Pass Through Trustee pursuant to Section 4.1(b) representing a Special Payment
which is not to be promptly distributed shall, to the extent practicable, be
invested in Permitted Government Investments by the Pass Through Trustee pending
distribution of such Special Payment pursuant to Section 4.2. Any investment
made pursuant to this Section 4.4 shall be in such Permitted Government
Investments having maturities not later than the date that such moneys are
required to be paid to make the payment required under Section 4.2 on the
applicable Special Distribution Date and the Pass Through Trustee shall hold any
such Permitted Government Investments until maturity. The Pass Through Trustee
shall have no liability with respect to any investment made pursuant to this
Section 4.4, other than by reason of the willful misconduct or negligence of the
Pass Through Trustee. All income and earnings from such investments shall be
distributed on such Special Distribution Date as part of such Special Payment.
25
SECTION 5. FINANCIAL STATEMENTS AND OTHER REPORTS
For so long as any Certificates remain Outstanding, the Facility Lessees
shall furnish:
(a) to Certificateholders, Certificate Owners and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act so long as the
Certificates are not freely transferable under the Securities Act; and
(b) to the Pass Through Trustee, who in turn shall provide such
information, upon a Certificate Owner Request, to Certificateholders and
Certificate Owners:
(i) within 60 days following the end of each of the first three
fiscal quarters of the Facility Lessees during each fiscal year, a
copy of Form 10-Q (or any successor form) filed by the Facility
Lessees with the SEC for such fiscal quarter, or if the Facility
Lessees are not then subject to the reporting requirements of the
Exchange Act, unaudited consolidated quarterly financial statements
for the Facility Lessees for such fiscal quarter;
(ii) within 120 days following the end of the fiscal year of
the Facility Lessees, a copy of the Form 10-K (or any successor form)
filed by the Facility Lessees with the SEC for such fiscal year, or,
if the Facility Lessees are not then subject to the reporting
requirements of the Exchange Act, audited consolidated annual
financial statements; and
(iii) within 20 days after the occurrence thereof, (A) a
copy of any current report on Form 8-K (or any successor form) filed
by the Facility Lessees with the SEC, if any, and (B) notice of the
following events (1) a Change of Control; (2) any litigation or claim
against the Facility Lessees, or the South Point, Broad River and
RockGen which could reasonably be expected to have a Material Adverse
Effect; (3) the appointment of a receiver over any of the Facility
Lessees or the confirmation of a plan of reorganization or
liquidation for any of the Facility Lessees; or (4) the resignation
or dismissal of the independent accountants engaged by the Facility
Lessees.
SECTION 6. DEFAULT
Section 6.1 Events of Default.
(a) With respect to any Lessor Note, if any Lease Indenture Event
of Default under the applicable Collateral Trust Indenture (an "Event of
Default") shall occur and be continuing, then, and in each and every case, so
long as such Lease Indenture Event of Default shall be continuing, the Pass
Through Trustee may vote all of the Lessor Notes issued under the Collateral
Trust Indenture held in the Pass Through Trust, and upon the Direction of the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than a majority in interest of the Fractional Undivided Interests
evidenced by all Certificates at the time Outstanding (determined as provided
in Section 1.4(c)), the Pass Through Trustee shall vote all of such Lessor
Notes, in favor of directing the applicable Indenture Trustee to declare the
unpaid principal amount of such Lessor Notes then outstanding and accrued
interest thereon to be due
26
and payable under, and to the extent permitted by and in accordance with, the
provisions of such Collateral Trust Indenture. In addition, with respect to any
Lessor Note, if a Lease Indenture Event of Default shall have occurred and be
continuing under the related Lease Indenture, the Pass Through Trustee may in
its discretion, and upon the Direction of the Holders of Certificates
evidencing Fractional Undivided Interest aggregating not less than a majority
in interest of the Fractional Undivided Interests evidenced by all Certificates
at the time Outstanding (determined as provided in Section 1.4(c)) as provided
in Section 6.4 shall, in accordance with such Collateral Trust Indenture vote
the applicable Lessor Notes issued thereunder held in the Pass Through Trust to
direct the applicable Indenture Trustee regarding the exercise of remedies
provided in such Collateral Trust Indenture and consistent with the terms
thereof. Notwithstanding the foregoing, no Lease Indenture Event of Default
under a given Collateral Trust Indenture shall give rise to a Lease Indenture
Event of Default under any other Collateral Trust Indenture.
In addition, after an Event of Default shall have occurred and be
continuing, the Pass Through Trustee may in its discretion, and upon the
Direction of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest of the Fractional
Undivided Interests evidenced by all Certificates at the time Outstanding
(determined as provided in Section 1.4(c)) shall, by such officer or agent as
it may appoint, sell, convey, transfer and deliver all or a portion of such
Lessor Note or Lessor Notes issued under the Collateral Trust Indenture with
respect to which the Event of Default has occurred, without recourse to or
warranty by the Pass Through Trustee or any Certificateholders to any Person.
In any such case, the Pass Through Trustee shall sell, assign, contract to sell
or otherwise dispose of and deliver such Lessor Note or Lessor Notes in one or
more parcels at public or private sale or sales, at any location or locations
at the option of the Pass Through Trustee, all upon such terms and conditions
as it may reasonably deem advisable and at such prices as it may reasonably
deem advisable, for cash. The Pass Through Trustee shall give notice to the
applicable Facility Lessee and Owner Lessor promptly after any such sale.
In the event that the Pass Through Trustee shall deem it advisable to
sell any or all of the Lessor Notes in accordance with the provisions of this
Section, the parties agree that if registration of any such Lessor Notes shall
be required, in the opinion of counsel for the Pass Through Trustee under the
Securities Act of 1933, as amended, or other applicable law, and regulations
promulgated thereunder, and if the Facility Lessees shall not effect, or cause
to be effected, such registration promptly, the Pass Through Trustee may sell
any such Lessor Notes at a private sale, and no Person shall attempt to
maintain that the prices at which such Lessor Notes are sold are inadequate by
reason of the failure to sell at public sale, or hold the Pass Through Trustee
liable thereafter.
Section 6.2 Incidents of Sale of Lessor Notes. Upon any sale of all or
any part of the Lessor Notes made either under the power of sale given under
this Pass Through Trust Agreement or otherwise for the enforcement of this Pass
Through Trust Agreement, the following shall be applicable:
(1) Certificateholders and Pass Through Trustee May Purchase
Lessor Notes. Any Certificateholder, the Pass Through Trustee in its
individual or any other capacity or any other Person may bid for and
purchase any of the Lessor Notes and, upon compliance
27
with the terms of sale, may hold, retain, possess and dispose of such
Lessor Notes in their or its or his own absolute right without further
accountability.
(2) Receipt of Pass Through Trustee Shall Discharge Purchaser.
The receipt of immediately available funds by the Pass Through Trustee or
the officer or agent appointed by the Pass Through Trustee shall be a
sufficient discharge to any purchaser for his purchase money, and, after
paying such purchase money and receiving such receipt, such purchaser or
his personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Pass Through Trustee, upon any sale made either under the
power of sale given by this Pass Through Trust Agreement or otherwise for
the enforcement of this Pass Through Trust Agreement, shall be applied as
provided in Section 4.2.
Section 6.3 Judicial Proceedings Instituted by Pass Through Trustee.
(a) Pass Through Trustee May Bring Suit. If there shall be a
failure to make payment of the principal of, premium, if any, or interest on
any Lessor Note, or if there shall be any failure to pay Rent (as defined in a
Lease) under the Lease related to any Lessor Note when due and payable, then
the Pass Through Trustee, in its own name, and as trustee of an express trust,
as holder of such Lessor Notes shall be, to the extent permitted by and in
accordance with the terms of the Operative Documents, entitled and empowered
(but not obligated) to institute any suits, actions or proceedings at law, in
equity or otherwise, for the collection of the sums so due and unpaid on such
Lessor Notes or under such Lease and may prosecute any such claim or proceeding
to judgment or final decree with respect to the whole amount of any such sums
so due and unpaid; subject, however, to the limitations of liability set forth
in the Lessor Notes and the Operative Documents.
(b) Pass Through Trustee May File Proofs of Claim; Appointment of
Pass Through Trustee as Attorney-in-Fact in Judicial Proceedings. The Pass
Through Trustee in its own name, or as trustee of an express trust, or as
attorney-in-fact for the Certificateholders, or in any one or more of such
capacities (irrespective of whether distributions on the Certificates shall
then be due and payable, or the payment of the principal on any Lessor Notes
shall then be due and payable, as therein expressed or by declaration or
otherwise and irrespective of whether the Pass Through Trustee shall have made
any demand to the applicable Indenture Trustee for the payment of overdue
principal, premium (if any) or interest on any Lessor Notes), shall, subject to
the terms of the Operative Documents, be entitled and empowered to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Pass Through Trustee and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to any Facility Lessee, any Owner Lessor, any Lessor Manager or any
Owner Participant, or their respective creditors or property. Subject to the
terms of the Operative Documents, any receiver, assignee, trustee, liquidator
or sequestrator (or similar official) in any such judicial proceeding is hereby
authorized by each Certificateholder to make payments in respect of such claim
to the Pass Through Trustee, and in the event that the Pass Through Trustee
shall consent to the making
28
of such payments directly to the Certificateholders, to pay to the Pass Through
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Pass Through Trustee, its agents and counsel
and any other amounts due the Pass Through Trustee under Section 7.7. Subject
to Section 6.4, nothing contained in this Pass Through Trust Agreement shall be
deemed to give to the Pass Through Trustee any right to accept or consent to
any plan of reorganization or otherwise by action of any character in any such
proceeding to waive or change in any way any right of any Certificateholder.
Section 6.4 Control by Certificateholders. The Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest of the Fractional Undivided Interests evidenced by all Certificates
at the time Outstanding (determined as provided in Section 1.4(c)) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Pass Through Trustee, or exercising any trust or
power conferred upon the Pass Through Trustee, under this Pass Through Trust
Agreement, including any right of the Pass Through Trustee as holder of the
Lessor Notes, provided that:
(1) such Direction shall not be in conflict with any rule of
law or with this Pass Through Trust Agreement and would not involve the
Pass Through Trustee in personal liability or expense;
(2) the Pass Through Trustee shall not determine that the
action so directed would expose it to personal liability or be unjustly
prejudicial to the Certificateholders not taking part in such Direction;
(3) the Pass Through Trustee may take any other action deemed
proper by the Pass Through Trustee which is not inconsistent with such
Direction;
(4) such Holders shall have offered to the Pass Through
Trustee security or indemnity against the costs, expenses or liabilities
which may be incurred thereby; and
(5) if a Lease Indenture Event of Default shall have occurred
and be continuing, such Direction shall not obligate the Pass Through
Trustee to vote more than a corresponding majority of the related Lessor
Notes held by the Pass Through Trust in favor of directing any action by
the applicable Indenture Trustee with respect to such Lease Indenture
Event of Default.
Section 6.5 Waiver of Defaults. The Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
of the Fractional Undivided Interests evidenced by all Certificates at the time
Outstanding (determined as provided in Section 1.4(c)) may on behalf of the
Certificateholders of all the Certificates waive any Default hereunder and its
consequences or may instruct the Pass Through Trustee to waive any default
under a Collateral Trust Indenture and its consequences, except:
(1) a default in the deposit of any Scheduled Payment or
Special Payment under Section 4.1 or in the distribution of any payment
under Section 4.2 on the Certificates; or
29
(2) a default in the payment of the principal of, premium, if
any, or interest on any Lessor Notes; or
(3) a default in respect of a covenant or provision hereof
which under Section 9 hereof cannot be modified or amended without the
consent of the Holder of each Outstanding Certificate affected.
Upon any such waiver, such Default shall cease to exist with respect
to this Pass Through Trust Agreement, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Pass
Through Trust Agreement and any direction given by the Pass Through Trustee on
behalf of such Holders to the applicable Indenture Trustee shall be annulled
with respect thereto; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon. Upon
any such waiver with respect to a Default under a Collateral Trust Indenture,
the Pass Through Trustee shall vote a corresponding majority of the Lessor
Notes issued under the applicable Collateral Trust Indenture to waive the
corresponding Lease Indenture Default or Lease Indenture Event of Default.
With respect to consents, approvals, waivers and authorizations which
under the terms of Section 9 of a Collateral Trust Indenture may be given by
the applicable Indenture Trustee without the necessity of the consent of any of
the holders of Lessor Notes issued with respect to such Collateral Trust
Indenture, no consent, approval, waiver or authorization shall be required
hereunder on the part of the Pass Through Trustee or the Certificateholders.
Section 6.6 Undertaking to Pay Court Costs. All parties to this Pass
Through Trust Agreement, and each Certificateholder by his acceptance of a
Certificate, shall be deemed to have agreed that any court may in its
discretion require, in any suit, action or proceeding for the enforcement of
any right or remedy under this Pass Through Trust Agreement, or in any suit,
action or proceeding against the Pass Through Trustee for any action taken or
omitted by it as Pass Through Trustee hereunder, the filing by any party
litigant in such suit, action or proceeding of an undertaking to pay the costs
of such suit, action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, action or proceeding, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section 6.6 shall not apply to
(a) any suit, action or proceeding instituted by any Holder, or group of
Holders, holding in the aggregate Certificates evidencing Fractional Undivided
Interests aggregating more than 10% of the Pass Through Trust, (b) any suit,
action or proceeding instituted by any Certificateholder for the enforcement of
the distribution of payments pursuant to Section 4.2 hereof on or after the
respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Pass Through Trustee.
Section 6.7 Right of Certificateholders to Receive Payments Not to Be
Impaired. Anything in this Pass Through Trust Agreement to the contrary
notwithstanding, but subject to Section 3.8 hereof, the right of any
Certificateholder to receive distributions of payments required pursuant to
Section 4.2 hereof on the Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date or
Special Distribution Date, shall not be impaired or affected without the
consent of such Certificateholder.
30
Section 6.8 Certificateholders May Not Bring Suit Except Under Certain
Conditions. A Certificateholder shall not have the right to institute any suit,
action or proceeding at law or in equity or otherwise with respect to this Pass
Through Trust Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Pass Through Trust Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Pass Through Trustee of a continuing Event of Default;
(2) the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest of
the Fractional Undivided Interests evidenced by all Certificates at the
time Outstanding (determined as provided in Section 1.4(c)) shall have
requested the Pass Through Trustee in writing to institute such suit,
action or proceeding and shall have offered to the Pass Through Trustee
indemnity as provided in Section 7.3(e);
(3) the Pass Through Trustee shall have refused or neglected
to institute any such suit, action or proceeding for 60 days after receipt
of such notice, request and offer of indemnity; and
(4) no Direction inconsistent with such written request has
been given to the Pass Through Trustee during such 60-day period by the
Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority in interest of the Fractional
Undivided Interests evidenced by all Certificates at the time Outstanding
(determined as provided in Section 1.4(c)).
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Collateral
Trust Indenture on any property subject thereto, or the rights of the
Certificateholders or the holders of the Lessor Notes, (ii) obtain or seek to
obtain priority over or preference to any other such Holder, or (iii) enforce
any right under this Pass Through Trust Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all the
Certificateholders subject to the provisions of this Pass Through Trust
Agreement.
Section 6.9 Remedies Cumulative. Every remedy given hereunder to the
Pass Through Trustee or to any of the Certificateholders shall not be exclusive
of any other remedy or remedies, and every such remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
SECTION 7. THE PASS THROUGH TRUSTEE
Section 7.1 Certain Duties and Responsibilities.
(a) Prior to an Event of Default of which a Responsible Officer of
the Pass Through Trustee has actual knowledge:
31
(1) the Pass Through Trustee shall not be liable except for
the performance of such duties as are specifically set out in this Pass
Through Trust Agreement; and
(2) the Pass Through Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, in the absence of bad faith on the part of the Pass Through
Trustee, upon Officer's Certificates or Opinions of Counsel conforming to
the requirements of this Pass Through Trust Agreement;
but the Pass Through Trustee shall, at any time that the Certificates shall be
subject to the Trust Indenture Act, examine any evidence furnished to it
pursuant to this Pass Through Trust Agreement or Section 314 of the Trust
Indenture Act to determine whether or not such evidence conforms to the
requirements of this Pass Through Trust Agreement; provided, however, that the
Pass Through Trustee shall not be responsible for the accuracy or content of
such evidence.
(b) In case an Event of Default has occurred and is continuing, the
Pass Through Trustee shall exercise each of the rights and powers vested in it
by this Pass Through Trust Agreement and use the same degree of care and skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Pass Through Trust Agreement shall be
construed to relieve the Pass Through Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph (c) shall not be construed to limit the effect
of paragraph (a) of this Section 7.1;
(2) the Pass Through Trustee shall not be liable in its individual
capacity for any error of judgment made in good faith by a Responsible
Officer of the Pass Through Trustee, unless it shall be proved that the
Pass Through Trustee was negligent in ascertaining the pertinent facts; and
(3) the Pass Through Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the Direction of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest of
the Fractional Undivided Interests evidenced by all Certificates at the
time Outstanding (determined as provided in Section 1.4(c)) (A) relating
to the time, method and place of conducting any proceeding for any remedy
available to the Pass Through Trustee, or (B) exercising any trust or
power conferred upon the Pass Through Trustee, under this Pass Through
Trust Agreement.
(d) Whether or not herein expressly so provided, every provision of
this Pass Through Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Pass Through Trustee shall be
subject to the provisions of this Section 7.1.
Section 7.2 Notice of Defaults. The Pass Through Trustee shall give to
the Certificateholders, at any time that the Certificates shall be subject to
the Trust Indenture Act, in the manner and to the extent required by Section
313(c) of the Trust Indenture Act, and to each of the Facility Lessees, the
applicable Owner Lessor and the applicable Indenture Trustee in
32
accordance with Section 12.3, notice of all Defaults actually known to a
Responsible Officer of the Pass Through Trustee within 90 days after the
occurrence thereof; provided, however, that, except in the case of a Default in
the payment of the principal of, premium, if any, or interest on any Lessor
Note, the Pass Through Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Pass Through Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders.
Section 7.3 Certain Rights of Pass Through Trustee. Except as otherwise
provided in Section 7.1:
(a) the Pass Through Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any Act, Direction,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of any of the Facility Lessees, an
Owner Lessor or any Indenture Trustee mentioned herein shall be sufficiently
evidenced by a Request;
(c) whenever in the administration of this Pass Through Trust
Agreement the Pass Through Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Pass Through Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate of any Facility Lessee, an Owner Lessor or the
applicable Indenture Trustee;
(d) the Pass Through Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Pass Through Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Pass Through Trust
Agreement at the request or direction of any of the Certificateholders pursuant
to this Pass Through Trust Agreement, unless such Certificateholders shall have
offered to the Pass Through Trustee reasonable security or indemnity against
the cost, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Pass Through Trustee shall not be bound to make any
investigation into the facts or matters stated in any Act, Direction,
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document;
(g) the Pass Through Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Pass Through Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it hereunder with due care;
33
(h) the Pass Through Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion of rights or powers conferred upon it by
this Pass Through Trust Agreement;
(i) the right of the Pass Through Trustee to perform any
discretionary act enumerated in this Pass Through Trust Agreement shall not be
construed as a duty, and the Pass Through Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such act;
(j) the Pass Through Trustee shall not be required to give any bond
or surety in respect of the execution of the trust fund created hereby or the
powers granted hereunder; and
(k) the Pass Through Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to record this Pass Through Trust Agreement.
Section 7.4 Not Responsible for Recitals; Issuance of Certificates. The
recitals contained herein and in the Certificates, except the certificates of
authentication, shall not be taken as the statements of the Pass Through
Trustee, and the Pass Through Trustee assumes no responsibility for their
correctness. The Pass Through Trustee makes no representations as to the
validity or sufficiency of this Pass Through Trust Agreement, the Lessor Notes,
the Operative Documents, or the Certificates, or the collateral securing the
Lessor Notes, except that the Pass Through Trustee hereby represents and
warrants that this Pass Through Trust Agreement has been, and each Certificate
will be, executed and delivered by one of its officers who is duly authorized
to execute and deliver such document on its behalf.
Section 7.5 May Hold Certificates. The Pass Through Trustee, any Paying
Agent, Registrar or any other agent, in their respective individual or any
other capacity, may become the owner or pledgee of Certificates and may
otherwise deal with any Facility Lessee, any Owner Lessor, any Owner
Participant or any Indenture Trustee with the same rights it would have if it
were not the Pass Through Trustee, Paying Agent, Registrar or such other agent,
subject to Section 7.8 in the case of the Pass Through Trustee. Section 7.6
Money Held in Pass Through Trust. Money held by the Pass Through Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Pass Through Trustee
nor the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein.
Section 7.7 Compensation, Reimbursement and Indemnification. The
Facility Lessees agree on a joint and severable basis:
(1) to pay, or cause to be paid, to the Pass Through Trustee
from time to time the compensation separately agreed to by the Pass
Through Trustee and any Facility Lessee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust); and
34
(2) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Pass Through Trustee upon its
request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Pass Through Trustee in accordance with
any provision of this Pass Through Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith.
In addition, the Pass Through Trustee shall be entitled to
reimbursement from, and shall have a lien prior to the Certificates upon, all
property and funds held or collected by the Pass Through Trustee in its
capacity as Pass Through Trustee for any tax incurred without negligence, bad
faith or willful misconduct, on its part, arising out of or in connection with
the acceptance or administration of this Pass Through Trust (other than any tax
attributable to the Pass Through Trustee's compensation for serving as such),
including any costs and expenses incurred in contesting the imposition of any
such tax. If the Pass Through Trustee reimburses itself for any such tax, it
will within 30 days mail a brief report setting forth the circumstances thereof
to all Certificateholders as their names and addresses appear in the Register.
Section 7.8 Corporate Trustee Required; Eligibility. There shall at all
times be a Pass Through Trustee hereunder which (a) shall be, at any time that
the Certificates shall be subject to the Trust Indenture Act, a Person eligible
to act as a trustee under Section 310(a) of the Trust Indenture Act and (b)
shall be a corporation organized and doing business under the laws of the
United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $150,000,000, and subject to supervision or examination by Federal or
state authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 7.8, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Pass Through Trustee shall cease to be eligible
in accordance with the provisions of clause (a) of this Section 7.8 at a time
when it is required to be so qualified, it shall resign immediately in the
manner and with the effect hereinafter specified in this Section 7.
Section 7.9 Resignation and Removal: Appointment of Successor.
(a) No resignation or removal of the Pass Through Trustee and no
appointment of a successor Pass Through Trustee pursuant to this Section 7.9
shall become effective until the acceptance of appointment by the successor
Pass Through Trustee under Section 7.10.
(b) The Pass Through Trustee may resign at any time by giving
written notice thereof to the Facility Lessees, the Authorized Agents, the
Owner Lessors, the Owner Participants and each Indenture Trustee. If an
instrument of acceptance by a successor Pass Through Trustee shall not have
been delivered to the Facility Lessees, the Owner Lessors, the Owner
Participants and each Indenture Trustee within 30 days after the giving of such
notice of resignation, the resigning Pass Through Trustee may petition any
court of competent jurisdiction for the appointment of a successor Pass Through
Trustee.
35
(c) The Pass Through Trustee may be removed at any time by Act of
the Holders holding Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Pass Through Trust
delivered to the Pass Through Trustee and to the Facility Lessees, the Owner
Lessors and each Indenture Trustee.
(d) If at any time:
(1) the Pass Through Trustee fails to, at any time that the
Certificates shall be subject to the Trust Indenture Act, comply with
the requirements of Section 310 of the Trust Indenture Act after
written request for such compliance by a Certificateholder that has
been a bona fide Certificateholder for at least six months; or
(2) the Pass Through Trustee shall cease to be eligible under
Section 7.8 hereof and shall fail to resign after written request
therefor by the Facility Lessees (or, following the occurrence and
during the continuation of a Lease Event of Default, the applicable
Owner Lessor) or by any such Certificateholder; or
(3) the Pass Through Trustee shall become incapable of acting
or shall be adjudged bankrupt or insolvent or a receiver of the Pass
Through Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Pass Through Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any case, (i) the Facility Lessees (or, following the occurrence and
during the continuation of a Lease Event of Default, the applicable Owner
Lessor) may remove the Pass Through Trustee or (ii) subject to Section 6.6
hereof, any Certificateholder who has been a bona fide Holder of a Certificate
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Pass Through Trustee and the appointment of a successor Pass Through Trustee.
(e) If a Responsible Officer of the Pass Through Trustee shall
obtain Actual Knowledge of an Avoidable Tax (as hereinafter defined) which has
been or is likely to be asserted, the Pass Through Trustee shall promptly
notify the Facility Lessees and the applicable Owner Lessor thereof and shall,
within 30 days of such notification, resign hereunder unless within such 30-day
period the Pass Through Trustee shall have received notice that the Facility
Lessees or the applicable Owner Lessor has agreed to pay such tax. The Facility
Lessees shall promptly appoint a successor Pass Through Trustee in a
jurisdiction where there are no Avoidable Taxes. As used herein an "Avoidable
Tax" means a state or local tax: (i) upon (w) the Pass Through Trust, (x) the
Trust Property, (y) Holders of the Certificates or (z) the Pass Through Trustee
for which the Pass Through Trustee is entitled to seek reimbursement from the
Trust Property, and (ii) that would be avoided if the Pass Through Trustee were
located in another state, or jurisdiction within a state, within the United
States. A tax shall not be an Avoidable Tax if the Facility Lessees or the
Owner Lessors shall agree to pay, and shall pay, such tax.
36
(f) If the Pass Through Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Pass
Through Trustee for any cause, the Facility Lessees (or, following the
occurrence of a Lease Event of Default, the applicable Owner Lessor) shall
promptly appoint a successor Pass Through Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Pass Through Trustee shall be appointed by Act of the Holders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Pass Through Trust, delivered to the
Facility Lessees, the Owner Lessors, the Owner Participants, the Indenture
Trustees and the retiring Pass Through Trustee, the successor Pass Through
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Pass Through Trustee and supersede the successor Pass
Through Trustee appointed as provided above. If no successor Pass Through
Trustee shall have been so appointed as provided above and accepted such
appointment in the manner hereinafter provided, any Certificateholder who has
been a bona fide Holder of a Certificate for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Pass Through Trustee.
(g) The successor Pass Through Trustee shall give notice of the
resignation and removal of the Pass Through Trustee and appointment of the
successor Pass Through Trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Certificates as their
names and addresses appear in the Register. Each notice shall include the name
of such successor trustee and the address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor. Every successor
Pass Through Trustee appointed hereunder shall execute, acknowledge and deliver
to the Facility Lessees, the Owner Lessors and to the retiring Pass Through
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Pass Through Trustee shall become effective and such
successor Pass Through Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Pass Through Trustee; but, on request of any Facility Lessee (or,
following the occurrence of a Lease Event of Default, the applicable Owner
Lessor) to the successor Pass Through Trustee, such retiring Pass Through
Trustee shall execute and deliver an instrument transferring to such successor
Pass Through Trustee all the rights, powers and trusts of the retiring Pass
Through Trustee and shall duly assign, transfer and deliver to such successor
Pass Through Trustee all property and money held by such retiring Pass Through
Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 7.7. Upon request of any such successor Pass Through Trustee, the
Facility Lessees, the Owner Lessors, the retiring Pass Through Trustee and such
successor Pass Through Trustee shall execute and deliver any and all
instruments containing such provisions as shall be necessary or desirable to
transfer and confirm to, and for more fully and certainly vesting in, such
successor Pass Through Trustee all such rights, powers and trusts.
No successor Pass Through Trustee shall accept its appointment unless
at the time of such acceptance such successor Pass Through Trustee shall be
qualified and eligible under this Section 7.
Section 7.11 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Pass Through Trustee may be merged or
converted or with which it may
37
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Pass Through Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Pass Through Trustee, shall be the successor of the Pass Through Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Section 7, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Certificates shall have
been authenticated, but not delivered, by the Pass Through Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Pass Through Trustee may adopt such authentication and deliver
the Certificates so authenticated with the same effect as if such successor
Pass Through Trustee had itself authenticated such Certificates.
Section 7.12 Maintenance of Agencies.
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where Certificates may be
presented or surrendered for registration of transfer or for exchange, and for
payment thereof and where notices and demands to or upon the Pass Through
Trustee in respect of the Certificates or of this Pass Through Trust Agreement
may be served. Written notice of the location of each such other office or
agency and of any change of location thereof shall be given by the Pass Through
Trustee to the Facility Lessees, the Owner Lessors, the Owner Participants,
each Indenture Trustee and the Certificateholders. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Pass Through Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder. Each such Authorized Agent shall be a bank or trust company, shall
be a corporation organized and doing business under the laws of the United
States or any state, with a combined capital and surplus of at least
$150,000,000, and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by Federal or state authorities. The Pass
Through Trustee shall initially be the Paying Agent and, as provided in Section
3.4, Registrar hereunder. Each Registrar shall furnish to the Pass Through
Trustee (unless they are the same entity), at stated intervals of not more than
six months, and at such other times as the Pass Through Trustee may request in
writing, a copy of the Register.
(c) Any Person into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, consolidation or conversion to which any Authorized Agent shall be
a party, or any Person succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor Person is otherwise eligible under this Section 7.12, without
the execution or filing of any paper or any further act on the part of the
parties hereto or such Authorized Agent or such successor Person.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Pass Through Trustee, the Facility Lessees, the
Owner Lessors, the Owner Participants and each Indenture Trustee. The Facility
Lessees (or, following the occurrence of a Lease Event of Default, the Owner
Lessor) may, and at the request of the Pass Through Trustee shall, at any time
terminate the agency of any Authorized Agent by giving written notice of
38
termination to such Authorized Agent and to the Pass Through Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section 7.12 (when,
in either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Facility Lessees (or,
following the occurrence of a Lease Event of Default, the applicable Owner
Lessor) shall promptly appoint one or more qualified successor Authorized
Agents reasonably satisfactory to the Pass Through Trustee, to perform the
functions of the Authorized Agent which has resigned or whose agency has been
terminated or who shall have ceased to be eligible under this Section 7.12. The
Facility Lessees (or, following the occurrence of a Lease Event of Default, the
applicable Owner Lessor) shall give written notice of any such appointment made
by it to the Pass Through Trustee, the Facility Lessees, the Owner Lessors and
each Indenture Trustee; and in each case the Pass Through Trustee shall mail
notice of such appointment to all Holders as their names and addresses appear
on the Register.
(e) Each Facility Lessee agrees to pay, or cause to be paid, from
time to time to each Authorized Agent the compensation as set forth in the
schedule agreed to by each Authorized Agent and such Facility Lessee for its
services and to reimburse it for its reasonable expenses.
Section 7.13 Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited in a non interest bearing account and held in
trust for the benefit of the Holders of the Certificates entitled to such
payment, subject to the provisions of this Section 7.13. Moneys so deposited
and held in trust shall constitute a separate trust fund for the benefit of the
Holders of the Certificates with respect to which such money was deposited.
The Pass Through Trustee will cause each Paying Agent other than the
Pass Through Trustee to execute and deliver to it an instrument in which such
Paying Agent shall agree with the Pass Through Trustee, subject to the
provisions of this Section 7.13, that such Paying Agent will:
(1) hold all sums held by it for payments on Certificates in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Pass Through Trustee notice in writing of any
default by any obligor upon the Certificates in the making of any such
payment; and
(3) at any time during the continuance of any such default,
upon the written request of the Pass Through Trustee, forthwith pay to the
Pass Through Trustee all sums so held in trust by such Paying Agent.
The Pass Through Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Pass Through Trust Agreement
or for any other purpose, direct any Paying Agent to pay to the Pass Through
Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Pass Through Trustee upon the same trusts as those upon which such sums
were held by such Paying Agent; and, upon such payment by any Paying Agent
39
to the Pass Through Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14 Registration of Lessor Notes in Pass Through Trustee's
Name. The Pass Through Trustee agrees that all Lessor Notes and Permitted
Government Investments, if any, shall be issued in the name of the Pass Through
Trustee or its nominee and held by the Pass Through Trustee, or, if not so
held, the Pass Through Trustee or its nominee shall be reflected as the owner
of such Lessor Notes or Permitted Government Investments, as the case may be,
in the register of the issuer of such Lessor Notes or Permitted Government
Investments under the applicable provisions of the Uniform Commercial Code in
effect where the Pass Through Trustee holds such Lessor Notes or Permitted
Government Investments, or other applicable law then in effect.
Section 7.15 Withholding Taxes; Information Reporting. The Pass Through
Trustee, as trustee, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Certificates any and all withholding taxes applicable thereto as
required by law. The Pass Through Trustee agrees (i) to act as such withholding
agent and, in connection therewith, whenever any present or future taxes or
similar charges are required to be withheld with respect to any amounts payable
in respect of the Certificates, to withhold such amounts and timely pay the
same to the appropriate authority in the name of and on behalf of the Holders
of the Certificates, (ii) that it will file any necessary withholding tax
returns or statements when due, and (iii) that, as promptly as possible after
the payment thereof, it will deliver to each Holder of a Certificate
appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from
time to time. The Pass Through Trustee agrees to file any other information
reports as it may be required to file under United States law. Any amounts
withheld and paid to a relevant taxing authority pursuant to this Section 7.15
shall be deemed to have been paid to the related Certificateholders for all
purposes under the Operative Documents.
Section 7.16 Pass Through Trustee's Liens. The Pass Through Trustee, in
its individual capacity, agrees that it will at its own cost and expense
promptly take any action as may be necessary to duly discharge and satisfy in
full any mortgage, pledge, lien, charge, encumbrance, security interest or
claim on or with respect to the Trust Property which is either (i) attributable
to the Pass Through Trustee in its individual capacity and which is unrelated
to the transactions contemplated by this Pass Through Trust Agreement or any
other applicable Operative Document, or (ii) which is attributable to the Pass
Through Trustee as trustee hereunder or in its individual capacity and which
arise out of acts or omissions which are prohibited by this Pass Through Trust
Agreement.
SECTION 8. CERTIFICATEHOLDERS' LISTS AND REPORTS
Section 8.1 The Facility Lessees to Furnish Pass Through Trustee with Names
and Addresses of Certificateholder. Each Facility Lessees will furnish to the
Pass Through Trustee within fifteen days after each Record Date with respect to
a Scheduled Payment, and at such other times as the Pass Through Trustee may
request in writing, a list, in such form as the Pass Through Trustee may
reasonably require, of all information in the possession or control of such
Facility Lessee as to the names and addresses of the Holders of Certificates, in
each case as of a
40
date not more than sixty days prior to the time such list is furnished;
provided, however, that so long as the Pass Through Trustee is the sole
Registrar, no such list need be furnished; and provided, further, however, that
no such list need be furnished for so long as a copy of the Register is being
furnished to the Pass Through Trustee pursuant to Section 7.12(b).
Section 8.2 Preservation of Information. The Pass Through Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders of Certificates contained in the most recent list
furnished to the Pass Through Trustee as provided in Section 7.12(b) or Section
8.1, as the case may be, and the names and addresses of Holders of Certificates
received by the Pass Through Trustee in its capacity as Registrar, if so
acting. The Pass Through Trustee may destroy any list furnished to it as
provided in Section 7.12(b) or Section 8.1, as the case may be, upon receipt of
a new list so furnished.
Section 8.3 Reports by the Facility Lessees. Each Facility Lessee shall,
at any time that the Certificates shall be subject to the Trust Indenture Act,
comply with Section 314 of the Trust Indenture Act and shall file, furnish and
deliver the reports, information, documents, certificates and opinions required
thereunder, and, at any time that the Certificates shall be subject to the
Trust Indenture Act, acknowledge and agree that, for purposes of Section 314 of
the Trust Indenture Act, each Facility Lessee shall be considered to be the
"obligor" upon the Certificates. Without limiting the generality of the
foregoing, at any time that the Certificates shall be subject to the Trust
Indenture Act, each Facility Lessee shall deliver to the Pass Through Trustee
the annual certificate required under clause (4) of Section 314(a) of the Trust
Indenture Act within 120 days following the end of each fiscal year of such
Facility Lessee (which ends on December 31) ending after the date hereof. The
provisions of this Section 8.3 shall not be construed to impose any obligation
or liability on the Facility Lessees to pay any of the principal, premium, if
any, or interest in respect of the Lessor Notes or the Certificates.
Section 8.4 Reports by the Pass Through Trustee. At any time that the
Certificates shall be subject to the Trust Indenture Act, the Pass Through
Trustee shall transmit, on or before May 15 of each year, reports with respect
to events described in Section 313(a) of the Trust Indenture Act in accordance
with and to the extent required under Section 313(a) of the Trust Indenture
Act. Additionally, the Pass Through Trustee shall comply with the reporting
requirements imposed under Treasury Regulation 1.67.
SECTION 9. SUPPLEMENTAL TRUST AGREEMENTS
Section 9.1 Supplemental Trust Agreement Without Consent of
Certificateholders. Without the consent of the Holder of any Certificates, the
Facility Lessees may, and the Pass Through Trustee (subject to Section 9.3)
shall, at any time and from time to time enter into one or more agreements
supplemental hereto, in form satisfactory to the Pass Through Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to any
Facility Lessee and the assumption by any such successor of the
obligations of such Facility Lessee herein contained;
41
(2) to add to the covenants of the Facility Lessees, for the
protection of the Holders of the Certificates;
(3) to surrender any right or power herein conferred upon the
Facility Lessees;
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or to make any other provisions with respect to matters
or questions arising under this Pass Through Trust Agreement; provided
that any such action will not adversely affect in any material respect the
interests of the Holders of the Certificates;
(5) to correct or amplify the description of property that
constitutes Trust Property or the conveyance of such property to the Pass
Through Trustee;
(6) to evidence and provide for a successor Pass Through
Trustee;
(7) to comply with requirements of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which the
Certificates are listed, or any regulatory body;
(8) at any time that the Certificates shall be subject to the
Trust Indenture Act, to modify, eliminate or add to the provisions of this
Pass Through Trust Agreement to the extent as shall be necessary to
qualify or continue the qualification of this Pass Through Trust Agreement
(including any supplemental agreement) under the Trust Indenture Act (if
such qualification is required) or under any similar Federal statute
hereafter enacted, or to add to this Pass Through Trust Agreement such
other provisions as may be expressly permitted by the Trust Indenture Act,
excluding, however, the provisions referred to in Section 316(a)(2) of the
Trust Indenture Act as in effect at the date as of which this instrument
was executed or any corresponding provision in any similar Federal statute
hereafter enacted;
(9) to modify, amend or supplement any provision herein to
reflect changes relating to the assumption and substitution of any Lessor
Note pursuant to Section 2.10(b) of the Collateral Trust Indenture; or
(10) to add, eliminate, or change any provision under this
Pass Through Trust Agreement that will not adversely affect the interests
of the Certificateholders in any material respect;
provided that in each case the Pass Through Trustee shall have received an
opinion of counsel, which may be counsel to the Facility Lessees, to the effect
that such supplemental agreement does not cause the Pass Through Trust to
become taxable as an "association" within the meaning of Treasury Regulation
Section 301.7701-4 or to be taxable as other than a pass through entity for
Federal income tax purposes.
Section 9.2 Supplemental Trust Agreements with Consent of
Certificateholders. With the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
of the Fractional Undivided Interests evidenced by all
42
Certificates at the time Outstanding (determined as provided in Section 1.4(c)
hereof), by Act of said Holders delivered to the Facility Lessees and the Pass
Through Trustee, the Facility Lessees may (with the consent of the Owner
Lessors, such consent not to be unreasonably withheld), and the Pass Through
Trustee (subject to Section 9.3 hereof) shall, enter into an agreement or
agreements supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Pass
Through Trust Agreement or of modifying in any manner the rights and
obligations of the Holders of the Certificates under this Pass Through Trust
Agreement; provided, however, that no such supplemental agreement shall,
without the consent of the Holder of each Outstanding Certificate affected
thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Pass Through Trustee of payments on the Lessor Notes held
in the Pass Through Trust, or distributions that are required to be made
herein on any Certificate of such Pass Through Trust, or change any date
of payment on any such Certificate, or change the place of payment where,
or the coin or currency in which, any such Certificate is payable, or
impair the right of any Holder of any such Certificate to institute suit
for the enforcement of any such payment or distribution on or after the
Distribution Date or Special Distribution Date applicable thereto; or
(2) except as provided in this Pass Through Trust Agreement,
permit the disposition of any Lessor Note in the Trust Property, or permit
the creation of any lien on the Trust Property, or otherwise deprive any
Certificateholder of the benefit of the ownership of the Lessor Notes held
in the Pass Through Trust or the lien of the related Collateral Trust
Indenture; or
(3) reduce the percentage of the aggregate Fractional
Undivided Interests which is required to approve any such supplemental
agreement, or reduce such percentage required for any waiver provided for
in this Pass Through Trust Agreement.
Notwithstanding the foregoing, no such supplemental agreement shall be entered
into unless the Pass Through Trustee shall have received an opinion of counsel,
which may be counsel to the Facility Lessees or any of them, to the effect that
such supplemental agreement does not cause the Pass Through Trust to become
taxable as an "association", within the meaning of Treasury Regulation Section
301.7701-4 or to be taxable as other than a pass through entity for Federal
income tax purposes.
It shall not be necessary for any Act of Certificateholders under
this Section 9.2 to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3 Documents Affecting Immunity or Indemnity. If in the opinion
of the Pass Through Trustee any document required to be executed by it pursuant
to the terms of Section 9.1 or 9.2 affects any interest, right, duty, immunity
or indemnity in favor of the Pass Through Trustee under this Pass Through Trust
Agreement, the Pass Through Trustee may in its discretion decline to execute
such document.
43
Section 9.4 Execution of Supplemental Trust Agreements. In executing, or
accepting the additional trusts created by, any supplemental agreement
permitted by this Section 9 or the modification thereby of the trusts created
by this Pass Through Trust Agreement, the Pass Through Trustee shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Pass Through Trust
Agreement.
Section 9.5 Effect of Supplemental Trust Agreements. Upon the execution
of any supplemental agreement under this Section 9, this Pass Through Trust
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Pass Through Trust Agreement for all
purposes; and every Holder of Certificates theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.6 Reference in Certificates to Supplemental Trust Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Section 9 may bear a notation in form
approved by the Pass Through Trustee as to any matter provided for in such
supplemental agreement; and, in such case, suitable notation may be made upon
Outstanding Certificates after proper presentation and demand.
Section 9.7 Conformity with Trust Indenture Act. Every supplemental
agreement under this Section 9 executed at a time that the Certificates shall
be subject to the Trust Indenture Act, shall conform to requirements of the
Trust Indenture Act as in effect on the date such supplemental agreement is
executed.
SECTION 10. AMENDMENTS AND CONSENTS TO COLLATERAL TRUST INDENTURE AND OTHER
OPERATIVE DOCUMENTS
(a) In the event that the Pass Through Trustee, as holder of any
Lessor Note in trust for the benefit of the Certificateholders, receives a
request for a consent to any amendment, modification, waiver or supplement
under the Collateral Trust Indenture or other Operative Document that requires
the consent of the holder of such Lessor Note, the Pass Through Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement to each Certificateholder registered on the Register as of such
date. Any such notice shall describe the proposed amendment, modification,
waiver or supplement (or attach a copy thereof). The Pass Through Trustee shall
request from the Certificateholders Directions as to (i) whether or not to
direct the applicable Indenture Trustee to take or refrain from taking any
action which a holder of such Lessor Note has the option to direct, (ii)
whether or not to give or execute any waivers, consents, amendments,
modifications or supplements as a holder of such Lessor Note and (iii) how to
vote any Lessor Note if a vote has been called for with respect thereto. Any
such request shall specify a date by which Certificateholders are requested to
respond. Provided such a request for Certificateholder Direction shall have
been made, in directing any action or casting any vote or giving any consent as
the holder of any Lessor Note, the Pass Through Trustee shall vote or consent
with respect to such Lessor Note in the same proportion as the Certificates
were actually voted by Acts of Holders delivered to the Pass Through Trustee at
least two Business Days before the Pass Through Trustee directs such action or
casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to Section 6.4, in the case that an Event of Default hereunder shall
have occurred and be
44
continuing, the Pass Through Trustee may, in its own discretion and at its own
direction, consent and notify the applicable Indenture Trustee of such consent
to any amendment, modification, waiver or supplement under the applicable
Collateral Trust Indenture or other Operative Document.
(b) With respect to consents, approvals, waivers and authorizations
which under the terms of Section 8 of the applicable Collateral Trust Indenture
may be given by the applicable Indenture Trustee without the necessity of the
consent of any of the holders of Lessor Notes, no consent, approval, waiver or
authorization shall be required hereunder on the part of the Pass Through
Trustee or the Certificateholders.
SECTION 11. TERMINATION OF PASS THROUGH TRUST
Section 11.1 Termination of the Pass Through Trust. The respective
obligations and responsibilities of the Facility Lessees and the Pass Through
Trustee created hereby and the Pass Through Trust created hereby shall
terminate upon the distribution to all Certificateholders of all amounts
required to be distributed to them pursuant to this Pass Through Trust
Agreement and the disposition of all property held as part of the Trust
Property; provided, however, that if and to the extent that any of the options,
rights and privileges granted under this Pass Through Trust Agreement, would,
in the absence of the limitation imposed by this sentence, be invalid or
unenforceable as being in violation of the rule against perpetuities or any
other rule or law relating to the vesting of interest in property or the
suspension of the power of alienation of property, then it is agreed that
notwithstanding any other provision of this Pass Through Trust Agreement, such
options, rights and privileges, subject to the respective conditions hereof
governing the exercise of such options, rights and privileges, will be
exercisable only during (a) the longer of (i) a period which will end
twenty-one (21) years after the death of the last survivor of the descendants
living on the date of the execution of this Pass Through Trust Agreement of the
following Presidents of the United States: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ or (ii) the period provided under the
Uniform Statutory Rule Against Perpetuities or (b) the specific applicable
period of time expressed in this Pass Through Trust Agreement, whichever of (a)
or (b) is shorter.
Notice of any termination, specifying the Distribution Date (or
Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Pass Through Trustee
for payment of the final distribution and cancellation (at maturity, redemption
or otherwise), shall be mailed promptly by the Pass Through Trustee to
Certificateholders not earlier than the 60th day and not later than the 20th
day next preceding such final distribution specifying (A) the Distribution Date
(or Special Distribution Date, as the case may be) upon which final payment of
the Certificates will be made upon presentation and surrender of Certificates
at the office or agency of the Pass Through Trustee therein specified, (B) the
amount of any such final payment, and (C) that the Record Date otherwise
applicable to such Distribution Date (or Special Distribution Date, as the case
may be) is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office or agency of the Pass Through
Trustee therein specified. The Pass Through Trustee shall give such notice to
the Registrar at the time such notice is given to Certificateholders. Upon
presentation
45
and surrender of the Certificates, the Pass Through Trustee shall cause to be
distributed to Certificateholders amounts distributable on such Distribution
Date or Special Distribution Date, as the case may be, pursuant to Section 4.2
hereof.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Pass Through Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. In the event that any money held by the Pass Through Trustee for the
payment of distributions on the Certificates shall remain unclaimed for two
years (or such lesser time as the Pass Through Trustee shall be satisfied,
after sixty days' written notice from the Facility Lessees, is one month prior
to the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Pass Through Trustee shall pay to
each Indenture Trustee the appropriate amount of money relating to such
Indenture Trustee and shall give written notice thereof to the Owner Lessors,
the Owner Participants and the Facility Lessees.
SECTION 12. MISCELLANEOUS PROVISIONS
Section 12.1 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this Pass
Through Trust Agreement or the Pass Through Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Pass Through Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 12.2 Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Pass
Through Trust, the Fractional Undivided Interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Pass
Through Trust or for any reason whatsoever, and Certificates (upon
authentication thereof by the Pass Through Trustee pursuant to Section 3.2
hereof) are and shall be deemed fully paid. No Certificateholder shall have any
right (except as expressly provided herein) to vote or in any manner otherwise
control the operation and management of the Trust Property, the Pass Through
Trust established hereunder, or the obligations of the parties hereto, nor
shall anything set forth herein, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association.
Section 12.3 Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all communications and notices provided for herein to a
party hereto shall be in writing or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including by overnight mail or courier service, (b)
in the case of notice by United States mail, certified or registered, postage
prepaid, return receipt requested, upon receipt thereof, or (c) in the case of
notice by such a telecommunications device, upon transmission thereof, provided
such transmission is promptly confirmed by either of the methods set forth in
clauses (a) or (b) above, in each case addressed to such party and copy party
at its address set forth below or at such other address as such party or copy
party may from time to time designate by written notice to the other party:
46
If to South Point:
South Point Energy Center, LLC
c/o Calpine Northbrook Office
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Broad River:
Broad River Energy LLC
c/o Calpine Northbrook Office
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to RockGen:
RockGen Energy LLC
c/o Calpine Northbrook Office
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Pass Through Trustee:
State Street Bank and Trust Company of Connecticut, National
Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square
Hartford, CT 06103
Attention: Corporate Trust Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
47
Section 12.4 Successors and Assigns.
(a) This Pass Through Trust Agreement shall be binding upon and
shall inure to the benefit of, and shall be enforceable by, the parties hereto
and their respective successors and assigns as permitted by and in accordance
with the terms hereof.
(b) Except as expressly provided herein or in the other Operative
Documents, no party hereto may assign its interests or transfer its obligations
herein without the consent of the other parties hereto.
Section 12.5 Business Day. In any case where any Distribution Date or
Special Distribution Date relating to any Certificate is not a Business Day,
then (notwithstanding any other provision of this Pass Through Trust Agreement)
the payment otherwise payable on such date shall be payable on the next
succeeding Business Day with the same force and effect as if made on such
Distribution Date or Special Distribution Date and, provided that such payment
is made on such succeeding Business Day, no interest shall accrue on the amount
of such payment from and after such scheduled date to the time of such payment
on such next succeeding Business Day.
Section 12.6 GOVERNING LAW. THIS PASS THROUGH TRUST AGREEMENT, THE
CERTIFICATES AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE IN ALL RESPECTS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF,
OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401).
Section 12.7 Severability. Any provision of this Pass Through Trust
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 12.8 Benefits of Pass Through Trust Agreement. Nothing in this
Pass Through Trust Agreement or in the Certificates, express or implied, shall
give to any person, other than the Facility Lessees, the Pass Through Trustee,
the Owner Lessors and each Indenture Trustee, and their respective successors,
and the Holders of Certificates as expressly provided herein, any benefit or
any legal or equitable right, remedy or claim under this Pass Through Trust
Agreement.
Section 12.9 Counterparts. This Pass Through Trust Agreement may be
executed by the parties hereto in 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 12.10 Headings and Table of Contents. The headings of the
sections of this Pass Through Trust Agreement and the Table of Contents are
inserted for purposes of convenience
48
only and shall not be construed to affect the meaning or construction of any of
the provisions hereof.
Section 12.11 Further Assurances. Each party hereto will promptly and
duly execute and deliver such further documents and assurances for and take
such further action reasonably requested by the other party, all as may be
reasonably necessary to carry out more effectively the intent and purpose of
this Pass Through Trust Agreement.
Section 12.12 Statement of Intent. It is intended that, if the Pass
Through Trust were ever to be classified as a partnership for Federal income
tax purposes, that the Pass Through Trust be excluded from the application of
Subchapter K of the Internal Revenue Code, in accordance with Treasury
Regulation 1.761-2(b)(2)(ii).
Section 12.13 RockGen. Notwithstanding anything herein to the contrary,
until such time as one or more of the RockGen Owner Lessors has issued Series B
Lessor Notes pursuant to a Collateral Trust Indenture, RockGen shall have no
obligations or responsibilities under this Pass Through Trust Agreement,
including, without limitation, any obligation to pay any amounts due hereunder.
49
IN WITNESS WHEREOF, the Facility Lessees and the Pass Through Trustee
have caused this Pass Through Trust Agreement to be duly executed and delivered
by their respective officers thereunto duly authorized.
SOUTH POINT ENERGY CENTER, LLC
By: ___________________________
Name:
Title:
BROAD RIVER ENERGY LLC
By: ___________________________
Name:
Title:
ROCKGEN ENERGY LLC
By: ___________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee
By: ___________________________
Name:
Title:
SCHEDULE 1
Participation Agreements
The Participation Agreement providing for Lease Transactions to be
financed by the purchase of Lessor Notes hereunder, and the parties thereto,
are as follows:
South Point
Participation Agreement, dated October 18, 2001, by and between South Point
Energy Center, LLC, as the Facility Lessee, South Point OL-1, LLC, as Owner
Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-1, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between South Point
Energy Center, LLC, as the Facility Lessee, South Point OL-2, LLC, as Owner
Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-2, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between South Point
Energy Center, LLC, as the Facility Lessee, South Point OL-3, LLC, as Owner
Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-3, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between South Point
Energy Center, LLC, as the Facility Lessee, South Point OL-4, LLC, as Owner
Lessor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-4, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
SCH 1-1
Broad River
Participation Agreement, dated October 18, 2001, by and between Broad River
Energy LLC, as the Facility Lessee, Broad River OL-1, LLC, as Owner Lessor,
▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-1, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between Broad River
Energy LLC, as the Facility Lessee, Broad River OL-2, LLC, as Owner Lessor,
▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-2, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between Broad River
Energy LLC, as the Facility Lessee, Broad River OL-3, LLC, as Owner Lessor,
▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-3, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between Broad River
Energy LLC, as the Facility Lessee, Broad River OL-4, LLC, as Owner Lessor,
▇▇▇▇▇ Fargo Bank Northwest, National Association, not in its individual
capacity, except as expressly provided, but solely as Lessor Manager, Calpine
Corporation, as Guarantor, SBR OP-4, LLC, as Owner Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Indenture
Trustee, and State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, except as expressly provided, but
solely as Pass Through Trustee.
RockGen
Participation Agreement, dated October 18, 2001, by and between RockGen Energy
LLC, as the Facility Lessee, RockGen OL-1, LLC, as Owner Lessor, ▇▇▇▇▇ Fargo
Bank Northwest, National Association, not in its individual capacity, except as
expressly provided, but solely as Lessor Manager, Calpine Corporation, as
Guarantor, SBR OP-1, LLC, as Owner Participant, State Street Bank and Trust
SCH. 1-2
Company of Connecticut, National Association, not in its individual capacity,
except as expressly provided, but solely as Pass Through Trustee.
Participation Agreement, dated October 18, 2001, by and between RockGen Energy
LLC, as the Facility Lessee, RockGen OL-2 LLC, as Owner Lessor, ▇▇▇▇▇ Fargo
Bank Northwest, National Association, not in its individual capacity, except as
expressly provided, but solely as Lessor Manager, Calpine Corporation, as
Guarantor, SBR OP-2 LLC, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as expressly provided, but solely as Indenture Trustee, and State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Pass Through
Trustee.
Participation Agreement, dated October 18, 2001, by and between RockGen Energy
LLC, as the Facility Lessee, RockGen OL-3 LLC, as Owner Lessor, ▇▇▇▇▇ Fargo
Bank Northwest, National Association, not in its individual capacity, except as
expressly provided, but solely as Lessor Manager, Calpine Corporation, as
Guarantor, SBR OP-3 LLC, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as expressly provided, but solely as Indenture Trustee, and State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Pass Through
Trustee.
Participation Agreement, dated October 18, 2001, by and between RockGen Energy
LLC, as the Facility Lessee, RockGen OL-4 LLC, as Owner Lessor, ▇▇▇▇▇ Fargo
Bank Northwest, National Association, not in its individual capacity, except as
expressly provided, but solely as Lessor Manager, Calpine Corporation, as
Guarantor, SBR OP-4 LLC, as Owner Participant, State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity,
except as expressly provided, but solely as Indenture Trustee, and State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual capacity, except as expressly provided, but solely as Pass Through
Trustee.
SCH. 1-3
EXHIBIT A
FORM OF CERTIFICATE
[LEGEND IF CERTIFICATE IS A RESTRICTED CERTIFICATE]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTION WHICH IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT, RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO THE FACILITY LESSEES OR ANY
OF THEM OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE PASS THROUGH TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
CERTIFICATE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE PASS THROUGH
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE FACILITY LESSEES THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS CERTIFICATE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE PASS THROUGH
TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST
EXH A-1
AGREEMENT CONTAINS A PROVISION REQUIRING THE PASS THROUGH TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
BY ITS ACQUISITION OF ANY CERTIFICATE, THE HOLDER THEREOF WILL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED, ON EACH DAY FROM THE DATE ON WHICH
THE HOLDER ACQUIRES THE CERTIFICATE THROUGH AND INCLUDING THE DATE ON WHICH THE
HOLDER DISPOSES OF ITS INTEREST IN SUCH CERTIFICATE, EITHER THAT (A) IT IS NOT
A PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR OTHER PLAN, AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE
ASSETS OF ANY PLAN SUBJECT TO ERISA OR OTHER PLAN, OR A GOVERNMENTAL PLAN WHICH
IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO
THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ITS PURCHASE, HOLDING AND
DISPOSITION OF SUCH CERTIFICATE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN, ANY SUBSTANTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW) FOR
WHICH AN EXEMPTION IS NOT AVAILABLE, ALL THE CONDITIONS OF WHICH ARE SATISFIED.
EXH ▇-▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ RIVER AND ROCKGEN SERIES B PASS THROUGH TRUST
9.825% Pass Through Certificate, Series B
CUSIP: 839521 AC 5
ISIN: US839521AC56
Final Distribution Date: May 30, 2019
evidencing a fractional undivided interest in a
trust, the property of which includes certain notes
secured by certain property leased or subleased to
South Point Energy Center, LLC, Broad River Energy
LLC and RockGen Energy LLC
Certificate No._______ $[ ] Fractional Undivided Interest
THIS CERTIFIES THAT _________________, for value received, is the
registered owner of a $______________ (__________ dollars) Fractional Undivided
Interest in the South Point, Broad River and RockGen Series B Pass Through
Trust (the "Pass Through Trust") created pursuant to a Pass Through Trust
Agreement, dated as of October 18, 2001 (the "Agreement") among South Point
Energy Center, LLC, a Delaware limited liability company, Broad River Energy
LLC, a Delaware limited liability company, RockGen Energy LLC, a Wisconsin
limited liability company (individually, a "Facility Lessee" and collectively,
the "Facility Lessees") and State Street Bank and Trust Company of Connecticut,
National Association, as trustee (the "Pass Through Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. The initial
Fractional Undivided Interest evidenced hereby may change from time to time in
accordance with the terms of the Agreement, such changes as evidenced by the
records of the Pass Through Trustee, which shall be conclusive absent manifest
error. To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate is
one of the duly authorized Certificates designated as "9.825% Pass Through
Certificates, Series B" (herein called the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. The property of
the Pass Through Trust includes certain Lessor Notes (the "Trust Property").
Each Lessor Note is secured by a security interest and lien over the Undivided
Interest subject to the Lease relating to the Collateral Trust Indenture under
which such Lessor Note was issued and certain other related property described
in such Collateral Trust Indenture, and liability thereunder is limited to the
income and proceeds of such security.
Subject to and in accordance with the terms of the Agreement, from
funds then available to the Pass Through Trustee, there will be distributed on
each May 30 and November 30 (a "Distribution Date"), commencing on May 30,
2002, to the person in whose name this
EXH A-3
Certificate is registered at the close of business on the day of the month
which is fifteen days preceding the Distribution Date, an amount in respect of
the Scheduled Payments on the Lessor Notes due on such Distribution Date, the
receipt of which has been confirmed by the Pass Through Trustee, equal to the
product of the percentage interest in the Pass Through Trust evidenced by this
Certificate and an amount equal to the sum of such Scheduled Payments. Subject
to and in accordance with the terms of the Agreement, in the event that Special
Payments on the Lessor Notes are received by the Pass Through Trustee, from
funds then available to the Pass Through Trustee, there shall be distributed on
the applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the day of the month
which is fifteen days preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Lessor Notes, the receipt of which has
been confirmed by the Pass Through Trustee, equal to the product of the
percentage interest in the Pass Through Trust evidenced by this Certificate and
an amount equal to the sum of such Special Payments so received. The Special
Distribution Date shall be determined as provided in the Agreement. If a
Distribution Date or Special Distribution Date is not a Business Day,
distribution shall be made on the immediately following Business Day with the
same effect as if made on the date on which such payment was due. The Pass
Through Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Holders of the Certificates.
Distributions on this Certificate will be made by the Pass Through
Trustee (i) if (A) The Depository Trust Company ("DTC") or its nominee is the
Certificateholder of record of this Certificate, or (B) a Certificateholder
holds a Certificate or Certificates in an aggregate amount greater than
$10,000,000, or (C) a Certificateholder holds a Certificate or Certificates in
an aggregate amount greater than $1,000,000 and so requests to the Pass Through
Trustee, by wire transfer in immediately available funds to an account
maintained by such Certificateholder with a bank, or (ii) if none of the above
apply, by check mailed to such Certificateholder at the address appearing in
the Register, without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Certificate will
be made after notice mailed by the Pass Through Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the office or agency of the Pass Through Trustee specified in such notice.
[Unless this Certificate is presented by an authorized representative
of DTC to the Facility Lessees or its agent for registration of transfer,
exchange or payment, and any Certificate issued is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co., or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL in as much as the registered owner hereof, Cede & Co., has an interest
herein.]*
Each Person who acquires or accepts this Certificate or an interest
herein will be deemed by such acquisition or acceptance to have represented and
warranted that either: (i) no
-------------------------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
EXH A-4
Plan assets have been used to purchase this Certificate or an interest herein
or (ii) the purchase and holding of this Certificate or interest herein are
either exempt from the prohibited transaction restrictions of ERISA and the
Code pursuant to one or more prohibited transaction statutory or administrative
exemptions or do not constitute a prohibited transaction under such
restrictions of ERISA and the Code.
This Certificate shall be governed by and construed in accordance
with the law of the State of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Pass Through Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Pass Through Trustee has caused this
Certificate to be duly executed.
SOUTH POINT, BROAD RIVER AND
ROCKGEN SERIES B PASS THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee
By: ___________________________
Name:
Title:
EXH A-5
[Reverse Of Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Facility Lessees, the Pass
Through Company or the Pass Through Trustee or any affiliate thereof. The
Certificates are limited in right of payment, all as more specifically set
forth in the Agreement. All payments or distributions made to
Certificateholders under the Agreement shall be made only from the Trust
Property and only to the extent that the Pass Through Trustee shall have
received sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Holder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Holder as provided in the Agreement. This Certificate does
not purport to summarize the Agreement and reference is made to the Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby. A copy of the Agreement may be examined
during normal business hours at the principal office of the Pass Through
Trustee, and at such other places, if any, designated by the Pass Through
Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Facility Lessees and the rights of the Certificateholders under the Agreement
at any time by the Facility Lessees and the Pass Through Trustee with the
consent of the Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest of the Fractional
Undivided Interests evidenced by all Certificates at the time Outstanding. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Pass Through Trustee in its capacity as
Registrar, or by any successor Registrar, duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Pass Through Trustee
and the Registrar duly executed by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Certificates of
authorized denominations evidencing the same aggregate Fractional Undivided
Interest in the Pass Through Trust will be issued to the designated transferee
or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $100,000 Fractional Undivided Interest and
any integral multiples of $1,000 in excess thereof. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of authorized denominations
EXH A-6
evidencing the same aggregate Fractional Undivided Interest in the Pass Through
Trust, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Pass Through Trustee shall require payment of an amount
sufficient to cover any tax or charge payable in connection therewith.
The Pass Through Trustee, the Facility Lessees, the Owner Lessors,
the Registrar and any agent of the Pass Through Trustee or the Registrar may
treat the person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Pass Through Trustee, the Facility
Lessees, the Owner Lessors, the Registrar nor any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Pass Through Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Agreement and the disposition of all property held as part of the Trust
Property.
EXH A-7
EXHIBIT B
FORM OF PASS THROUGH TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION
as Pass Through Trustee
By: _______________________________
Name:
Title:
EXH B-1
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
SOUTH POINT, BROAD RIVER AND ROCKGEN SERIES B PASS THROUGH TRUST
PASS THROUGH CERTIFICATES SERIES B
This is to certify that as of the date hereof with respect to
$__________ (__________ dollars) Fractional Undivided Interest of the
above-captioned securities presented or surrendered on the date hereof (the
"Surrendered Certificates") for registration of transfer, or for exchange where
the securities issuable upon such exchange are to be registered in a name other
than that of the undersigned Holder (each such transaction being a "transfer"),
the undersigned Holder (as defined in the Pass Through Trust Agreement)
certifies that the transfer of Surrendered Certificates associated with such
transfer complies with the restrictive legend set forth on the face of the
Surrendered Certificates for the reason checked below:
[ ] Transfer to South Point, Broad River and RockGen Series B Pass Through
Trust.
[ ] Transfer inside the United States to a Qualified Institutional Buyer in
compliance with Rule 144A under the Securities Act.
[ ] Transfer pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act (if available).
[ ] Transfer outside the United States in compliance with Rule 904 of the
Securities Act.
[ ] Transfer inside the United States (i) to an institutional Accredited
Investor that has previously furnished to the Pass Through Trustee a
signed letter containing certain representations and agreements relating
to restrictions on transfer and (ii) by a Holder that has previously
furnished to the Facility Lessees and the Registrar such certifications,
legal opinions or other information requested to confirm that such
transfer is in compliance with the Securities Act.
[Name of Holder]
________________
Dated: _____________, _____*
*To be dated the date of presentation or surrender
EXH C-1
EXHIBIT D
FORM OF PURCHASE LETTER FOR
INSTITUTIONAL ACCREDITED INVESTORS
_______________________
_______________________
_______________________
As Initial Purchasers in connection
with the Offering Memorandum referred
to below
c/o _____________
[Address]
[City, State, Zip]
Ladies and Gentlemen:
In connection with our proposed purchase of Pass Through
Certificates, Series B (the "Certificates") evidencing a fractional undivided
interest in one of two pass through trusts, the property of which consists of
certain notes secured by certain property leased to South Point Energy Center,
LLC, Broad River Energy LLC and RockGen Energy LLC (collectively, the "Facility
Lessees"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum") relating to the Certificates and such other information
as we deem necessary in order to make our investment decision. We acknowledge
that we have read and agree to the matters stated under the captions "Notice to
Investors" and "Plan of Distribution" in such Offering Memorandum, and the
restrictions on duplication and circulation of such Offering Memorandum.
2. We understand that any subsequent transfer of the Certificates
is subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement (the "Pass Through Trust Agreement") relating to the
Certificates and conditions set forth under "Notice to Investors" and "Plan of
Distribution" and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We understand that the offer and sale of the Certificates has
not been registered under the Securities Act, and that the Certificates may not
be offered or sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf
EXH D-1
of any accounts for which we are acting as hereinafter stated, that if we
should sell any Certificates within the time period referred to in Rule 144(k)
of the Securities Act, we will do so only (A) to the Facility Lessees or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act
to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to the Pass Through Trustee under the Pass Through Trust
Agreement, a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Certificates (the form of which
letter can be obtained from the Pass Through Trustee) and an opinion of counsel
acceptable to the Facility Lessees that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the
Certificates from us a notice advising such purchaser that resales of the
Certificates are restricted as stated herein.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
5. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
6. We are not acquiring the Certificates with a view to
distribution thereof or with any present intention of offering or selling any
Certificates, except as permitted above; provided, that the disposition of our
property and property of any accounts for which we are acting as fiduciary will
remain at all times within our control.
EXH D-2
You, the Facility Lessees and the Pass Through Trustee are entitled
to rely on this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
By: _______________________
Name:
Title:
Date:
EXH D-3